For purposes of these Verifone Minimum Terms, only, the following terms shall have the following meanings:
(A) “Applicable Law” means all international, federal, state, provincial, and local laws, rules, regulations, directives, and governmental requirements applicable to the Verifone Products, the provision of the Services, or performance of Verifone’s obligations under these Verifone Minimum Terms.
(B) “Verifone Documentation” means documentation regarding the Verifone Products or the Verifone Software provided by Verifone at any time.
(C) “End User(s)” means the direct and indirect individual or enterprise customers of Stripe’s products or services, including the Verifone Products.
(D) “Intellectual Property Rights” means all worldwide patent rights, design rights, copyrights, mask work rights, database rights, trademarks, trade secrets, know-how and all other intellectual property or industrial property rights (whether statutory, common law or otherwise), including any registrations, applications, renewals, and extensions thereof and all rights to sue for infringement or misappropriation thereof, whether now existing or acquired in the future.
(E) “Verifone Products” means the Verifone-branded equipment, software and/or accessories.
(F) “Verifone Software” means software contained in any or all of the Verifone Products.
(G) “Services” means any and all warranty services, repair services, extended warranty services, services relating to Stripe’s purchase of the Verifone Products from Verifone; the manufacture, supply and other services provided by Verifone under Stripe’s agreement with Verifone (including deployment services and maintenance and additional support services); and any other services not specifically described in such agreement but that are an inherent, necessary, or customary part of such services or are required for proper performance or provision of such services.
(H) “Verifone” means Verifone (U.K.) Limited.
1. Minimum Purchase and Use Terms
These Verifone Minimum Terms apply only to the Verifone Products and Verifone Software.
(A) Verifone is not contracting with the End Users to supply End Users with any technology or services, as they are supplying the Verifone Products to and performing Services for Stripe who in turn is making the Verifone Products available to the End Users as part of Stripe’s services.
(B) the End User shall ensure that only competent trained employees (or persons under their supervision) are allowed to operate or use the Verifone Products and that adequate security measurements are put in place to ensure that no unauthorised third party can have access to or use of the Verifone Products in general;
(C) the End User shall not incorporate into or with other software or create a derivative work of any part of the Verifone Products other than that which has been supplied by or approved in writing by Verifone or Stripe;
(D) the End User shall only use the Verifone Products, Verifone Software and Services for the purpose for which they are provided and in accordance with all relevant Verifone Documentation;
(E) the End User shall not use the Verifone Products or Verifone Software to violate, or in connection with any application that violates, any applicable laws, including with regard to the collection, storage, or transmission of data in violation of any applicable laws;
(F) the End User shall not reverse engineer, decompile, disassemble, translate, modify, alter, create any derivative works based upon, or change the Verifone Software or any part thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Verifone Software or any part thereof, without the prior express written consent of Verifone;
(G) the End User shall not remove, modify or otherwise tamper with trademarks, notices or legends on the Verifone Products or the Verifone Software, without the prior express written consent of Verifone;
(H) the End User shall undertake to package the Verifone Products appropriately and sufficiently when sending them by post/courier, and is liable to Verifone for any damage caused to the Verifone Products in transit as a result of any insufficient packaging.
(I) Nothing in these Verifone Minimum Terms assigns any Intellectual Property Rights to the End User.
(J) End Users must protect the confidentiality of Confidential Information in a manner no less restrictive than the protections set forth in sections 1(J)(a)-(d) below:
a. Definition: All technical information, know-how, data, documentation, drawings, samples, designs, specifications, engineering details and other proprietary information (including information pertaining to the Stripe Terminal products and data of a financial, commercial, or technical nature) that is supplied or otherwise made available by one party to the other party or its affiliates, whether in oral, written, graphic or electronic form, constitutes “Confidential Information” hereunder. Any proprietary materials of Verifone are and shall remain the Confidential Information of Verifone.
b. Duty of confidence: Any party (the “Receiving Party”) receiving Confidential Information of Verifone (the “Disclosing Party”) shall (a) disclose the Disclosing Party’s Confidential Information to only those directors, officers and employees of the Receiving Party whose duties justify their need to know such information and who there are bound by obligations to maintain the confidentiality, proprietary and/or trade secret status of such Confidential Information in a manner consistent with these Verifone Minimum Terms; and (b) use Confidential Information only for the purposes set forth in these Verifone Minimum Terms and not for any purpose detrimental to the Disclosing Party. In any event, the Receiving Party shall treat all Confidential Information of the Disclosing Party as strictly confidential and shall use the same care to prevent disclosure of such information as the Receiving Party uses with respect to its own Confidential Information, which shall not be less than the care a reasonable person would use under similar circumstances. The Receiving Party shall not copy any Confidential Information of the Disclosing Party without the express prior written consent of the Disclosing Party, and all Confidential Information (and copies thereof) shall be returned promptly to the Disclosing Party upon request. The Receiving Party shall ensure that its directors, officers and employees comply with the provisions of this Section 1(J), and the Receiving Party shall be liable for any breach of this Section 1(J) resulting from the act or omission of any of its directors, officers and employees.
c. Exceptions: Notwithstanding the foregoing, information disclosed to the Receiving Party shall not be deemed to be Confidential Information if (i) the Receiving Party establishes that the information was already known to the Receiving Party, without obligation to keep it confidential, at the time of its receipt from the Disclosing Party, as evidenced by documents in the possession of the Receiving Party prepared or received prior to the Disclosing Party’s disclosure; (ii) the Receiving Party establishes that the information was received by the Receiving Party in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; (iii) the Receiving Party establishes that the information was publicly known at the time of its receipt by the Receiving Party or has become publicly known other than by a breach of these Verifone Minimum Terms or other action by the Receiving Party; or (iv) the Receiving Party establishes that the information is independently developed by or on behalf of the Receiving Party without reference to the Confidential Information disclosed by the Disclosing Party.
d. Authorized disclosures: Notwithstanding anything to the contrary, the Receiving Party may disclose Confidential Information provided by the Disclosing Party: (i) to actual and prospective investors and to its financial, accounting, and legal representatives with a need to know for the purpose of providing professional services to the Receiving Party; (ii) to the extent required by Applicable Law, or by the listing of similar rules of the stock exchange on which the securities of the Receiving Party may be listed (provided that, prior to such disclosure, the Receiving Party, to the extent permitted by law, shall provide written notice of such request to the Disclosing Party to allow the Disclosing Party to seek to redact or otherwise limit the scope of such disclosure); and (c) as required to be disclosed pursuant to any judicial or governmental request, requirement, or order; provided that, to the extent permitted by law, the Receiving Party shall take reasonable steps to give the Disclosing Party sufficient prior notice in order to contest or limit such request, requirement, or order.
(K) Title to the Verifone Software belongs at all times to Verifone or their licensors. Nothing in these Verifone Minimum Terms assigns title to the Verifone Software to stripe or the End User.
(L) The Verifone Products and Verifone Software are, where relevant, subject to export control laws, including without limitation, U.S. Export Administration Regulations, the International Traffic in Arms Regulations, the EU Council Regulation (EC) No 428/2009 (and national legislation implementing this EU regulation).
(M) EXCEPT WITH RESPECT TO THE WARRANTY PROVIDED BY VERIFONE TO STRIPE WITH RESPECT TO THE VERIFONE PRODUCTS OR ANY WARRANTY PROVIDED BY STRIPE TO ITS CUSTOMERS, ALL WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS ARE HEREBY DISCLAIMED. STRIPE DOES NOT WARRANT THAT ANY VERIFONE PRODUCT OR VERIFONE SOFTWARE WILL MEET THE REQUIREMENTS OF THE MERCHANT. THE MERCHANT ACKNOWLEDGES THAT UNDER NO CIRCUMSTANCES DOES STRIPE REPRESENT OR WARRANT THAT ALL PROGRAM ERRORS IN ANY VERIFONE SOFTWARE CAN BE REMEDIED
(N) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE END USER AGREEMENT: (A) AGGREGATE LIABILITY IN CONNECTION WITH ANY AGREEMENT, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE AGGREGATE FEES PAID FOR BY THE END USER FOR THE VERIFONE PRODUCT; AND (B) THERE SHALL BE NO LIABILITY FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT WITH RESPECT TO EACH OF THE FOREGOING: LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY A PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT OR FRAUD.
2. Additional Terminal Reseller Terms
(A) Subject to the terms and conditions agreed to by Reseller and Stripe (or a person or entity that Stripe has authorized to resell or distribute the Verifone Products) and applicable to Reseller’s resale or distribution of the Verifone Products (including these Verifone Minimum Terms), Reseller is authorized to resell and otherwise distribute the Verifone Products to End Users, provided that Reseller may not, and must prohibit its End Users from, selling or otherwise distributing the Verifone Products to any person or entity that uses or provides Verifone Products for use on the Petroleum forecourt (“Petro”). Reseller acknowledges that the Verifone Products are designed for use in the country in which it is originally delivered by or on behalf of Stripe (or a person or entity that Stripe has authorized to resell or distribute the Verifone Products) to Reseller only and are subject to the export control laws of the applicable country. The Reseller shall refrain from making sales of the Verifone Products to End Users outside of such country and in any event shall not export the Verifone Products or software included in the Verifone Products outside of the United Kingdom or the European Economic Area.
(B) Provisions for Resale: Reseller may be provided with Verifone Documentation that Reseller shall include with the Verifone Products when such Verifone Products are resold by Reseller. Reseller agrees that all such documentation shall be for the benefit of Verifone and shall be enforceable directly by Verifone (in Verifone’s name or on behalf of Reseller). Reseller is free to determine the price at which it sells or sub-licences the Verifone Products and Verifone Software to its End Users. Although Verifone may publish suggested wholesale or retail prices, these are suggestions only and the Reseller shall be entirely free to determine the actual prices at which Verifone Products are sold or sub-licensed to its customers.
If any sub-licensee breaches the terms of the sub-licence (as described in Section 2(A) above), Reseller shall use commercially reasonable efforts to require the sub-licensee to remedy the breach as soon as possible. If Reseller is unsuccessful or if the breach is incapable of remedy, the Reseller shall exercise any right it may have to terminate the agreement between the Reseller and the sub-licensee authorizing the sublicensee to resell or otherwise distribute the Verifone Products as soon as reasonably practicable and in accordance with its terms and, at Verifone’s request, the Reseller shall exercise any right it may have to recover the Verifone Products and all related documents and materials from the sub-licensee.
The Reseller acknowledges that Verifone has no contract with the End Users or sub-licensees of the Reseller. Reseller will bind all End Users to the provisions of Section 1 of these Verifone Minimum Terms and will bind End Users or sub-licencees that resell or otherwise distribute the Verifone Products to the provisions of Section 2 of these Verifone Minimum Terms. Reseller shall use reasonable efforts to enforce its contracts with End Users or sub-licensees, including these Verifone Minimum Terms to ensure that any breach is remedied as soon as possible. Reseller shall at its expense indemnify, defend, and hold harmless Verifone from and against all costs, losses, liabilities, damages, judgments and expenses that Verifone incurs due to any failure by Reseller to bind End Users to the Verifone Minimum Terms as required herein.
(C) Compliance with laws and other standards: In reselling the Verifone Products, Reseller shall comply with all international, federal, state, provincial, and local laws, rules, regulations, directives, and governmental requirements applicable to Reseller’s business (“Applicable Law”). Without limiting the generality of the foregoing, Reseller shall under no circumstances intentionally misrepresent the Verifone Products, the features or capabilities thereof, or the warranties applicable thereto.
(D) License for Verifone Software and Verifone Documentation:
a. Reseller’s right to market, distribute or otherwise transfer the Verifone Software or Verifone Documentation: is further limited as set forth below. The terms “sell” and “buy,” and similar terms, as used with respect to any Verifone Software and/or Verifone Documentation shall mean the grant to Reseller of a non-exclusive, non-transferable licence under Verifone’s intellectual property rights in the Verifone Software and Verifone Documentation only: (1) to use, sell, offer to sell, import, display, perform, distribute, and execute the Verifone Products and Verifone Software (in object code only) as part of the Verifone Products, and (2) to resell, lease, import, export, and otherwise distribute Verifone Documentation in connection with the resale, lease, or distribution of Verifone Products to End Users (subject to the restrictions imposed in Section 2(D)(b) below).
b. Restrictions on License: Reseller shall not by any means reverse engineer, decompile, disassemble, translate, copy, modify, alter or otherwise change any Verifone Software, or part thereof, without the prior express written consent of Verifone (except as permitted by Applicable Law). Reseller shall have no right to obtain source code for any Verifone Software provided by Verifone by any means without the prior express written consent of Verifone. Reseller shall not use any components of the Verifone Software to alter or create tables or reports except as necessary for using the Verifone Software. Unless otherwise permitted under these Verifone Minimum Terms, Reseller shall not copy the Verifone Software except for one copy of the Verifone Software made by Reseller for purposes of backup solely in support of the permitted use, provided that Reseller reproduces on any such backup copy all copyright notices and any other confidentiality or proprietary legends that are on the media or encoded in the Verifone Software. Reseller shall not permit any third party to perform any of the foregoing prohibited activities.
c. Limited Verifone Software Warranty: To the extent Stripe provides a limited warranty for the Verifone Software, to the maximum extent permitted by law, in the event of a breach of such limited warranty, Reseller’s sole and exclusive remedy shall be to return the applicable Verifone Product containing defective Verifone Software to Stripe, postage prepaid, in accordance with Stripe’s standard return material authorization process. Upon Stripe’s receipt of such media, Stripe shall, at its option, (a) provide a replacement in exchange for the defective Verifone Product; or (b) correct the defective Verifone Software.
d. Additional Warranty Exclusions: To the extent Stripe provides a limited warranty for the Verifone Products or Verifone Software, to the maximum extent permitted by law and without limiting any other exclusions that Stripe may apply to such warranty, the limited Verifone Product and Verifone Software warranties exclude:
i. any components not manufactured by Verifone, Verifone Software not developed by Verifone;
ii. consumable items (e.g., paper and ribbons);
iii. spare parts or services;
iv. Verifone Products, Verifone Software or components thereof (including Verifone Software components) that have been altered, modified, repaired or serviced except by Verifone or its representatives;
v. a Verifone Software component of a Verifone Product which is sold or licenced subject to a separate license agreement or other document relating to such Verifone Software component (including a “shrinkwrap” license agreement) in which event the warranties applicable to such Verifone Software component will be solely as stated in such other license agreement or document. Verifone makes no warranties that the Verifone Software components of any Verifone Product will operate in conjunction with any other software or with any equipment other than the Verifone Products;
vi. defects caused by improper installation, testing or use; failure of electrical power, air conditioning or humidity control; or any act of God, accident, fire or other hazard;
vii. warranty claims resulting from use in a manner other than as specified by Verifone; use in combination with anything not supplied by Verifone; or
viii. failure to install updates to the Verifone Product or Verifone Software.
All warranties of certification or regulatory compliance are applicable only in the country in which the Verifone Product and Verifone Software was first delivered to Reseller by or on behalf of Stripe (or a person or entity that Stripe has authorized to resell or distribute the Verifone Products).