End-User License Agreement
PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY, AS ITS PROVISIONS AFFECT YOUR RIGHTS AND LIABILITIES UNDER THE LAW AND SET OUT THE TERMS UNDER WHICH PROCESSING SOLUTIONS INC ("PSI") MAKES THE SOFTWARE APPLICATION THAT ACCOMPANIES THIS AGREEMENT ("LICENSED SOFTWARE") AVAILABLE TO YOU. THIS AGREEMENT, TOGETHER WITH ALL UPDATES, ADDITIONAL TERMS, SOFTWARE LICENSES, THE MERCHANT PROCESSING APPLICATION AND AGREEMENT, AND THE PROGRAM GUIDE, COLLECTIVELY CONSTITUTE THE "AGREEMENT" BETWEEN YOU AND PSI.
By clicking the "I agree" button, downloading, installing, or otherwise using the LICENSED software, you are expressly agreeing to the terms and conditions of this Agreement. If you do not agree to all of the terms and conditions of this Agreement, do not download, install, or use the Licensed Software.
1. License.
Upon acceptance of the terms and conditions of this Agreement, PSI grants to you, and you accept, a non-exclusive, nontransferable, limited license to install and use the Licensed Software for your internal use in processing card payments. Such use of the Licensed Software is in machine-readable form only and is subject to the terms and conditions herein. PSI expressly reserves any and all other rights with respect to the Licensed Software.
2. License Restrictions.
As an express condition of the license granted herein, you shall not do the following: (i) reverse assemble, reverse compile, workaround technical limitations, or otherwise translate the Licensed Software, in whole or in part; (ii) create derivative works of the Licensed Software or any portion thereof; (iii) transfer, lease, assign or sublicense the license rights granted hereunder to any other person or entity; (iv) perform service bureau work, multiple-user licensing or time-sharing arrangements; (v) copy, distribute, display or otherwise publish the Licensed Software or any portion thereof or place the Licensed Software or any portion thereof over the internet for use by others. Use of the Licensed Software on a mobile device or media device not owned, operated and controlled by you constitutes copyright infringement and exceeds the scope of this license. Furthermore, you shall not use the Licensed Software in any manner that violates (i) any intellectual property rights of any person or entity or (ii) any applicable law or regulation. In the event you violate the scope of the license rights granted herein, in addition to any other remedy that may be available to PSI, your license shall terminate, and you shall uninstall the Licensed Software from your device(s).
3. Title.
Title to and ownership of the Licensed Software and all related intellectual property including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary information, and all improvements, updates and modifications thereto, shall remain with PSI, and you shall have no proprietary rights with respect thereto other than the limited license granted herein, whether by estoppel, implication or otherwise. You agree not to remove or alter any proprietary markings on the Licensed Software.
4. Updates.
PSI reserves the right to make modifications, updates and/or improvements to the Licensed Software at any time and without prior notice. In the event that PSI modifies, updates, or improves the Licensed Software, such modifications, updates and/or improvements will be part of the Licensed Software and subject to the terms and conditions of this Agreement. You agree that PSI may use the information you submit to PSI or through the Licensed Software, including without limitation, technical information about your device, to provide its services to you and improve or support the Licensed Software.
5. Connectivity.
You understand that connectivity to and use of the functionalities of the Licensed Software will require a data network connection. You are solely responsible for acquiring the devices, communication lines and connection to a data network required for operating the Licensed Software and any costs associated therewith, including without limitation, data plans, carrier fees or usage costs.
6. Disclaimer of Warranty and Limitation of Liability.
6.1 THE LICENSED SOFTWARE IS PROVIDED TO YOU "AS-IS". PSI EXPRESSLY DISCLAIMS, AND YOU HEREBY EXPRESSLY WAIVE, ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. PSI DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE LICENSED SOFTWARE WILL CONFORM TO ANY DESCRIPTION, MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED, VIRUS-FREE, ERROR-FREE, FREE OF DEFECTS, THAT DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED, OR THAT THE SPEED OF THE SERVICES WILL BE SATISFACTORY TO YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PSI, ITS AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED SOFTWARE IS WITH YOU.
6.2 PSI is not responsible for the obsolescence of the Licensed Software that may result from changes in your requirements or for the use of superseded, outdated or uncorrected versions of the Licensed Software. Further, PSI shall have no liability for loss of data or documentation, it being understood that you are responsible for reasonable backup precautions.
6.3 You are responsible for compliance with Payment Card Industry Data Security Standards ("PCI DSS") in connection with your use of the Licensed Software, and PSI shall not be liable for any fines or other liability incurred by you as a result of non-compliance.
6.4 PSI shall have no liability with respect to its obligations under this agreement or otherwise for consequential, exemplary, special, indirect, incidental or punitive damages. In any event, the aggregate liability of PSI for any reason and upon any cause of action or claim, shall be limited to the amount paid to PSI by you hereunder for the specific portion of the Licensed Software giving rise to such cause of action or claim. These limitations apply to all causes of action or claims in the aggregate, including, without limitation, breach of contract, breach of warranty, indemnity, negligence, strict liability, misrepresentation, and other torts.
7. Termination.
Your license of the Licensed Software shall become effective upon your download, installation or use of the Licensed Software and continue until the earliest of (i) the end of the term specified, if any; (ii) immediately upon your failure to comply with any of the terms and conditions herein or (iii) immediately upon notice of termination, with or without cause, by PSI. You may terminate the license at any time by uninstalling the Licensed Software. Sections 2, 3, 4, 5, 6, 8 and 9 shall survive any termination or expiration of this Agreement or the license granted hereunder.
8. App Store Conditions.
The following conditions for use of the Licensed Software on Apple iPhone mobile devices and iPod media devices shall apply and are considered to be accepted by you when you accept the terms and conditions of this Agreement.
8.1 This Agreement is entered into strictly between you and PSI, not Apple. Apple shall not be responsible for the Licensed Software nor its contents. If this Agreement is more restrictive than or is in disagreement with the conditions of use established in the Apple App Store, then the latter shall have precedence over the former.
8.2 The license granted herein is limited to a nontransferable license, for use of the Licensed Software on an iPhone mobile device or iPod media device owned by you and, at all times, under the terms authorized by Apple in the conditions of use of its App Store.
8.3 PSI (not Apple) is the only party responsible for the provision of maintenance and support services, if any, relating to the Licensed Software.
8.4 PSI (not Apple) is the only party responsible for any warranties to which the Licensed Software may be subject, to the extent PSI has not disclaimed such warranties in this Agreement. In the event that the Licensed Software does not conform to any applicable warranty, you may notify Apple, and Apple will return the purchase price, if any, of the Licensed Software. To the extent permitted by applicable law, Apple does not have any warranty obligation related to the Licensed Software, and any complaint, loss, liability, damages, and costs relative to the nonconformance of any applicable warranties shall be the responsibility of PSI.
8.5 PSI (not Apple) is the only party responsible for the management of complaints made by users or third parties relating to the Licensed Software, and the possession or use of the Licensed Software, including complaints related to (i) product liability; (ii) non-compliance with applicable laws, including laws relating to consumer protection.
8.6 In the event that a third party claims infringement relating to the Licensed Software, PSI (not Apple) shall be the only party responsible for the investigation, defense, settlement, and discharge of such claims.
8.7 You warrant to PSI that: (i) your legal address is not within one of the countries subject to United States embargo or considered by the United States as a supporter of terrorism; (ii) you are not part of any list of entities prohibited by the United States.
8.8 The contact information of PSI which you can use for any question and/or complaint relating to the Licensed Software is: Processing Solutions Inc., 3980 W Florida St., Mandeville, LA 70448.
8.9 You agree to comply with any applicable third-party agreements in using the Licensed Software.
8.10 You recognize that Apple and its affiliates are considered to be third-party beneficiaries of this Agreement and that Apple may enforce the provisions of this Agreement against you as a third-party beneficiary.
8.11 Apple, iPhone and iPod are trademarks of Apple Inc., registered in the U.S. and other countries. The App Store is a trademark of Apple Inc.
9. General.
9.1 This Agreement shall be governed and construed in accordance with the federal laws of the United States and the laws of the State of Georgia. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods, as amended, shall not apply. Any action relating to this Agreement shall be heard in the federal and state courts of the State of Georgia, and you hereby expressly submit to the personal jurisdiction and venue of such courts.
9.2 PSI reserves the right to modify, in whole or in part, this Agreement, including without limitation, to add additional conditions, with prior notice to you through the mobile device or media device, delivered prior to the corresponding download. New or modified conditions shall be considered to be accepted upon download.
9.3 No waiver of this Agreement shall be binding unless it is in writing and signed by an authorized representative of PSI.
9.4 The failure of PSI to enforce any provision of this Agreement shall not be construed as a waiver or limitation of PSI's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
9.5 PSI will not be responsible for delays or failures in performance resulting from acts beyond its control, including but not limited to acts of God, strikes, riots, acts of war, epidemics, governmental regulations, fire, communication line failures, power failures, or earthquakes.
9.6 In the event that any of the terms of this Agreement is declared to be invalid or void by any court of competent jurisdiction, such term shall be null and void and deemed severed from this Agreement, and all remaining terms shall remain in full force and effect.
9.7 At all times during the term of this Agreement you and PSI shall be independent contractors.
9.8 The Licensed Software is provided with Restricted Rights. Use, duplication or disclosure by the Government is subject to restrictions set forth in applicable federal acquisition regulations.
9.9 The Licensed Software may be subject to U.S. export control laws or regulations. You agree to comply with all such laws and regulations, including obtaining any necessary licenses.
9.10 The Section headings in this Agreement are for identification purposes only and shall not affect the interpretation of this Agreement.
9.11 This Agreement is intended to supplement the Merchant Processing Application and Agreement, which incorporates the Program Guide, between you and PSI. In the event of a conflict, the Merchant Agreement and/or Program Guide shall control.
9.12 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.11, THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF PSI OBLIGATIONS AND RESPONSIBILITIES TO YOU AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF PSI RELATING TO THE SUBJECT MATTER HEREOF.