THIRD PARTY TERMS AND CONDITIONS
CAYAN LLC
Client agrees to be bound by the following Third Party Terms for any Cayan payment services, which includes hardware and software, in connection with Point of Sale Solution and provided by Cayan LLC:
Cayan Recitals and Definitions:
Cayan LLC (“Cayan”) provides numerous payment card, gateway, and other services to clients with its proprietary combination of processing software, APIs, and other software (the “Cayan Software”), through products, devices, and other hardware (the “Cayan Equipment”), and payment gateway services (the “Cayan Services”). The Cayan Software, Cayan Equipment, and Cayan Services are collectively known as the “Platform”. “Technical Documentation” means that information provided to McKesson about connecting to Cayan's APIs, as amended and modified by Cayan from time to time.
Third-Party Beneficiary. Client agrees that Cayan is an intended third-party beneficiary to this Agreement between Client and McKesson to the extent it relates to the use of the Platform.
Restrictions. Client shall not: (a) make available nor distribute all or part of the Cayan Software or Documentation to any third party by assignment, sublicense or by any other means other than as set forth in this Section 6; (b) copy, adapt, reverse engineer, decompile, disassemble, or modify, in whole or in part, any of the Cayan Software, documentation, or the executable code of the Platform; or (c) use the Cayan Software to operate in or as a time-sharing, outsourcing, or service bureau environment, or in any way allow unauthorized third party access to the Cayan Software.
Client shall comply with all security and operational requirements, policies, and procedures relating to the Cayan Services, the Cayan Equipment, and the Cayan Software in a manner and for the use contemplated by the manufacturer thereof as specified in the documentation related thereto and as may be otherwise communicated or provided by Cayan. Client shall use the Cayan Services, the Cayan Equipment, and the Cayan Software solely in the conduct of its business and in compliance with all laws, rules, and regulations of every governmental authority or card association having jurisdiction over McKesson or Client or any of the foregoing, including use with reasonable care to prevent excessive wear and tear and/or damage to any customer engagement device.
Client agrees to prominently display appropriate decals and program trademarks at each physical location, in catalogs, on websites, and on other promotional material as required by Cayan and shall not alter or remove from the Cayan Services, the Cayan Equipment, or the Cayan Software any trademarks, trade names, logos, patent, or copyright notices, or other notices or markings, or add any other notices or markings thereto. Any use of such trademarks as directed herein does not constitute, and Client shall not state or imply, an endorsement from any of the foregoing regarding Client's business.
Client acknowledges and agrees that Cayan may refuse the acceptance of business in its sole discretion in accordance with Cayan's underwriting standards and any other policies and procedures it deems appropriate and necessary.
Use of the Cayan Equipment.
If Client has purchased in its agreement with McKesson, Cayan's optional proprietary payment processing product known as GENIUS® Customer Engagement Device (the “CED”), or similar hardware provided by McKesson, and other hardware peripherals and equipment set forth and designated on the Order Schedule (collectively, the “GENIUS Equipment”), use and receipt of the GENIUS Equipment are subject to the following additional terms:
Unless provided directly by McKesson to Client, Cayan may provide the CED(s) and Cayan Equipment with the customer engagement software and encryption software pre-installed. All Cayan Equipment and the Cayan Software associated therewith must be used in accordance with the terms and conditions of this Section All Cayan Equipment that is not purchased or provided by McKesson must be returned to Cayan upon termination of expiration of this Section 6 as described below.
If Client has purchased in its agreement with McKesson certain advertisements, promotions, coupons, graphics, logos, and other content on the CED's screen display, including advertising content requested by Client (collectively, the “Advertising Content”) then, in the case of content not requested by Client, Cayan shall provide notice at least seven (7) days in advance of such placement with the opportunity for Client to reasonably opt out of the appearance of specific content appearing on the CED display. Client grants Cayan and McKesson all rights necessary to convert, publish, and distribute the Advertising Content. Cayan may, in its sole discretion, (a) refuse to publish any Advertising Content submitted to it, (b) defer publication of any Advertising Content, and (c) edit the Advertising Content for size and fit purposes. Client may not cancel any advertising purchased hereunder without providing notice in writing to McKesson. Client shall be and remain solely responsible for any Client content provided to Cayan for display on the CED, and Client shall indemnify Cayan for any intellectual property infringement or other violations related thereto.
Client shall not move the CED to another location nor subject the CED to any liens or security interests of any third party without the prior written consent of Cayan. Furthermore, Client shall not, make any alterations or additions, whether temporary or permanent in nature, to the CED(s). Neither Cayan nor McKesson will be responsible for loss or damage due to alterations or additions to, misuse or improper use of, or improper maintenance of CED(s). In the event of any failure in any manner whatsoever of CED(s) leased from McKesson, Client shall at its own expense immediately return such CED(s) to Cayan. Client shall be responsible for all use taxes on the CED(s), if any.
For any CEDs leased from McKesson, Client shall be obligated to pay McKesson for the repair or replacement expenses (the “Repair/Replace Fee”) which McKesson may incur in bringing the CED(s) up to good repair, condition, and working order, either during the term of the Agreement or following its termination. The Repair/Replace Fee per CED will be an amount not to exceed $500.00 per CED. If Client fails to deliver the CED(s) or other Cayan Equipment to Cayan as described above within ten (10) days of the Termination Effective Date, McKesson shall charge Client the corresponding Repair/Replace Fee specified in the preceding sentence which shall not relieve Client of its obligation to return the Cayan Equipment to Cayan.
Additional Terms for Use of Store and Forward Feature.
If Client has the functionality to store transactional data in the Cayan Software in circumstances when Client is without Internet connectivity and, once connectivity is restored, have the transactional data routed for processing (“Store and Forward Feature”), then Client acknowledges and agrees that (a) Client's access and use of the Store and Forward Feature is at McKesson's sole discretion, (b) Client bears the sole risk for any transactions that are not authorized once connectivity is restored, and (c) neither McKesson nor Cayan shall have liability in connection with any such unauthorized transactions or use of the Store and Forward Feature. Unless the context dictates otherwise, the term “Services” shall be deemed to include the Store and Forward Feature.
Additional terms for EMV license.
The CES provided hereunder may have embedded additional software kernels for the processing of EMV cards (the “EMV Software”) from a third party developer under a separate license with Cayan, which is sublicensed to McKesson and Client. Use of the EMV Software is subject to the following terms:
Client shall not, (i) sublicense or otherwise assign its rights to the EMV Software to any third party; (ii) attempt to copy, duplicate, modify, convert, create derivative works from or distribute all or any portion of the EMV Software; (iii) attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the EMV Software; (iv) build a product or service which competes with the EMV Software; (v) use the EMV Software for any other than Client's own use as set forth in this Section 6, and (vi) allow any unauthorized access to, or use of, the EMV Software. In addition, Client shall notify McKesson of any known unauthorized access to, or use of, the EMV Software.
Client shall indemnify and keep indemnified Cayan and their respective officers, directors, agents and employees, from and against any and all liabilities, claims, demands, costs, expenses, damages, and losses incurred or suffered by Cayan, or for which Cayan may become liable (including legal and other reasonable professional costs and expenses), arising out of any act or omission of Client, including any use or misuse of the EMV Software or the sublicense.
Miscellaneous.
Governing Law. The rights and liabilities of the parties under this Section 6 shall be governed by the laws of the State of New York, notwithstanding its conflicts of laws principles.