A. Agreement Definitions
“You” and “your” refers to the individual or entity that has ordered software as a service from Checkpos Inc. (“Checkpos”) or an authorized distributor by executing the ordering document that accompanies and incorporates this Checkpos software as a service agreement (collectively, the “agreement”). Software as a service consists of system administration, system management, and system monitoring activities that Checkpos performs for Checkpos programs, and includes the right to use the Checkpos programs, support services for such Checkpos programs, as well as any other services provided by Checkpos, as defined in the ordering document (collectively, the “services”). The term “program documentation” refers to the program user manual as well as any other materials provided by Checkpos as part of the services. The term “Checkpos programs” refers to the software products owned or distributed by Checkpos to which Checkpos grants you access as part of the services, including program documentation, and any program updates provided as part of the services. The term “users” shall mean those individuals authorized by you or on your behalf to use the services, as defined in the ordering document. The term “your data” refers to the data provided by you that resides in your services environment. The term “ordering document” refers to the ordering document signed by the parties that accompanies and incorporates this software as a service agreement, including the services policies and any other document referenced or incorporated into the ordering document.
B. Applicability of Agreement
This software as a service agreement is valid for the ordering document which this agreement accompanies.
C. Rights Granted
Upon Checkpos acceptance of your order and for the duration of the services term defined in the ordering document, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the services solely for your internal business operations and subject to the terms of the agreement. You may allow your users to use the services for this purpose and you are responsible for your users’ compliance with the agreement. The services are provided as described in, and subject to, the services policies referenced in the ordering document.
You acknowledge that Checkpos has no delivery obligation and will not ship copies of the Checkpos programs to you as part of the services. You agree that you do not acquire under the agreement any license to use the Checkpos programs specified in the ordering document in excess of the scope and/or duration of the services. Upon the end of the agreement or the services thereunder, your right to access or use the Checkpos programs specified in the ordering document and the services shall terminate.
D. Ownership and Restrictions
You retain all ownership and intellectual property rights in and to your data. Checkpos or its licensors retain all ownership and intellectual property rights to the services and Checkpos programs. Checkpos retains all ownership and intellectual property rights to anything developed and delivered under the agreement.
Third party technology that may be appropriate or necessary for use with some Checkpos programs is specified in the program documentation or ordering document as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by Checkpos and not under the agreement. You may not:
The rights granted to you under the agreement are also conditioned on the following:
E. Warranties, Disclaimers and Exclusive Remedies
Checkpos warrants that the services will perform in all material respects in accordance with the services policies referenced in the ordering document. If the services provided to you for any given month during the services term were not performed as warranted, you must provide written notice to Checkpos as specified in the ordering document no later than five business days after the last day of that particular month or within such other period stated in the ordering document.
CHECKPOS DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT CHECKPOS WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT CHECKPOS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CHECKPOS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
FOR ANY BREACH OF THE ABOVE WARRANTIES, CHECKPOS WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO CHECKPOS, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND CHECKPOS’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
F. Trial Use of the Services
If specified in the ordering document, you may order certain services for trial, nonproduction purposes subject to the terms and conditions of the agreement. Services acquired for trial purposes are provided “as is” and Checkpos does not offer any warranties for such services.
If a third party makes a claim against either you or Checkpos (“Recipient” which may refer to you or Checkpos depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or Checkpos (“Provider” which may refer to you or Checkpos depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Checkpos’s ability to meet its obligations under the relevant order, then Checkpos may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party Web page accessed via a hyperlink). Checkpos will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Checkpos. Checkpos will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. Checkpos will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
H. Support Services
Support services provided under the agreement are specified in the services policies referenced in the ordering document.
I. End of Agreement
Services provided under this software as a service agreement shall be provided for the period defined in the ordering document unless earlier terminated in accordance with the agreement. The term of the services and any renewal years are collectively defined as the “services term.” At the end of the services term, all rights to access or use the services, including the Checkpos programs listed in the ordering document, shall end.
If either of us breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable ordering document under which the breach occurred. If Checkpos ends the ordering document as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the agreement plus related taxes and expenses. If Checkpos ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the agreement, you may not use the services ordered. You further agree that if you have used an Checkpos Financing Division contract to pay for the fees due under an order and you are in default under that contract, you may not use the services that are subject to such contract.
In addition, Checkpos may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay Checkpos as required under the agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within sections C, D, N or R of this software as a service agreement. Checkpos may terminate the services hereunder if any of the foregoing is not cured within 30 days after Checkpos’s initial notice thereof. Any suspension by Checkpos of the services under this paragraph shall not excuse you from your obligation to make payment(s) under the agreement.
At your request, and for a period of up to 60 days after the termination of the applicable ordering document, Checkpos may permit you to access the services solely to the extent necessary for you to retrieve a file of your data then in the services environment.
You agree and acknowledge that Checkpos has no obligation to retain your data and that your data may be irretrievably deleted after 60 days following the termination of the ordering document.
Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
J. Fees and Taxes
You agree to pay for all services ordered as set forth in the applicable ordering document. All fees due under the agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Checkpos must pay based on the services you ordered, except for taxes based on Checkpos’s income. You will reimburse Checkpos for reasonable expenses related to providing any on-site portion of the services. Fees for services listed in an ordering document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.
You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the ordering document; however, the preceding does not relieve Checkpos of its obligation to deliver services that you have ordered per the terms of the agreement.
By virtue of the agreement, the parties may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. Checkpos will protect the confidentiality of your data residing in the services environment in accordance with the Checkpos security practices specified in the services policies referenced in the ordering document. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.
L. Entire Agreement
You agree that the agreement (including the information which is incorporated into the agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the agreement, including any Checkpos ordering document, shall supersede the terms in any purchase order or other non-Checkpos document and no terms included in any such purchase order or other non-Checkpos document shall apply to the services ordered. The agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the Checkpos Store by authorized representatives of you and of Checkpos.
M. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. CHECKPOS’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO CHECKPOS FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST CHECKPOS SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY
YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the services. You agree that such export control laws govern your use of the services (including technical data) and any services deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
P. Force Majeure
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.
Q. Your Data
Checkpos reserves the right to provide the services from locations, and/or through use of subcontractors, worldwide .
You agree to provide any notices and obtain any consents related to your use of the services and Checkpos’s provision of the services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.
R. Restrictions on Use of the Services
You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Checkpos under the agreement, Checkpos reserves the right to remove or disable access to any material that violates the foregoing restrictions. Checkpos shall have no liability to you in the event that Checkpos takes such action. You agree to defend and indemnify Checkpos against any claim arising out of a violation of your obligations under this section.
S. Services Tools
Checkpos may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the services and to help resolve your Checkpos service requests. The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing Checkpos’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the agreement.
If Checkpos provides you with access to or use of any tools in connection with the services, your right to use such tools is governed by the license terms that Checkpos specifies for such tools; however, if Checkpos does not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your services environment, subject to the terms of the agreement. Any such tools are provided by Checkpos on an “as is” basis and Checkpos does not provide technical support or offer any warranties for such tools. Your right to use such tools will terminate upon the earlier of Checkpos’s notice (which may be through posting on https://support.Checkpos.com or such other URL designated by Checkpos), the end of the services term, or the date that the license to use such tools ends under the license terms specified for such tools.
T. Statistical Information
Checkpos may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company’s name. Checkpos retains all intellectual property rights in such information.
U. Third Party Web Sites, Content, Products and Services
The services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Checkpos is not responsible for any third party Web sites or third party content provided on or through the services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.
V. Customer Reference
You agree (i) that Checkpos may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Checkpos on Checkpos.com for promotional purposes.