End User Limited License Agreement
LIMITED LICENSE AGREEMENT
This Limited License Agreement (the “Agreement”) is by and between Global Payments Inc., having a principal place of business at 10 Glenlake Parkway, N.E., Atlanta, Georgia 30328 (“GPI”) and You (“User”), and shall be effective on the date User first indicates his/her/its acceptance of the following Terms and Services and/or accesses any of the GPI Materials (the “Effective Date”). WHEN YOU ACCESS THE GPI MATERIALS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL TERMS IN THIS AGREEMENT (INCLUDING THE SPECIFIC LIMITATIONS, RESTRICTIONS AND DISCLAIMERS SET FORTH BELOW) AND ALSO THAT YOU ARE AUTHORIZED TO MAKE A DECISION TO AGREE TO AND ACCEPT THIS LEGALLY BINDING AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS IN THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE GPI MATERIALS OR THE GLOBAL TRANSPORT GATEWAY.
User wishes to evaluate the methods of integration to and services provided by GPI’s Hosts, and/or use the any GPI Host interface specifications to develop a software or firmware application for use exclusively with GPI’s services and products.
GPI is willing to license the intellectual property and other rights necessary to facilitate such evaluation, development and use pursuant to the terms and conditions set forth below. Accordingly, for good and valuable consideration the receipt and sufficiency of which are acknowledged by both parties, GPI agrees to grant, and User agrees to accept, a license to use the GPI User’s Kit according to the attached terms and conditions and any exhibits and addenda attached hereto, which are hereby incorporated by reference as if fully set forth herein (collectively, the “Terms and Conditions”).
TERMS AND CONDITIONS
- Definitions. Defined terms used herein shall have the meanings ascribed to them below:
- “Access User” means any Person licensed by User to access the Application.
- “Affiliates” means parties that control, are controlled by, or under common control with GPI.
- “Application(s)” means hosted service(s) developed by User using the GPI Host interface specifications and made available by User for use by Access Users.
- “Confidential Information” means any data or information, other than Trade Secrets, that is of value to GPI and is not generally known to third parties.
- “Documentation” means all written materials, including without limitation, any manuals in any form, provided by GPI, as may be periodically updated or amended.
- “GPI Host” means a Global Payments processing system.
- “GPI Marks” means any name, word, phrase, logo, symbol, design, image, or a combination of such elements used by GPI (or its Affiliates), whether registered or unregistered, to identify its products or services and deriving uniquely from GPI.
- “GPI Materials” means the Documentation, GPI Marks, GPI Tools, GPI User’s Kit, GPI website content, GPI Host interface specifications, any GPI System and any GPI Host (including without limitation, the Global Transport Gateway), collectively.
- “GPI System” means GPI computer and network systems
- “GPI Tools” means any functionality of the GPI Systems that provides Information in response to queries received from interfaces.
- “GPI User’s Kit” means all tools, protocols, software components and other interfaces and software provided by GPI pursuant to this Agreement, as well any Updates thereto, along with any instructions, including any sample code, for creating interfaces to any GPI Host.
- “Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization or other legal entity.
- “Restricted Territory” means Cuba, Iran, Iraq, Libya, or Sudan, or any other country subject to embargo or sanctions by the United States Department of the Treasury’s Office of Foreign Assets Control.
- “Territory” means Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Costa Rica, Denmark, Dominican Republic, Finland, France, Germany, Greece, Guatemala, Hong Kong, India, Ireland, Israel, Italy, Japan, Luxembourg, Malaysia, Mexico, The Netherlands, New Zealand, Norway, Panama, Peru, Philippines, Portugal, Puerto Rico, Romania, Singapore, South Africa, South Korea, Spain, Sweden, Switzerland, United Kingdom, United States, U.S. Virgin Islands, Venezuela.
- “Trade Secret” means any information of GPI (or its Affiliates) which is not commonly known by or available to the public, (i) from which GPI (or its Affiliates) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, including without limitation the GPI User’s Kit.
- “Update(s)” shall mean error corrections, modifications, updates, enhancements or revisions to the GPI Materials.
- Licenses and Consents to Use.
- Licenses. GPI hereby grants User one or more of the following personal, limited, revocable, non-exclusive, non-assignable, non-transferable licenses:
- (Development License) to use the GPI User’s Kit and Confidential Information for the sole purpose of developing and creating Application(s) during the Term and in accordance with the terms hereof, including but not limited to Section 6;
- (Development Access License) to exchange information with a GPI Host as reasonably needed during the Term and in accordance with the terms hereof, solely for the purpose of testing the Application(s); and
- (Production Access License) to access and use the interfaces as integrated into the Application exclusively to obtain services through the GPI Host as reasonably needed during the Term and in accordance with the terms hereof.
- The foregoing licenses are subject to User’s agreement, representation, and covenant that any Application developed pursuant to the foregoing license will be developed in a manner consistent with the requirements for obtaining and actually receiving the requisite certification from GPI of compliance with the GPI Host interface specification. Certification from GPI requires, among other things, proof that the User, service and/or the application is compliant with the applicable rules promulgated by the PCI Security Standards Council (PCI Co.), including without limitations the Payment Card Industry Data Security Standard (PCI-DSS) and the Payment Application Data Security Standard (PA-DSS). Except as expressly provided above, no license for any patents, copyrights, trademarks, trade secrets or any other intellectual property rights, express or implied, are granted hereunder. Copying of the manual, interface specifications, or system files for use other than backing up files and/or to transmit transactions to any GPI Host, the Global Transport Direct API, or Global Transport Client software API to systems other than the specified GPI Host or Global Transport Gateway is strictly prohibited. User may not remove any product identification, copyright, or other proprietary notices from the GPI Materials. Under no circumstances shall User reverse engineer, translate, re-direct, emulate, disseminate to other entities, decompile, adapt, or disassemble the information contained in any GPI Materials, nor shall User attempt to create source code/object code to emulate any GPI Materials.
- User acknowledges and agrees that, under no circumstances may it attempt to submit transactions to GPI, until after it has received a duly authorized certification letter from GPI and it has entered into the necessary agreements, including without limitation GPI’s Cardholder Transaction Information Security Agreement with GPI as part of the certification process.
- Licenses. GPI hereby grants User one or more of the following personal, limited, revocable, non-exclusive, non-assignable, non-transferable licenses:
- Representations and Acknowledgments
- Territory. User represents and warrants that (i) it is headquartered in one of the countries located within the Territory; (ii) it will develop the Application only in the Territory; and (iii) that it will not host the Application at a site located within the Restricted Territory. User acknowledges that GPI may, in GPI’s sole discretion, prevent access to the GPI System to Access Users residing in countries other than those of the Territory.
- Ownership. User hereby acknowledges that GPI owns the GPI Materials. User acknowledges that it has not acquired any ownership interest in the GPI Materials and will not acquire any ownership interest in the GPI Materials by reason of this Agreement. User will not at any time do or knowingly permit to be done any act or thing which would in any way impair the rights of GPI in and to the GPI Materials. Upon termination or expiration of this Agreement, User will cease and desist from all use of the GPI Materials in any way. GPI shall own all right, title, and interest in any modifications, derivatives, improvements, enhancements or extensions of or to the GPI Materials ("Derivative Works"), including any related Intellectual Property Rights, regardless of which party creates such Derivative Work. User hereby irrevocably transfers, conveys and assigns to GPI in perpetuity all right, title, and interest in such Derivative Works, including without limitation all Intellectual Property Rights, including the right to make Derivative Works and collective works with respect thereto, it being understood, however, that User has, and transfers, no rights with respect to User’s own products (exclusive of the GPI Materials and Derivative Works). GPI will have the exclusive right to apply for such Intellectual Property Rights as it wishes with respect to the Derivative Works. User agrees to execute such documents, render such assistance, and take such other action as GPI may reasonably request, at GPI’s expense, to apply for, register, perfect, confirm, and protect GPI’s rights in the Derivative Works including (without limitation) an assignment of copyright. Without limiting the foregoing, GPI will have the exclusive right to commercialize, prepare and sell products based upon, sublicense, prepare derivative works from, or otherwise use or exploit the Derivative Works. User hereby waives any and all moral rights that User (or its employees, agents or consultants) have or may have in any Derivative Works, including any right to identification of authorship or limitation on subsequent modification. User will not remove, modify, or obscure any copyright or other proprietary notices on the Software or the Documentation.
- Access to Application and Books and Records. Upon notice, User shall provide GPI or its representatives with (i) the URL for each location of the Application on the Internet hosted by User or on behalf of User and access to such copies of the Application as hosted, and (ii) access to all books and records associated with this Agreement, for the purpose of reviewing same to ensure User’s compliance with the terms of this Agreement.
- User Cooperation. User shall cooperate with GPI in enforcing the obligations hereunder and shall promptly report to GPI any matter of which it becomes aware which may constitute a breach of this Agreement or otherwise expose GPI to any loss or liability of any type. User shall promptly report to GPI any attempt by a Person to access the GPI Systems via the Application in a manner that (i) is inconsistent with the Terms and Conditions of this Agreement, (ii) adversely affects the performance or function of the GPI Host or any GPI systems or interferes with the ability of authorized parties to access the GPI Host or any GPI Systems, (iii) could damage the GPI Host or any GPI Systems, or (iv) is otherwise improper. User shall cooperate with GPI to prevent such matters and attempts.
- Changes to GPI Materials. GPI may terminate, update, alter, or supplement any or all of the GPI Materials, including any services or systems associated with such materials, at any time. GPI has waived the charges for access to or use of the GPI Materials, provided that such use is in compliance with each of the terms of this Agreement. However, GPI may assess charges for any or all of such items (including services included therein) in the future, in its sole discretion by providing notice of such charges.
- Compliance with Laws.User shall strictly comply with all applicable laws, rulings, ordinances, orders of governmental authorities having jurisdiction, and regulations and shall take no actions which would (i) cause GPI to be in violation of any laws, rulings or regulations applicable to it; or (ii) negatively reflect on the goodwill or reputation of GPI. User will comply to the extent applicable with the United States Export Administration regulations, the International Traffic in Arms regulations and any regulations or licenses administered by the Department of Treasury's Office of Foreign Assets Control.
- Information, Confidential Information and Trade Secrets. During the Term and thereafter, User shall not use, disclose or permit any Person access to any Trade Secrets, except as otherwise permitted in connection with its performance hereunder. During the Term and for a period of five (5) years thereafter, except as otherwise mandated by law, User shall not use, disclose, or permit any Person access to any Information or Confidential Information, except (a) solely in connection with the hosting of the Application for the benefit of User and (b) as otherwise permitted in connection with its performance hereunder. Without limiting the generality of the foregoing, User shall not remove any proprietary notice from, or disclose or distribute to any third party as part of the Application or otherwise, any GPI Materials, including without limitation any instructions or code provided to User as part of the GPI User’s Kit, in any human readable form, including without limitation in an open source format.
- Disclaimer of Warranties. THE GPI MATERIALS ARE PROVIDED “AS IS” AND IN THEIR PRESENT STATE AND CONDITION. NO WARRANTY, REPRESENTATION, CONDITION, UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, AVAILABILITY, DURABILITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE GPI MATERIALS OR OTHERWISE IS GIVEN OR ASSUMED BY GPI OR ITS AGENTS, AND ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. GPI MAKES NO WARRANTY WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION. GPI DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE GPI SYSTEMS AND ACCESS TO SUCH SYSTEMS MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF GPI’S CONTROL; GPI IS NOT LIABLE FOR ANY DAMAGES OF ANY TYPE CAUSED BY SUCH INTERFERENCE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU. THIS CONTRACT GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. IF YOU ARE DEALING AS A CONSUMER, YOUR STATUTORY RIGHTS WHICH CANNOT BE WAIVED, IF ANY, ARE NOT AFFECTED BY THESE PROVISIONS. YOU AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE.
- Indemnification. User shall indemnify and hold harmless, and at GPI’s option defend, GPI and its Affiliates, and their respective officers, directors, employees, agents, successors and assigns from and against any and all claims or counterclaims, liabilities, losses, disputes, damages and expenses, including without limitation any fines or penalties from any payment card networks, and legal fees incurred directly or indirectly by GPI, its parent, or its Affiliates, and their respective officers, directors, employees, agents, successors and assigns that arise out of or relate to (i) any license or sublicense of a Application by User; (ii) any performance, non-performance, or malperformance issues related to the Application and any negligence on the part of User and any of its employees, contractor(s), or agents; (iii) breach or non-performance of this Agreement by User; or (iv) any claim that the Application (excluding the GPI Materials), or any portion or use thereof, infringes the intellectual property rights of a third party.
- Limitation of Liability and Claim Limitation.
- Limitation of Liability. GPI SHALL NOT BE LIABLE TO USER OR ANY ACCESS USER FOR ANY PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR PENALTIES (INCLUDING LOST PROFITS, LOST SAVINGS AND THE INABILITY TO USE THE GPI SYSTEMS OR INFORMATION) ARISING OUT OF THIS AGREEMENT, DUE TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR USE OF THE GPI MATERIALS EVEN IF GPI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR PENALTIES. THIS LIMITATION OF LIABILITY SHALL BE APPLICABLE ONLY TO THE EXTENT PERMITTED BY LAW IN THE EVENT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF GPI OR IN THE EVENT OF PERSONAL INJURY OR DEATH. IN NO EVENT SHALL GPI’S LIABILITY FOR ANY DAMAGES (DIRECT OR OTHERWISE) OR PENALTIES OR LOSS, REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), DELICT OR OTHERWISE EXCEED US $1,000, ANY CLAIM FOR SUCH DAMAGES OR PENALTIES BEING HEREBY WAIVED BY USER, COMMERCIAL HOST, OR ANY ACCESS USER.
- Claim Limitation. CLAIMS NOT MADE BY USER WITHIN SIX (6) MONTHS AFTER THE FIRST EVENT GIVING RISE TO A CLAIM SHALL BE DEEMED WAIVED.
- Term and Termination.
- Term. This Agreement shall have a term of one (1) year, commencing on the Effective Date, and shall automatically renew for successive one (1) year terms unless earlier terminated in accordance with this Section (the “Term”).
- Termination. Either party may terminate this Agreement at any time with or without cause on sixty (60) days’ written notice to the other party. GPI may (i) terminate this Agreement at any time in the event of a material breach of the terms hereby by User if User fails to cure such material breach within thirty (30) days of receipt of written notice thereof; or (ii) at any time terminate this Agreement or prohibit access to any part of a GPI Host as necessary in GPI’s sole discretion to (a) correct a material error in the GPI Materials or (b) comply with a law, regulation or rule or any ruling of a court or other body of competent jurisdiction.
- Consequences of Termination or Expiration. Within five (5) business days after termination or expiration of this Agreement for any reason, User shall return to GPI or destroy, at GPI’s direction, all materials provided to User by GPI, including, without limitation, all copies of the GPI Materials and all other GPI Confidential Information and Trade Secrets, and shall delete all copies of materials stored on electronic media and certify in writing the deletion of same. Sections 1, 3, 5–10 (inclusive), 12 and 13 shall survive any termination or expiration of this Agreement for any reason.
- Right to Reference.GPI shall have the right to list User’s corporate name to identify User as a user of the GPI User’s Kit. Any other use of User’s trademarks, service marks, names, or logos by GPI shall require the prior written consent of User. Except as expressly provided in this Agreement, User agrees that it shall not, without prior written consent of GPI in each instance, (a) use in advertising, publicity or otherwise the name of GPI or any of its Affiliates, or any partner or employee of GPI or its Affiliates, nor any trade name, trademark, trade dress or simulation thereof owned by GPI or its Affiliates, or (b) represent, directly or indirectly, that any product or any service provided by User has been approved or endorsed by GPI or its Affiliates.
- Use of Information.
User acknowledges and agrees that any information User provides to GPI may be used by GPI for purposes of this Agreement. User represents that it has all necessary right to provide to GPI all personally identifiable information provided pursuant to this Agreement. User consents to the transfer of personally identifiable information provided to GPI by User to jurisdictions that may not have the same level of data protection as the country of origin of User or the Access Users.
User acknowledges that the Access Users are customers of GPI as well as customers of User. Nothing contained in this Agreement shall prevent GPI from marketing to or contacting its customers, including without limitation Access Users.
- Notices. Except as otherwise noted herein, all notices, demands, or other communications required or permitted to be given under this Agreement shall be in writing and shall be given by personal service (notice deemed effective on date delivered); overnight courier delivery (notice deemed effective one business day after dispatch); electronic mail (notice deemed effective on date of transmission); by facsimile or telecopier transmission if a transmission confirmation is received by the receiving party (notice deemed effective on date confirmation is received); or by United States certified mail, return receipt requested, postage prepaid (notice deemed effective on tenth business day following placement in mail) to the address, email address or facsimile number set forth on the first page hereof, or such other address, email address or facsimile number as changed through thirty (30) days’ prior written notice to the other party. All notices given by User shall reference this Agreement and include a copy to GPI’s legal department at the GPI address set forth on the first page hereof.
- Governing Law, Jurisdiction and Language. To the extent permitted by law, this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, United States of America, excluding (i) its conflict of law principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. To the full extent permitted by law and consistent with valid entry into a binding agreement, the controlling language of the Agreement is English and any translation User has received has been provided solely for User’s convenience. To the full extent permitted by law, all correspondence and communications between User and GPI under this Agreement must be in the English language. To the full extent permitted by law, the exclusive jurisdiction for any action relating to this Agreement shall be a federal or state court in Atlanta, Georgia, and the parties consent to such jurisdiction and waive and agree not to plead or claim that any such action or proceeding has been brought in an inconvenient forum. User agrees to the admissibility of computer records and electronic evidence in any dispute herein.
- Modification. Other than as expressly set forth herein, this Agreement may not be modified unless such modification is reduced to writing, dated, and executed by both parties.
- Waiver. GPI’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
- Assignment. User may not assign this Agreement or any rights hereunder, or delegate any obligations hereunder to any Person, in whole or in part, whether voluntary or by operation of law, without the prior written consent of GPI, which shall not be unreasonably delayed. Any other non-approved purported transfer, assignment, or delegation by User shall be null and void and of no force or effect. GPI may assign, delegate or transfer all or any part of this Agreement or any rights hereunder without the need for any approval or consent from User.
- Non-Agency. Nothing in this Agreement or elsewhere shall be construed to make the parties partners, joint venturers, representatives or agents of each other, nor shall either party, directly, indirectly, in writing or otherwise, so represent to any third person.
- Severability. If one or more provisions of this Agreement shall be held to be invalid or unenforceable, the remaining provisions shall not be affected thereby.
- Force Majeure. GPI shall not be liable or responsible for any delay or failure in performance if such delay or failure is due to causes beyond its reasonable control, including but not limited to, work stoppages.
- Remedies. Any remedies provided herein are non-exclusive. User acknowledges that if it breaches any term of this Agreement, GPI will have no adequate remedy at law available to it, will suffer irreparable harm, and will be entitled to equitable relief.
- Canada. The parties declare that they have required that this Agreement and all documents related hereto, including, without limitation, the GPI User's Kit, either present or future, be drawn up in the English language only. Les parties déclarent par les présentesqu'elles exigent quecette entente et tous les documents y afférents,