HEARTLAND PAYMENT SYSTEMS, LLC
ANCILLARY PRODUCTS AND SERVICES
TERMS AND CONDITIONS
Heartland Payment Systems, LLC and its affiliates (together, “Heartland”) will provide the merchant identified in the applicable Heartland order form(s) (“you,” “your” and/or “Merchant”) the software (“Software”), hardware (“Hardware”), and/or services (“Services”) identified in the Heartland order form on the condition that Merchant unconditionally accepts and complies with the following terms and conditions (the “Terms and Conditions”, and, together with the applicable order form, the “Agreement”). If Merchant does not agree to be bound by these Terms and Conditions, Merchant may not access or otherwise use or receive the Software, Hardware, and/or Services. By submitting an order form to Heartland, by downloading and using the licensed products Merchant expressly, and/or by pressing : (a) accepts these Terms and Conditions and agrees that it is legally bound by them; and (b) represent and warrant that you have the right, power and authority to agree to these Terms and Conditions on behalf of yourself and Merchant. Without limiting the foregoing, Merchant hereby acknowledges and agrees that it has read these Terms and Conditions and that it is bound to them.
Term and Termination. Heartland will provide the Software, Hardware, and/or Services selected by Merchant or an initial term beginning on the earlier of (i) the execution of the applicable Heartland order form, (ii) the date that Merchant receives delivery of Hardware from Heartland, and (iii) the date that Heartland delivers the applicable log-in credentials to Merchant, and shall continue for on a month to month basis (the “Term”) and shall be cancellable upon receipt of thirty (30) days’ prior written notice by either party hereto. Heartland’s provision of log-in credentials, delivery of Hardware, and or provision of services hereunder shall serve as Heartland’s explicit acceptance of the terms hereof. To the extent that Merchant subscribes to any software solutions including ancillary products and services provided by Heartland (“Ancillary Products”), as identified in the Heartland order form or any amendments thereto, such Ancillary Products shall be provided to Merchant on a month-to-month basis and shall be cancellable upon receipt of thirty (30) days’ prior written notice by either party hereto. For the avoidance of doubt, Merchant’s subscription to, and subsequent cancellation of, any Ancillary Products, shall not affect the Term with respect to the Software, Hardware, and/or Services.
Payment. Heartland will collect payment via Merchant’s established payment method for the monthly fee set forth on the Heartland order form (the “Fee”) each month for the Fees incurred by Merchant during the immediately-preceding month. A decline fee in the amount of twenty-five dollars ($25.00) may be assessed for any declined transaction. A late fee in the amount of forty-five dollars ($45.00) will be charged for any month the Fee is not received by Heartland within ten days (10) after the date due for that month. If the established method of payment fails for any reason to pay the fees in full, Heartland will use any other available account or charge card information on file to settle the payment, including by offsetting settlement funds due to Merchant under its Merchant Processing Agreement with Heartland. Any delinquent payments will be collected immediately. Merchant agrees that Heartland is not obligated to provide Services if Merchant’s account is delinquent. Heartland may terminate the Agreement immediately and deactivate access to the Software and/or Hardware, as applicable, if Merchant’s account is more than sixty (60) days delinquent.
Use of Software, Hardware, and/or Services. Merchant will use all applicable Software, Hardware, and Services only as intended and in the ordinary course of business operation at the location set forth on the Heartland order form. Merchant will maintain broadband internet service, at Merchant’s expense, throughout the Term of the Agreement. The Agreement does not provide or include the cost of broadband Internet service, which is the sole responsibility of Merchant. The Fees do not cover, and Heartland is not responsible for, replacement or repair of materials such as printer paper, ink, batteries or other consumables, any hardware or software not provided by Heartland with and as part of the Software, Hardware, or Services, or cosmetic damage of the Hardware.
Software. Merchant’s use of the Software is subject to that certain End User License Agreement (“EULA”) attached hereto. By utilizing the Software, Merchant expressly acknowledges that it has read the EULA and agrees to the terms thereof. If Merchant does not agree to the terms of the EULA, Customer should not use the Software. Heartland will provide Software maintenance, including new versions, updates and bug fixes to the Software as Heartland in its sole discretion deems reasonably necessary. Such new versions, updates and bug fixes shall be provided by Heartland at no additional charge on an when and if available basis. The Software is, and will at all times be and remain, the sole and exclusive property of Heartland. Merchant will have no right, title or interest in the Software except for use in the operation and ordinary course of business as set forth in the Agreement and the EULA during the Term.
Purchasing Hardware from Heartland: Merchant may choose to buy Hardware from or through Heartland as further specified on the applicable order form. Unless otherwise specifically stated in the documentation provided with the Hardware, Heartland provides a one year warranty beginning on the date of shipment on all Heartland supplied serialized Hardware that such Hardware shall be free from faulty workmanship and defects in materials (“Heartland Hardware Warranty”). Hardware covered by the Heartland Hardware Warranty will be replaced at no cost to the Merchant during the applicable warranty period. However, Hardware sold to Merchant by or through Heartland and sent back to Heartland, but not covered under the Heartland Hardware Warranty (including, but not limited to, Heartland supplied and sold Hardware damaged by fire, lightning, water damage) will be replaced and billed to Merchant as a new purchase at then current rates. After the warranty period, Heartland will replace such Hardware and repair damaged Hardware at Merchant’s sole cost and expense. If Hardware is damaged by the negligence or the willful acts or omissions of Merchant, its employees, agents or customers during the applicable warranty period, Merchant will be charged for Hardware repairs or replacements. If Hardware purchased from Heartland is returned within sixty (60) days of purchase in Original Condition, Heartland will refund the difference less a restocking fee of $30 for new or used repair/replacement Hardware. “Original Condition” means Hardware that has not been used to process transactions, other than to test the Hardware prior to deployment for general use. Heartland will not accept returned Hardware after sixty (60) days of purchase or Hardware not in Original Condition.
Renting Hardware from Heartland: Merchant may choose to rent Hardware from Heartland. Merchant is liable for all rental payments due hereunder. Rental privileges shall last as long as Merchant continues to remit timely rental payments and complies with its agreements with Heartland. Rented Hardware is the personal property of Heartland and will not be deemed for any purpose to be fixtures. Heartland shall have the right to affix or attach to all rented Hardware a tag or label indicating its ownership of, or interest in, said Hardware. Merchant will not remove, or permit the removal of, any such tag or label. Merchant will not sell, lease, encumber, or otherwise dispose of any interest in any rented Hardware and will keep it free of all liens, claims or encumbrances whatsoever. Rental Hardware will be replaced at no expense to Merchant if the Hardware becomes inoperable through no fault of Merchant, its employees, agents or customers. However, if the repair of rental Hardware is due to damage caused by the negligence or the willful acts or omissions of Merchants, its employees, agents or customers, Merchant will be charged for the repairs. Merchant will not be liable for ordinary wear and tear of Hardware. However, Merchant will be liable for the full cost of the Hardware in the event the Hardware is lost, destroyed or made inoperative. Merchant will indemnify Heartland against any loss or destruction of any Hardware for any cause whatsoever, excepting the negligence of Heartland. Merchant shall pay the monthly rental price indicated on the order form. All Heartland owned Hardware must be returned to Heartland at the expense of the Merchant and rental billing will continue until Hardware is received by Heartland. If rented Hardware malfunctions and Heartland issues a replacement for said Hardware, Merchant shall, within ten (10) days of receipt of the replacement Hardware, ship the malfunctioning Hardware to Heartland at Merchant’s expense. If Merchant fails to so return the malfunctioning Hardware to Heartland, Merchant shall be liable for the full replacement value of said Hardware and for any legal cost incurred by Heartland in connection with recovery of the malfunctioning Hardware. Merchant’s designated account will be debited for all amounts due Heartland for unreturned Hardware.
Risk of Loss. HEARTLAND DOES NOT GUARANTEE THE ABSENCE OF, AND THE AGREEMENT DOES NOT ENSURE OR COVER, ANY ERRORS, DEFECTS, OR DAMAGE TO ANY HARDWARE, SOFTWARE, OR DATA GENERATED BY THE SOFTWARE AND/OR HARDWARE UNDER ANY CIRCUMSTANCE AND REGARDLESS OF WHETHER INSTALLED, REPLACED, OR REPAIRED BY HEARTLAND, DEALER, OR OTHERWISE. MERCHANT WILL REVIEW ALL INFORMATION AND ENSURE THAT MERCHANT’S WAGE, TRANSACTION, TAX RATE AND OTHER DATA IS ENTERED CORRECTLY AND ACCURATELY AND THAT THE DATA AND RESULTS GENERATED BY THE SOFTWARE AND/OR HARDWARE IS ACCURATE. WHEN PROVIDING REPAIR OR REPLACEMENT SERVICE, HEARTLAND WILL USE REASONABLE EFFORTS TO REINSTALL THE HARDWARE’S PRIOR SOFTWARE CONFIGURATION BUT WILL NOT PROVIDE ANY RECOVERY OR TRANSFER OF SOFTWARE OR DATA NOT ORIGINALLY INCLUDED WITH AND AS PART OF THE HARDWARE AND/OR SOFTWARE. MERCHANT AGREES THAT HEARTLAND MAY INSTALL NEWER VERSIONS, UPDATES, OR FIXES OF THE SOFTWARE THAN WERE INSTALLED ON MERCHANT’S HARDWARE PRIOR TO ANY REPAIR OR REPLACEMENT.
Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, HEARTLAND DISCLAIMS ALL WARRANTIES OF ANY KIND FOR THE SOFTWARE, HARDWARE, AND SERVICES PROVIDED UNDER THE AGREEMENT. ANY AND ALL SOFTWARE AND HARDWARE ARE PROVIDED AS-IS. HEARTLAND SPECIFICALLY DOES NOT REPRESENT OR WARRANT THAT IT WILL BE ABLE TO (i) REPAIR OR REPLACE ANY HARDWARE WITHOUT RISK TO OR LOSS OF PROGRAMS OR DATA, OR (ii) MAINTAIN THE CONFIDENTIALITY OF ANY MERCHANT DATA. HEARTLAND’S LIABILITY UNDER THE AGREEMENT UNDER ANY THEORY OF LAW WHATSOEVER IS LIMITED TO THE AMOUNTS PAID BY MERCHANT TO HEARTLAND IN THE SIX (6) MONTHS PRECEDING THE DATE GIVING RISE TO THE CLAIM. IN NO EVENT SHALL HEARTLAND HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF USE OF EQUIPMENT OR FACILITIES, INTERRUPTION OF BUSINESS OR THE DISCLOSURE OR FAILURE TO MAINTAIN THE CONFIDENTIALITY OF DATA OR ARISING IN ANY WAY FROM THIS PLAN UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT HEARTLAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Default. Any Merchant default, including any failure to pay the Fees when due or declaration of bankruptcy, will not relieve Merchant from its obligation to pay all Fees as they come due or any other obligation under the Agreement. If Merchant fails to pay any Fees or other amount due within fifteen (15) days after the same is due and payable or to perform any other obligation under this Agreement, Heartland may: (i) terminate the Agreement immediately; (ii) take possession of the Hardware (if any), and/or (iii) deactivate and shut down operation of the Software and/or Hardware remotely. Heartland may exercise these rights without demand or notice, wherever located, and without court order or other process of law. Merchant grants Heartland any license, permission or other grant or right necessary to enter and be upon the premises where the Hardware and/or Software is located in order to effect its possession under this section. Merchant waives any and all damages occasioned by such taking of possession. These remedies are cumulative, and may be exercised concurrently or separately.
Credit Disclosure and Additional Documents. Heartland’s performance under the Agreement is conditioned upon Merchant’s creditworthiness in Heartland’s sole discretion. Merchant also agrees to provide additional representations and authorizations, including those necessary to Heartland UCC financing statements, as needed to perfect Heartland’s proof of ownership of the Hardware.
Merchant Responsibilities. Merchant is solely responsible for knowing all laws, rules and regulations applicable to its use of the Software, Hardware, and Services and will at all times strictly comply with such laws, rules and regulations. Merchant shall defend, indemnify and hold harmless Heartland, its officers, directors, employees, agents and affiliates from and against all claims, actions or demands, losses or liabilities, including without limitation any attorney’s fees and costs, made by any third party in connection with Merchant’s breach of applicable law, rule, or regulation.
Amendments. Heartland may change the terms of or add new terms to these Terms and Conditions at any time and any such changes or new terms shall be effective when notice thereof is given by Heartland either through written communication or on its Merchant website located at: https://infocentral.heartlandpaymentsystems.com. Notwithstanding anything herein to the contrary, all fees, charges and/or discounts charged to Merchant hereunder may be changed immediately and without prior written notice to Merchant, provided that Heartland will notify Merchant of any such changes promptly, either through written communication or on the Merchant website listed above.
Notices. All notices and other communications required or permitted to be sent to Merchant under the Agreement may be made: (1) by written communication sent to Merchant at the address stated on the Heartland order form or as updated by Merchant thereafter; (2) by electronic communication sent to Merchant at the electronic mail address stated on the Heartland order form or as updated by Merchant thereafter; or (3) via an electronic posting or notification accessible to Merchant on the Heartland website located at: https://infocentral.heartlandpaymentsystems.com. All notices and other communication required or permitted to be sent to Heartland under this Agreement shall be deemed delivered when mailed first-class mail, postage prepaid, addressed to HPS at the address set forth below, or at such other address as Heartland may notify Merchant its legal notice address going forward: Heartland Payment Systems, LLC, Attn: Customer Care, One Heartland Way, Jeffersonville, IN 47130.
Miscellaneous. Heartland will not be liable for breach or default under the Agreement due to delays in performance resulting from any cause beyond its reasonable control including, but not limited to, natural or man-made disasters, significant weather events or transportation delays. Merchant may not assign or transfer the Agreement, either directly, indirectly or by operation of law, without Heartland’s prior written consent. The Agreement shall be governed by and construed according to the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof. Any suit, action or proceeding (collectively “action”) arising out of or relating to the Agreement shall be brought only in the Superior Court of the State of Georgia, County of Muscogee, or the United States District Court for the Middle District of Georgia. Merchant hereby agrees and consents to the personal and exclusive jurisdiction of said courts over it as to all such actions and Merchant further waives any claim that such action is brought in an improper or inconvenient forum. In any such action, the parties waive trial by jury. In any judicial proceeding arising out of or relating to the Agreement, the prevailing party shall recover, in addition to all damages awarded, all court costs, fees and expense of experts and reasonable attorneys’ fees. Any provisions found to be unenforceable will not affect the enforceability of any other provisions of the Agreement. The Agreement, End User License Agreement, the Heartland order form(s), and Merchant’s Merchant Processing Agreement with Heartland, including all incorporated terms, constitutes the entire agreement between the parties with regard to its subject matter. No modification of the Agreement will be binding unless in writing and signed by the parties.
END USER LICENSE AGREEMENT
HEARTLAND PAYMENT SYSTEMS, LLC AND ITS AFFILIATES (“HEARTLAND” OR “LICENSOR”) PROVIDES THE LICENSED SOFTWARE IDENTIFIED IN THE APPLICABLE HEARTLAND ORDER FORM (THE “LICENSED PRODUCTS”) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THE HEARTLAND PAYMENT SYSTEMS, LLC ANCILLARY PRODUCTS AND SERVICES TERMS AND CONDITIONS AND THIS END USER LICENSE AGREEMENT (THIS “EULA”) AND ON THE CONDITION THAT YOU UNCONDITIONALLY ACCEPT AND COMPLY WITH ALL PROVISIONS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THIS EULA YOU MAY NOT ACCESS OR OTHERWISE USE THE LICENSED PRODUCTS. THIS SULA GOVERNS USE OF ALL LICENSED PRODUCTS, INCLUDING PRODUCTS LICENSED TO YOU UNDER PREVIOUS VERSIONS OF THIS EULA. WITHOUT LIMITING THE FOREGOING, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND THAT YOU AND YOUR ORGANIZATION ARE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Capitalized terms used, but not otherwise defined herein have the meanings ascribed to them in the Heartland Payment Systems, LLC Ancillary Products and Services Terms and Conditions to which this EULA is attached, the terms and conditions of which are hereby incorporated by this reference.
This EULA is a legal agreement between you and Heartland for the application(s) that you have accessed and downloaded or that have been provided to you by Licensor and that serve your device and your device’s operating system, including all software therein in object code form and any enhancements, modifications, updates, upgrades, releases or other customizations of the software provided to you by Licensor, (collectively, the “Licensed Products”) and associated media and printed materials, and may include on-line or electronic documentation (the “Licensed Materials”). This EULA is entered into in connection with your Merchant Processing Agreement with Heartland and the Heartland Ancillary Products and Services Terms of Service (collectively, the “Merchant Agreements”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed in the Merchant Agreements.
Subject to your compliance with the terms and conditions of this EULA and your and your organization’s compliance with the Merchant Agreements, Licensor hereby grants to you a non-exclusive, non-transferable, non-sub-licensable limited license to access and use the Licensed Products at the location(s) or on the devices specified in the Merchant Agreements (collectively, the “Licensed Sites”) during the term of the Merchant Agreements for the purposes set forth therein. No ownership is transferred, implied or granted to you, and Licensor retains full and complete title to the Licensed Products, and all intellectual property rights therein. Except as specified in this EULA and the Merchant Agreements, you are not licensed to use the Licensed Products for any other purpose whatsoever. The license granted by this EULA may not be given, sold, leased, rented, or otherwise transferred to any other person, entity, or location. The Licensed Products can only be used by the original licensee at the Licensed Sites. After you download the Licensed Products from the app store or are provided with a copy of the Licensed Products by Licensor, Licensor will issue you access credentials (e.g., a user name and password) that will enable you to log into and use the Licensed Products (“Access Credentials”). Your Access Credentials will enable Licensor to authenticate you as an authorized user of the Licensed Products and to provide appropriate authorizations regarding the scope of your use of the Licensed Products. Any information you provide us in connection with access to or use of the Licensed Products must be accurate, current and complete. You are solely responsible for maintaining the confidentiality and security of your Access Credentials, and for restricting access to the Licensed Sites so that others may not access protected portions of the Licensed Products. You may not share your Access Credentials with any third party, including other employees of your organization, but you may provide unique Access Credentials to a third party. Notwithstanding anything to the contrary, you are responsible for any use of or access to the Licensed Products and any activities conducted therein via your Access Credentials and any Access Credentials issued to third parties on your behalf. If you become aware of any unauthorized use of or compromise of your Access Credentials, you must notify Licensor immediately. Licensor may revoke your Access Credentials at Licensor’s discretion including, without limitation, if the applicable Merchant Agreements terminate, if your organization notifies Licensor that you no longer are authorized by the organization to access the Licensed Products or if you engage in conduct that is in breach of this EULA or that threatens to cause harm or disruption to Licensor, your organization or other users of the Licensed Products. Once your Access Credentials are revoked or disabled, you no longer will have access to the Licensed Products.
You acknowledge that the Licensed Products are subscription-based products, and that Licensor may make changes to the Licensed Products from time to time. From time to time, Licensor may make available to you via the applicable app store or otherwise, updates, bug fixes, upgrades, patches and/or new versions of the Licensed Products (collectively, “Updates”). You agree to promptly install such Updates when they become available to you. You understand and agree that Updates may include necessary functionality and/or fixes to protect the security of the Licensed Products and that your failure to promptly install such Updates may compromise your ability to use the Licensed Products and/or result in the disabling of your Access Credentials. Licensor shall have no liability to you for any loss or damage resulting from your failure to timely accept such Updates.
You may procure a copy of one or more of the Licensed Products from Licensor directly, or from a licensed dealer of the Licensed Products (a “Dealer”). If applicable, the Dealer, on your behalf, shall register each copy of the Licensed Products with Licensor. The registration will be accomplished on forms prescribed by Licensor. Neither the Licensor nor the Dealer will support an unregistered copy of Licensor’s product, and this EULA does not provide you with any rights concerning any software that you did not acquire lawfully or that is not a legitimate, authorized copy of the Licensed Products. If applicable, it is the Dealer’s responsibility to inform you of any software updates. You must remain current on all Updates to the Licensed Products, as set forth in greater detail above.
Restrictions on Use
You shall use the Licensed Products strictly in accordance with the terms of this EULA and the Merchant Agreements and in compliance with all applicable laws, rules, and regulations, including without limitation the CAN-SPAM Act. You shall not: (a) make copies of the Licensed Products; (b) disassemble, decompile, decode, reverse engineer, reprint, transcribe, extract, adapt, translate, create derivative works of, enhance or modify the Licensed Products or Licensed Materials, or any portion thereof, without the express written consent of Licensor; (c) sell, resell, distribute, assign, transfer or sublicense the Licensed Products or Licensed Materials; (d) make the Licensed Products available to or use the Licensed Products for the benefit of anyone other than your organization and the Licensor; (e) violate any applicable laws, rules, or regulations in connection with your use of the Licensed Products; (f) remove, obscure, or modify any proprietary notice (including any notice of copyright or trademark) of Licensor or its affiliates; (g) use the Licensed Products to store or transmit infringing, libelous, harassing, disparaging or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (h) use the Licensed Products to store or transmit viruses, malware, ransomware or other malicious code; (i) attempt to gain access to components of or areas within the Licensed Products that your Access Credentials do not permit you to access; or (j) use the Licensed Products to send unsolicited email or other unsolicited messages to any third party. Any act inconsistent with full and complete protection of Licensor’s copyright and common law rights in the Licensed Products is expressly and strictly prohibited by this EULA.
Without in any way limiting the foregoing, you represent and warrant that if you import any email addresses or lists of email addresses (collectively, “Lists”) into any of the Licensed Products, you have complied with all applicable laws in connection with obtaining and providing such Lists, and that your use of such Lists in connection with the Licensed Products will not violate applicable law, including without limitation the CAN-SPAM Act of 2003 and regulations thereunder and all other applicable U.S., state, and local laws, or any third-party right. Without in any way limiting the foregoing, you represent and warrant that each List consists only of email addresses that (i) can be categorized as “opt-in” recipients by such recipients’ agreements with you to receive your materials via email, and (ii) have not notified you of the applicable recipient’s desire to not receive materials from you via email. You further represent and warrant that you will not at any time import into the Licensed Products any List that you have purchased, rented, harvested or leased from a third-party, or any List that contains email addresses that were otherwise collected outside of your purview. If at any time any recipient on a List notifies you of such recipient’s desire to not receive materials from you via email, you agree to not utilize the Licensed Products to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to such recipient. If at any times you export any List from the Licensed Products, you assume complete responsibility for the subsequent use and exploitation of such List and hereby release Licensor from any liability in connection with the use and exploitation of such List.
You acknowledge that any violation of the restrictions on use listed above will cause irreparable harm to Licensor. Licensor shall be entitled to enforce both its legal and equitable remedies to prevent such harm. Without limiting the foregoing, you are solely responsible for the legality and appropriateness of any and all content you provide to or through the Licensed Products.
Rights in Proprietary Materials
The Licensed Products and Licensed Materials are protected by copyright and contain proprietary information protected by copyright laws, intellectual property laws, international treaty provisions and other applicable laws. You shall not remove, alter or obscure any proprietary or other legend or restrictive notice contained in or affixed to the Licensed Products or Licensed Materials. Any backup copy of the Licensed Products and Licensed Materials shall include all copyright and other intellectual property protection notices. The copyright and all other right, title and interest in and to the Licensed Products and Licensed Materials (including but not limited to, any images, photographs, animation, video, audio, music and text incorporated into the Licensed Products) shall at all times remain with Licensor. The Licensed Products and Licensed Materials and any copies thereof remain the property of Licensor and as such are licensed, not sold to you during the term of this EULA. You acknowledge that Licensor holds all right, title, and interest in and to all tangible and intangible intellectual property contained in the Licensed Products and Licensed Materials, including all trade secrets, copyrights, and other intellectual property rights pertaining thereto. You have only the limited revocable right to use the Licensed Products and Licensed Materials, during the term of this EULA, as expressly stated in this EULA. All rights not expressly granted herein are reserved to Licensor.
You agree fully cooperate with the Licensor in any copyright enforcement or related action brought by Licensor and shall promptly notify Licensor of the presence of any unauthorized product. Dealer, if any, has no right or authority to assume or create any obligation in the name of or on behalf of Licensor.
“Licensee Data” means any data, content or other materials of any type that you upload, submit or otherwise transmit to or through the Licensed Products, including but not limited to data concerning or relating to your customers or your employees, but “Licensee Data” does not include any data, content or other materials of any type that is provided to Heartland from consumers in connection with consumers’ Heartland accounts and that Heartland uses across its merchant clients (“Heartland Data”). Heartland Data is the property of Heartland, and Heartland may collect, use, sell, transfer and/or disclose Heartland Data for any purpose.
At your sole discretion, you may permit a third party solution provider (“Integrator”) to access, interface with or otherwise engage with the Licensed Products or the Licensee Data. At your option, you may instruct Heartland to share Licensee Data with an Integrator, and/or you may instruct an Integrator to share Licensee Data with Heartland. For the avoidance of doubt, Integrator is your service provider and not a service provider of Heartland, and notwithstanding anything in this EULA to the contrary, Heartland is not responsible for any acts or omissions of any Integrator. You acknowledge and agree that Heartland may, at any time terminate the access of any Integrator to the Licensed Products or the Licensee Data, without notice to you. For avoidance of doubt, and notwithstanding anything to the contrary, Heartland shall have no liability, whether to you, any Integrator, or any other third party, arising out of, relating to, or as a result of Heartland’s acts or omissions related to such termination.
You represent and warrant that (i) you have obtained all necessary rights, releases and permissions to provide all Licensee Data to Licensor and to grant the rights granted to Licensor in this EULA, (ii) if Integrator provides data to Licensor on your behalf, you have obtained all necessary rights, releases and permissions required for Integrator to provide such data to Licensor for processing, (iii) you have an internal policy in place that provides notice to your employees that you disclose their identifying data (as defined herein) to third-party vendors like Licensor and Licensor may use their identifying data in connection with the provision of products and services under the EULA, (iv) the Licensee Data and the transfer to, collection of, storage of, use by, and rights granted to Licensor of Licensee Data as authorized by you under this EULA do not violate any laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies or other applicable Laws, and (v) you are responsible for all privacy notices and consents that may be required by law in connection with Licensor’s collection and processing of Licensee Data on your behalf, including without limitation, those that may be required on online properties that are hosted by Licensor on your behalf. Licensor assumes no responsibility or liability for Licensee Data, and you shall be solely responsible for Licensee Data and the consequences of using, disclosing, storing, or transmitting it. Licensee shall defend, indemnify, and hold harmless the Indemnified Parties (as defined herein) from and against any claims, actions or demands, losses, liabilities, including, without limitation all reasonable attorney’s fees and costs, made by any third party arising from or relating to Licensee Data, including but not limited to any claim brought by a third party alleging that Licensee Data, or your use of the Licensed Products in breach of this EULA, infringes or misappropriates the intellectual property rights of a third party or violates applicable law.
Without limiting your other obligations under this EULA, to the extent you permit or authorize any third-party, including without limitation any Integrator, to access, interface with, or otherwise engage with the Licensed Products in any respect (“Third Party Access”), you assume complete responsibility for any liability arising out or in connection with such Third Party Access. This includes but is not limited to any claims arising out of or in connection with breaches of data security measures or violations of applicable laws, rules or regulations arising from such Third Party Access that affect Licensee Data. Licensee shall defend, indemnify, and hold harmless the Indemnified Parties from and against any claims, actions or demands, losses, liabilities, including, without limitation all reasonable attorney’s fees and costs, made by any third party arising from or relating to such Third Party Access.
Data Collection & Use
You unconditionally accept and acknowledge that Licensor may collect, use, sell, transfer and disclose non-identifying customer data, and information about your and your customers’ use of the Licensed Products, Licensed Materials, and/or third party services, including Integrator services, when such services are installed and used by you in conjunction with the Licensed Products. As used herein, “non-identifying data” means data that does not identify an individual. As used in this paragraph, “transfer” includes transmission by Licensor or the SAAS solution to a third party, another software agent or hardware device. Licensor may aggregate and anonymize your customer data or traffic and usage data with similar data of other third parties (collectively, “Aggregated Data”) and use or disclose such Aggregated Data for a variety of purposes, including but not limited to monitoring and improving the performance, features and functionality of the Services for purposes of conducting industry trend analysis, describing Licensor’s services to prospective partners and other third parties, or for any other lawful purposes determined by Licensor. For the avoidance of doubt, Licensor owns all right, title, and interest in and to the Aggregated Data. Licensor may also disclose Licensee Data if required to do so by law, legal process, litigation and/or requests from governmental authorities.
Additionally, Licensor may collect, use, transfer and disclose identifying data and information about your employees who access, interface with or otherwise engage with the Licensed Products. As used in this EULA, “identifying data” means data that does identify an individual, and includes, but is not limited to your employees’ first and last names, schedules and transaction and other financial data. Additionally, Licensor may aggregate and anonymize such identifying data, in which event such data shall be considered “Aggregated Data” and may be used and disclosed by Licensor as set forth herein.
In addition, Licensor reserves the right to disclose, share and/or otherwise transfer Aggregated Data in connection with a corporate merger, acquisition, consolidation, the sale of a portion of Licensor’s business or the sale of substantially all of Licensor’s assets, or other fundamental corporate change, whatever form it may take.
For purposes of the California Consumer Privacy Act (“CCPA”), Licensor will not retain, use, or disclose the “personal information” (as defined in the CCPA) contained in Licensee Data for any purpose other than for performing the services specified in this EULA or as otherwise permitted by the CCPA. Licensor shall not “sell” (as defined in the CCPA) the personal information contained in Licensee Data. Licensor certifies that it understands the requirements of the CCPA with regard to the personal information contained in the Licensee Data and will comply with them.
Licensor implements security procedures to help protect Licensee Data from security attacks. However, you understand that use of the Licensed Products necessarily involves transmission of Licensee Data over networks or in connection with Integrators that are not owned, operated or controlled by us, and Licensor is not responsible for any of the Licensee Data lost, altered, intercepted or stored across such networks or Integrators. Licensor cannot guarantee that its security procedures will be error-free, that transmissions of Licensee Data will always be secure or that unauthorized third parties will never be able to defeat Licensor’s security measures or those of Licensor’s third party service providers.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential in writing. Notwithstanding the foregoing, Confidential Information of Licensor includes the Licensed Product, the Licensed Materials and the terms and conditions of this EULA. Confidential Information does not include any information that the Receiving Party can demonstrate (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this EULA, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this EULA and who have signed confidentiality agreements with or are otherwise subject to enforceable obligations to the Receiving Party that contain protections no less stringent than those herein. Neither party will disclose the terms of this EULA or the Merchant Agreements to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. Each party understands and agrees that, notwithstanding any other provision of this EULA, breach of this Confidentiality provision may cause the other party irreparable damage for which recovery of money damages would be inadequate, and that each party shall therefore be entitled to seek, from a court of competent jurisdiction, timely injunctive relief to protect such party’s rights under this EULA in addition to any and all remedies available at law.
Disclaimer of Warranties/Limitation on Damages
LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW REGARDING THE LICENSED PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING IN LAW FROM A COURSE OF DEALING OR USAGE OR TRADE, AND INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE LICENSED PRODUCTS AND ANY RELATED DOCUMENTATION ARE PROVIDED ON AN “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, AND YOUR USE OF THE LICENSED PRODUCTS THEREBY IS AT YOUR SOLE RISK AND DISCRETION. FURTHER, LICENSOR MAKES NO WARRANTY THAT (I) THE LICENSED PRODUCTS WILL MEET YOUR REQUIREMENTS; (II) THE LICENSED PRODUCTS WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, OR ERROR-FREE THAT DEFECTS WILL BE CORRECTED OR THE LICENSED PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (III) THE QUALITY OF THE LICENSED PRODUCTS OR ANY SERVICES, INFORMATION, OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE LICENSED PRODUCTS WILL MEET YOUR EXPECTATIONS; OR (IV) THE LICENSED PRODUCTS DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY. LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE LICENSED PRODUCTS, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
IN NO EVENT SHALL LICENSOR OR ANY OF ITS AFFILIATES, SUBSIDIARIES, LICENSORS OR ASSIGNS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS OR DIRECTORS BE LIABLE TO YOU OR ANY THIRD PERSON FOR (A) ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE LICENSED PRODUCTS, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LICENSOR WAS AWARE OF OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE LICENSED PRODUCTS; OR (B) ANY MONETARY DAMAGES IN EXCESS OF $100.
The Licensed Products may be subject to US export control laws, including but not limited to the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Licensed Products to, or make the Licensed Products accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Licensed Products available outside the US.
This EULA is in effect for as long as you have a valid license to the Licensed Products under the terms and conditions of the Merchant Agreements, unless sooner terminated as permitted in this EULA. Your rights under this EULA will terminate immediately without notice to you if you fail to comply with any term or condition of this EULA, if you are no longer employed by or contracted to work on behalf of your organization or for any other valid reason, as determined by Licensor. Licensor will determine your compliance with this EULA in its sole discretion and its decision shall be final and binding and not subject to challenge or appeal. You understand and agree that Licensor shall have no liability to you or any other person for any termination of this EULA. Further, unless earlier terminated as provided herein, this EULA will terminate at such time as the Merchant Agreements terminate.
Indemnification of Licensor
You agree to indemnify, hold harmless and defend Licensor and its licensors, parent, subsidiaries and affiliates, and all officers, directors, and employees thereof, and anyone acting on Licensor’s behalf (collectively, the “Indemnified Parties”) from and against any and all claims, alleged claims, demands, causes of action, judgments, damages, losses, liabilities, and all costs and expenses of any kind arising from or connected with (i) your use of the Licensed Products; (ii) any third party, including without limitation, any Integrator, that you authorize to access, interface with or otherwise engage with the Licensed Products or the Licensee Data; (iii) any breach or alleged breach of your representations, warranties, obligations or agreements hereunder; and (iv) any violation of any laws or regulations or the rights of any third party by you or by any person or entity that you allow to use the Licensed Products.
If any provision of this EULA is found to be invalid or unenforceable, such provision shall be severed from this EULA while not affecting the validity or enforceability of the remaining provisions, which shall remain in full force and effect.
No failure to exercise and no delay in exercising, on the part of either party, any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege hereunder preclude further exercise of the same right or the exercise of any other right hereunder.
This EULA shall be governed by and construed according to the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof. Any suit, action or proceeding (collectively “action”) arising out of or relating to this EULA shall be resolved on an individual basis without resort to any form of class action and not consolidated with the claims of any other parties, and shall be brought only in the Superior Court of the State of Georgia, County of Fulton, or the United States District Court for the Northern District of Georgia. You hereby agree and consent to the personal and exclusive jurisdiction of said courts over it as to all such actions and you further waive any claim that such action is brought in an improper or inconvenient forum. In any such action, the parties waive trial by jury. In any judicial proceeding arising out of or relating to this EULA, the prevailing party shall be entitled to recover, in addition to all damages awarded, all court costs, fees and expense of experts and reasonable attorneys’ fees. Any provisions found to be unenforceable will not affect the enforceability of any other provisions of this EULA.
Neither party shall be deemed in default or otherwise liable under this EULA because of its inability to perform its obligations (other than a party’s payment obligations) by reason of fire, earthquake, flood, substantial snowstorm, epidemic, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, unavailability of materials, carriers or communications facilities, act of God, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order, or any cause beyond its control.
Changes. Licensor may modify this EULA, in whole or in part, at any time. In the event such changes are deemed material, Licensor will post such changes on its website and may make the revised EULA available to you via download through the applicable app store. You agree to check Licensor’s web site periodically to review any changes to this EULA. By continuing to use the Licensed Products and/or clicking your assent to the modified EULA, you will be deemed to have read, understood, and unconditionally agreed to comply with the terms and conditions of the EULA, as modified.
Any notice under this EULA must be given in writing. Notices to Licensor shall be sent via overnight courier or registered mail to Heartland Payment Systems, LLC, One Heartland Way, Jeffersonville, IN 47130, ATTN: Legal Department, and shall be effective upon actual receipt. Notices to Licensee shall be given in accordance with the notice requirements set forth in the Merchant Agreements. Licensee may not assign this EULA without Licensor’s prior written consent. This EULA and the Merchant Agreements constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior or contemporaneous written or oral agreements between the parties with respect to the Licensed Products or any other subject matter covered by this EULA. This EULA is intended for the sole and exclusive benefit of the parties hereto, is not intended to benefit any third party, and only the parties may enforce this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This EULA may not be modified or amended by you without Licensor’s written agreement. Any failure to enforce any provision of this EULA shall not constitute a waiver thereof or of any other provision thereof. The parties are independent contractors. This EULA shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.
Terms Required by Apple, Inc.
If your device is an iPad, iPhone, or iPod Touch, the following additional terms apply:
Apple, the Apple logo, iPad and iPhone are trademarks of Apple, Inc. (“Apple”), registered in the U.S. and other countries. iTunes and the Apple App Store are service marks of Apple.
This EULA is between you and Licensor only, and not with Apple. Licensor, and not Apple, is solely responsible for the Licensed Products.
Apple has no obligation at all to provide any support or maintenance services in relation to the Licensed Products. If you have any maintenance or support questions in relation to the Application, please contact Licensor, not Apple, using the contact details at the end of this section.
Except as otherwise expressly set out in these terms, any claims relating to the possession or use of the Licensed Product are between you and Licensor (and not between you, or anyone else, and Apple).
iTunes and the Apple App Store are owned and operated by Apple. Your use of the Apple App Store is governed by a legal agreement between you and Apple. You acknowledge that you had the opportunity to review Apple’s App Store Terms of Service and agreed to be bound by them when you accessed and downloaded the app via the Apple App Store.
To the maximum extent permitted by applicable law, Apple shall have no warranty obligation or liability whatsoever with respect to the Application, including without limitation in relation to the sale, distribution or use of the Application, or the performance or non-performance of the Application. In the event that the Licensed Products fail to comply with any warranty set forth in this EULA, you may notify Apple, and Apple will refund the purchase price for the Licensed Products to you.
Apple shall not be responsible for addressing any claims by you or any third party relating to the Licensed products or the possession and/or use of the Licensed Products, including but not limited to (i) product liability claims, (ii) any claim that the Licensed Products fail to conform to any applicable legal or regulatory requirement, or (iii) claims arising under consumer protection or similar legislation.
Apple shall not be responsible for the investigation, defense, settlement or discharge of any claim that the Licensed Products or your possession and use of the Licensed Products infringes a third party’s intellectual property rights.
You represent and warrant that (i) the Licensed Products will not be downloaded or used in, or transported to, a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a ‘terrorist-supporting’ country, and (ii) neither you or any use designated by you are listed on any U.S. Government list of prohibited or restricted parties.
Support requests, as well as questions, complaints or claims regarding the Licensed Products, may be directed to Licensor at: Heartland Payment Systems, LLC, One Heartland Way, Jeffersonville, IN 47130; Phone: 1-888-963-3600; and Email: [email protected].
Notwithstanding anything to the contrary in any other agreement between the parties, Apple and its subsidiaries are third-party beneficiaries of this EULA, and have the right (and shall be deemed to have accepted the right) to enforce this EULA against you.
If your device is an Android-powered device, the following additional terms apply:
Android™ is a trademark of Google Inc. (“Google”). Use of this trademark is subject to Google Permissions.
This EULA is between you and Licensor only, and not with Google. Licensor, and not Google, is solely responsible for the Licensed Products.
Google has no obligation at all to provide any support or maintenance services in relation to the Licensed Products. If you have any maintenance or support questions in relation to the Application, please contact Licensor, not Google, using the contact details at the end of this section.
Except as otherwise expressly set out in these terms, any claims relating to the possession or use of the Licensed Product are between you and Licensor (and not between you, or anyone else, and Google).
The Google Play Store is owned and operated by Google Inc. Your use of the Google Play Store is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/TOS) and the Google Play Store Terms of Service (found at http://www.google.com/mobile/android/market-tos.html) and together with the Google Terms of Service called the “Terms”). In addition, your use of the Google Play Store is subject to the Google Play Store Business and Program Policies (found at http://www.google.com/intl/en_us/mobile/android/market-policies.html). The Google Play Store Terms of Service, Google Play Store Business and Program Policies, and Google Terms of Service shall take precedence in that order in the event of a conflict between them, to the extent of such conflict. You acknowledge that you had the opportunity to review the Terms and agreed to be bound by them when you accessed and downloaded the app via the Google Play Store.
To the maximum extent permitted by applicable law, Google shall have no warranty obligation or liability whatsoever with respect to the Licensed Products, including without limitation in relation to the sale, distribution or use of the Licensed Products, or the performance or non-performance of the Licensed Products. In the event that the Licensed Products fail to comply with any warranty set forth in this EULA, you may notify Google, and Google will refund the purchase price for the Licensed Products to you.
Google shall not be responsible for addressing any claim by you or any third party relating to the Licensed Products or the possession and/or use of the Licensed Products, including but not limited to (i) product liability claims, (ii) any claim that the Licensed Products fail to conform to any applicable legal or regulatory requirement, or (iii) claims arising under consumer protection or similar legislation.
Google shall not be responsible for the investigation, defense, settlement or discharge of any claim that the Licensed Products or your possession and use of the Licensed Products infringes a third party’s intellectual property rights.
You represent and warrant that (i) the Licensed Products will not be downloaded or used in, or transported to, a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a ‘terrorist-supporting’ country, and (ii) neither you or any user designated by you is listed on any U.S. Government list of prohibited or restricted parties.
Support requests, as well as questions, complaints or claims regarding the Licensed Products, may be directed to Licensor at: Heartland Payment Systems, LLC, One Heartland Way, Jeffersonville, IN 47130; Phone: 1-888-963-3600; and Email: [email protected].
Notwithstanding anything to the contrary in any other agreement between the parties, Google and its subsidiaries are third-party beneficiaries of this EULA and have the right (and shall be deemed to have accepted the right) to enforce this EULA against you.