This agreement is a legal agreement between you (" Merchant") And Verifone, inc. (“Verifone”) regarding your use of Verifone’s PAYware connect service. All references herein to Verifone’s PAYware connect service include PAYware connect virtual terminal, PAYware mobile or dial services, as applicable. All references herein to “you” and “merchant” mean you and the company or other legal entity you represent. By using the PAYware connect service, you acknowledge that you have read this agreement, understand it and agree to be bound by its terms.
1. Right to Use. If you have purchased the PAYware Connect Service, subject to the terms and conditions of this Agreement, and your payment of the applicable fees, VeriFone hereby grants to Merchant a limited, non-exclusive, non- transferable, non-sublicensable right and license to (a) access and use the PAYware Connect Service via remote network access; (b) execute, download and display the features, functions and graphical interface components of PAYware Connect Service to communicate, transfer and collect data; and (c) display, download, print and reproduce any documentation provided by VeriFone as reasonably required for the use of the PAYware Connect Service. If you have purchased VeriShield Protect with the PAYware Connect Service, you may access and use the PAYware Connect Service with the VeriShield Protect data encryption service in the United States via remote network access.
If you have purchased PAYware Mobile, subject to the terms and conditions of this Agreement and Merchant’s payment of the applicable fees, VeriFone hereby grants to Merchant a limited, non-exclusive, non-transferable, non-sublicensable right and license to (a) access and use the PAYware Connect Service with the VeriShield Protect data encryption service in the United States via remote network access; (b) execute, download and display the features, functions and graphical interface components of PAYware Connect Service to communicate, transfer and collect data; (c) display, download, print and reproduce any documentation provided by VeriFone as reasonably required for the use of the PAYware Connect Service, and (d) use VeriFone’s PAYware Mobile application on Merchant’s iPhone or other VeriFone-designated device solely for the purpose of using PAYware Mobile.
Your licenses shall terminate upon any termination of this Agreement, or upon any suspension or termination of your access to the PAYware Connect Service. VeriFone may modify the PAYware Connect Service from time to time in its reasonable discretion, provided that such modifications shall not materially diminish the functionality thereof. You understand and agree that you shall be solely responsible for establishing and maintaining the appropriate and necessary connection between your POS systems and/or website(s) and the PAYware Connect Service. You shall be liable for the accuracy and legitimacy of all orders and information provided to VeriFone and you may not process orders on behalf of any other entity or individual.
2. Account Information. Prior to using the PAYware Connect Service, you will be required to register your account. You agree: (a) when registering for the PAYware Connect Service, to provide VeriFone with true, accurate, current, and complete information about yourself, and (b) to inform VeriFone promptly of any changes to such information to keep it true, accurate, current and complete. If you provide VeriFone with any information that is untrue, inaccurate, not current or incomplete, or VeriFone has reasonable grounds to suspect so, VeriFone has the right to suspend or terminate your access to the PAYware Connect Service. Merchant warrants and represents that it is engaged in a lawful business and is duly licensed to conduct such business and agrees that it shall fully comply with all applicable laws and regulations in connection with its use of the PAYware Connect Service.
3. Payment. In consideration of your use of the PAYware Connect Service, you agree to pay the applicable monthly fee for the PAYware Connect Service as quoted by VeriFone. All fees are exclusive of applicable taxes, including without limitation sales tax.
VeriFone may increase the monthly fee or add new fees for any new feature of the PAYware Connect
Service by written notice. Any such increase shall be effective (a) at the end of the service month following the service month in which such notice is received, if the PAYware Connect Service was purchased on a monthly recurring basis, or (b) for the subsequent renewal term, if the PAYware Connect Service was purchased on a term basis.
You may pay by credit card or by ACH. If you choose to pay by credit card, you will be required to provide VeriFone with a valid credit card for such purpose. If you choose to pay by ACH, you will be required to provide VeriFone with the ACH account information required by VeriFone for such purpose. VeriFone may charge such credit card or ACH account, as applicable, for such monthly fee on a monthly basis, on or about the anniversary date of your activation date. If payment cannot be charged to your credit card or ACH account, as applicable, or your credit card charge is returned to VeriFone for any reason, or you otherwise fail to pay the charges for the PAYware Connect Service when due, VeriFone reserves the right to pursue any and all legal remedies to collect the amounts owed by you, and to terminate your access to the PAYware Connect Service. If you choose to pay by ACH, the terms set forth at the end of this Agreement shall apply.
If you have purchased the payware connect service from a reseller, this section 3 shall not apply to you. Payment terms shall be as between you and your reseller.
4. Maintenance. VeriFone conducts routine maintenance to the PAYware Connect Service. Maintenance is generally scheduled during time periods when overall end user online activity is limited. VeriFone reserves the right to shut down the PAYware Connect Services with no notice should emergency maintenance become necessary. VeriFone’s support policies for the PAYware Connect Services are available upon request.
5. Security. VeriFone reserves the right to remove any user from the PAYware Connect Service should VeriFone determine, in its sole discretion, that the PAYware Connect Service has been compromised or in any way used inappropriately. In extreme cases, removal may occur immediately without prior notification.
6. Disclaimer of Warranties.The PAYware Connect Service and PAYware Mobile Application are provided "As is”, with all faults and, to the maximum extent permitted by law, without any warranty of any kind, express, implied or statutory, including without limitation the implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party rights. Neither verifone nor its licensors warrant that the functions of the PAYware Connect Service or the PAYware Mobile Application meet the requirements of merchant. Neither Verifone nor its licensors warrant that the operation of the PAYware Connect Service or PAYware Mobile Application will be uninterrupted or error free. Merchant acknowledges that under no circumstances does Verifone or its licensors represent or warrant that all program errors with respect to the PAYware Connect Service or the PAYware Mobile Application can be remedied. Verifone shall not be responsible for any service interruptions, including, without limitation power outages, system failures or other interruptions. No advice or information obtained by you from Verifone or from any third party about the PAYware Connect Service or PAYware Mobile Application shall create any warranty not expressly stated in this agreement.
7. Limitations of Liability.Notwithstanding anything to the contrary contained in this agreement, except to the extent prohibited by law: (A) Verifone and its licensors shall have no liability to merchant or any third party for special, incidental, indirect, exemplary, or consequential damages (including, but not limited to, loss of use, loss of business, loss of profits or revenue, goodwill or savings, downtime, or damage to, loss of or replacement of data or transactions, cost of procurement of substitute services) relating in any manner to the PAYware Connect Service or PAYware Mobile Application (whether arising from claims based in warranty, contract, tort or otherwise) , even if Verifone or any licensor has been advised of the possibility of such claim or damage; (B) in any case, Verifone's entire liability relating in any manner to the PAYware Connect Service and PAYware Mobile Application, regardless of the form or nature of the claim, shall be limited in the aggregate to the fees actually paid by merchant for the PAYware connect service under this agreement during the six (6) months prior to the claim arising; And (c) Verifone shall not be liable for any claims of third parties relating to the PAYware Connect Service or PAYware Mobile Application, and merchant shall defend Verifone from, and indemnify and hold Verifone harmless against, all such claims. The limitations contained in section 6 above and this section 7 are a fundamental part of the basis of Verifone's bargain hereunder, and Verifone would not provide the PAYware Connect Service and PAYware Mobile Application to merchant absent such limitations.
8. Term; Termination. This Agreement shall remain in effect until 12 months from date of activation, and shall continue in effect for annual renewals thereafter unless one party notifies the other party of non-renewal at least thirty (30) days prior to the renewal date. If you have purchased the payware connect service from a reseller, the term of your PAYware Connect Service shall be as agreed with your reseller.
VeriFone may terminate this Agreement upon notice to Merchant if Merchant breaches any of the terms in this Agreement, fails to pay the applicable fees for the PAYware Connect Service or upon termination of Merchant's business. Merchant may terminate this Agreement upon notice if VeriFone breaches any of the terms in this Agreement and fails to cure such breach within thirty (30) days of receipt of notice of such breach. If you have purchased the PAYware Connect Service from a reseller, this agreement shall also terminate immediately upon any termination of your agreement with your reseller for the PAYware Connect Service.
Upon the expiration or termination of this Agreement, you shall immediately discontinue any use of the PAYware Connect Services and PAYware Mobile Application. You are responsible for retrieving any data stored with VeriFone prior to any termination date. VeriFone does not provide data retrieval services. Notwithstanding anything to the contrary contained in this Agreement, Sections 3, 6, 7, 8 and 9 shall survive any expiration or termination of this Agreement.
9. General. Merchant acknowledges that the PAYware Connect Service and PAYware Mobile Application are proprietary products of VeriFone and its licensors and that (as between VeriFone and Merchant) ownership of all patents, copyrights, trademarks, trade names and other intellectual property rights relating to the PAYware Connect Service and PAYware Mobile Application will remain with VeriFone and its licensors. Except as set forth above with regard to a signed agreement, this Agreement constitutes the entire agreement between VeriFone and Merchant and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, relating to the subject matter hereof. VeriFone may unilaterally modify, amend, supplement or otherwise change this Agreement at any time without notice. This Agreement will be governed by the laws of the State of California, without regard to its conflict of law provisions. Each party consents to the exclusive jurisdiction and venue of the appropriate courts in Santa Clara County, California for all disputes arising out of or relating to this Agreement. The failure of a party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Merchant may not assign this Agreement, in whole or in part, without VeriFone’s prior written consent. Subject to the preceding sentence, this Agreement shall bind Merchant and its permitted successors and assigns. VeriFone may assign or delegate this Agreement, or any of its rights or obligations hereunder, in its sole discretion. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the court should endeavor to give the maximum effect to the parties' intentions as reflected in the provision, and that the other provisions of the Agreement shall remain in full force and effect. Notices made by VeriFone to you under this Agreement that affect VeriFone customers generally (e.g., notices of amended Agreements, updated fees, etc.) may be posted on the VeriFone Merchant Portal or may be provided upon access of the PAYware Connect Service. Notices made by VeriFone under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to VeriFone in your registration for the PAYware Connect Service or in any updated email address you provide to VeriFone in accordance with standard account information update procedures VeriFone may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon VeriFone’s sending of the email, whether or not you actually receive the email. Notices made by you to VeriFone under this Agreement must be sent to VeriFone at PAYwareNA@verifone.com. Either party may also send notices by overnight courier or certified mail. Such notices shall be deemed effective when sent. Such mailed notices for VeriFone must be sent to VeriFone’s General Counsel at 2099 Gateway Place, Suite 600, San Jose, CA 95110 or such other address as shall have been given to Merchant in writing. Such mailed notices for Merchant must be sent to the address in VeriFone’s customer database, or such other address as shall have been given to VeriFone in writing. Such mailed notices shall be deemed effective upon the earliest to occur of: (a) actual delivery; or (b) three days after mailing, addressed and postage prepaid, return receipt requested.
ACH Information
Prior to signing this Agreement, Merchant shall confirm with the bank it identifies that VeriFone’s ACH Company ID number (4990206064) is not blocked by such bank and hereby represents and warrants that it has confirmed same.
Merchant hereby authorizes VeriFone, and irrevocably constitutes and appoints VeriFone (and any officer or agent thereof, with full power of substitution) as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of Customer and in the name of Customer or in its own name (which appointment is coupled with an interest), to (a) debit directly from the banking account maintained by Customer and set forth above, the amounts owed by Customer under the Agreement (including any and all interest, taxes, fees and other amounts chargeable to the Customer under the Agreement), and (b) if necessary to initiate credit entries to the Account to reverse all or a portion of a debt. VeriFone and Customer agree that ACH transactions involving the Account must comply with the provisions of U.S. law.
Merchant undertakes to provide VeriFone with any changes to the account information set forth above. Any such change shall become effective thirty (30) days after receipt by VeriFone and Merchant expressly authorizes VeriFone to continue to debit funds from the Account in accordance with the Agreement until the effective date of such change.
If Merchant believes that any payment transactions initiated by VeriFone (or its agent) with respect to the Account is erroneous, or if Merchant needs more information about any such transaction, Merchant should contact VeriFone as soon as possible. In any event, VeriFone must hear from Merchant no later than 90 days after the date the questionable transaction FIRST appeared on the Account in order to receive a credit. VeriFone will attempt to determine whether an error occurred within ten (10) business days after VeriFone hears from Merchant and will correct any error promptly. If VeriFone needs more time, however, VeriFone may take up to forty-five (45) days to investigate Merchant’s complaint or question.
This ACH billing arrangement shall remain in full force and effect until the earlier of (a) VeriFone has received written notification from Merchant of its termination in such time and such manner as to afford VeriFone and its financial institution a commercially reasonable opportunity to act on it or (b) termination of Merchant’s obligation to pay VeriFone under the Agreement. In addition, VeriFone may terminate this ACH billing arrangement upon written notice if Merchant fails to pay any fees or other payments when due, if VeriFone is unable to direct debit Merchant’s Account because there are insufficient funds, the Account has closed or VeriFone’s direct debit attempt has been blocked. Any termination of this ACH billing arrangement shall not relieve Merchant of its payment obligations under the Agreement.