Supplemental Terms – Verifone Cloud Device Integration
These Supplemental Terms set forth the terms and conditions on which Verifone will provide the Verifone Cloud Device Integration, which consists of the Verifone Cloud Device Integration application programming interface (the “VCDI API”) and Verifone Cloud Device Integration service (the “VCDI Service” and, together with the VCDI API, “VCDI”), which together allow a point-of-sale device or system to send an instruction to a Verifone payment terminal running a compatible payment application through the Verifone cloud instead of through a hardwired connection between a point-of-sale device and the payment terminal. If Merchant uses a third-party point-of-sale system that has been integrated to the VCDI Service either by Verifone or such third party using the VCDI API, then Merchant will not be granted a license to the VCDI API and the terms and conditions related to the VCDI API herein will apply to Merchant’s use of such integration.
1. GENERAL.
(a) General. The VCDI API shall be considered a “Product” and the VCDI Service a “Verifone Cloud Service”.
(b) Description of the VCDI API. For purposes of these Supplemental Terms, the VCDI API includes the application programming interface, the API documentation and other materials made available to Merchant, and any updates to any of the foregoing that Verifone makes available to VCDI API licensees.
(c) Standard Products and Services. The VCDI API is provided “as is” and subject to all the disclaimers, limitations, and other terms contained in Section 9 (Warranties) of the Agreement. Notwithstanding anything to the contrary in the Agreement and except as expressly provided in these Supplemental Terms or as otherwise mutually agreed by and between the Parties, (i) the VCDI Service and the VCDI API shall be Verifone’s standard, off the shelf service and corresponding software, and no special or customized versions shall be provided by Verifone, and (ii) Verifone shall have no obligation to ensure that the VCDI Services and the VCDI API operate in conjunction with Merchant’s equipment, software or other products or systems, and Merchant shall be responsible for all costs it incurs in connection with any modifications it elects to make to its own equipment, software or other products or systems.
(d) Supported Verifone Payment Device Models. The VCDI API is for use only with the device models specified by Verifone that are running a compatible payment application (the “Supported Device Models”).
2. INTELLECTUAL PROPERTY; LICENSE TO VCDI API.
(a) Ownership of VCDI. The Parties acknowledge that, as between Verifone and Merchant, Verifone owns all rights in the VCDI.
(b) License to VCDI API. Verifone hereby grants Merchant a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the term of these Supplemental Terms to use the VCDI API solely for the purposes of developing a software integration that will communicate and interoperate with the VCDI Service (the “Merchant Software”); provided that Merchant may sub-contract such development work to a third-party. Merchant may not otherwise assign, delegate, sublicense, pledge, or otherwise transfer its rights hereunder without the prior written consent of Verifone. Merchant shall indemnify, defend, and hold Verifone and its affiliates and each of their directors, officers, and employees harmless from and against any breach of these license terms by Merchant and any person given access to the VCDI API by Merchant, including any software developer.
(c) Restrictions. Merchant shall not use the VCDI API for any purpose beyond the scope of the license granted in these Supplemental Terms and shall ensure that its software integration complies with the technical and other requirements specified in the current version of the VCDI API documentation. Without limiting the foregoing and except as expressly set forth in these Supplemental Terms, Merchant shall not at any time, and shall not permit others to: (i) copy, modify, or create derivative works of the VCDI API, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the VCDI API; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the VCDI API, in whole or in part; (iv) remove any proprietary notices from the VCDI API; (v) use the VCDI API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law or the rules of any payment card network; (vi) combine or integrate the VCDI API with any software, technology, services, or materials not authorized by Verifone; (vii) design or permit any Merchant Software to interact with the VCDI API to disable, override, or otherwise interfere with any Verifone-implemented communications to end users, consent screens, user settings, alerts, warning, or the like or otherwise interfere with, interrupt or damage the operation of Verifone’s Products or Services; (viii) use the VCDI API in any software application to replicate or attempt to replace the functionality or user experience of the VCDI Service or to otherwise circumvent Verifone’s licensing and authorization requirements; or (ix) attempt to cloak or conceal Merchant’s identity or the identity of its software applications when requesting authorization to use the API.
(d) Third-Party Content. Verifone shall not be responsible or liable for any third-party content accessed or enabled by Merchant using the VCDI API, including any third-party information or software application. Merchant shall use any such content in accordance with any terms applicable to such third-party content.
(e) Reservation of Rights. Verifone reserves all rights not expressly granted to Merchant in these Supplemental Terms. Except for the limited rights and licenses expressly granted under these Supplemental Terms, nothing in these Supplemental Terms grants to Merchant or any third party, by implication, waiver, estoppel, or otherwise, any intellectual property rights or other right, title, or interest in or to the VCDI API. The license granted hereunder is in all cases subject to the restrictions imposed in Section 6 (Licenses; Restrictions) of Exhibit C.
(f) Open-Source Components.
(i) The VCDI API may contain or be provided with code or other components that are subject to the terms and conditions of “open source” software licenses, including terms and conditions relating to Merchant’s use, reproduction, and distribution thereof (the foregoing, “Open-Source Components”). To the extent required by such licenses or in the event such licenses conflict with any terms contained in this Agreement, the terms of such licenses will apply in lieu of the terms of these Supplemental Terms and the Agreement with respect to such Open-Source Component.
(ii) Merchant shall not integrate or use the VCDI API with any Viral Open-Source Software or otherwise take any action that could require disclosure, distribution, or licensing of all or any part of the VCDI API in source code form. “Viral Open-Source Software” shall mean software licensed under the GNU General Public License, the GNU Lesser General Public License, or any other license terms that could require, or condition the use, modification, or distribution of such software on, the disclosure, distribution, or licensing of any other software in source code form, for the purpose of making applications, or at no charge. Any violation of the foregoing provision shall immediately terminate Merchant’s license and other rights to the VCDI API granted under these Supplemental Terms.
(g) Other Third-Party Materials; Copyrighted Materials. Portions of the VCDI API may utilize or include third-party software and other copyrighted material. Acknowledgments, licensing terms, and disclaimers for such material are contained in the Documentation included with the VCDI API or may otherwise accompany such material, and Merchant’s use of such software and materials are governed by those respective terms. In the event of conflict between this Agreement and any applicable terms relating to such third-party software or copyrighted materials, such applicable terms shall control solely with respect to the third-party software or copyrighted materials.
(h) Disclosures by Merchant. Merchant shall disclose to Verifone its activities relating to the VCDI API from time to time upon Verifone’s reasonable request and subject to Merchant’s ability to disclose such without breaching confidentiality obligations to third parties.
(i) Authentication Credentials. Merchant must obtain authentication credentials from Verifone to use and access the VCDI API (the “Authentication Credentials”). Merchant may not share the Authentication Credentials with any third party, must keep the Authentication Credentials secure, and must use the Authentication Credentials as Merchant’s sole means of accessing the VCDI API. Verifone may revoke the Authentication Credentials immediately if Merchant breaches any of the terms set forth herein.
3. VCDI SERVICE
(a) Authorization to Use. Verifone hereby grants Merchant a right to access and use the VCDI Service during the term of these Supplemental Terms in accordance with these terms. Nothing herein grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the VCDI Service and any accompanying documentation or materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the VCDI Service and any accompanying documentation or materials are and will remain with Verifone.
(b) Availability. Verifone will use commercially reasonable efforts to make the VCDI Service available for access and use by Merchant at least 99.9% of the time, as measured over the course of each calendar month, excluding unavailability due to performance or availability issues: (i) due to Force Majeure Events or circumstances beyond Verifone’s reasonable control; (ii) during planned maintenance, routine updates or other scheduled maintenance; (iii) during or with respect to beta or trial versions of the VCDI Service; (iv) that result from the use of services, hardware, or software not provided by Verifone, including issues resulting from failure of communications or Internet service, domain name service issues, other connectivity issues; (v) that result from Merchant’s failure to adhere to any required configurations, use supported platforms, or follow any policies for acceptable use, or from Merchant’s use of the VCDI Service in a manner inconsistent with the features and functionality of the VCDI Service (for example, attempts to perform operations that are not supported) or inconsistent with the Documentation provided by Verifone; or (vi) due to Merchant’s acts or omissions (or acts or omissions of others engaged or authorized by Merchant, including anyone gaining access to Merchant’s network by means of Merchant passwords or equipment or otherwise resulting from Merchant’s failure to follow appropriate security practices), including without limitation, any negligence, willful misconduct, or use of the VCDI Service in breach of the Master Agreement or any Exhibits thereto.
(c) Configuration. Merchant is responsible for ensuring that the VCDI Service is configured suitably for its purposes, including in a manner which allows fail-safe communication to the VCDI Service in the event of communication changes or disruptions. Verifone is not responsible for any resulting costs or losses incurred by Merchant if devices or systems cease communicating with the VCDI Service. Verifone is not responsible for any losses or damages caused by improper use of the VCDI Service.
4. MERCHANT RESPONSIBILITIES
(a) Merchant is responsible and liable for all uses of the VCDI API, whether such access or use is permitted by or in violation of these Supplemental Terms.
(b) Merchant is solely responsible for the Merchant Software and any configurations or instructions made or transmitted using VCDI.
(c) Verifone reserves the right to limit the number of periodic API calls Merchant is allowed to make if Verifone determines such limitation is necessary to safeguard the availability or functionality of the VCDI. Verifone may temporarily suspend access to the VCDI API if Merchant exceeds the API call limits. Attempts to circumvent API call limits may result in termination of these Supplemental Terms or suspension of the license to use the VCDI API. If Verifone limits the number of permitted periodic API calls, any unused API calls from any given period will not roll over to future periods.
5. DATA USE AND RESTRICTIONS
(a) No Cardholder Data. VCDI does not involve the accessing, storing, or processing of any Cardholder Data (“CHD”) or Sensitive Authentication Data (“SAD”), each as defined in the PCI DSS rules, by Verifone. Merchant agrees to not transmit any data categorized as CHD or SAD through the VCDI API or otherwise in connection with using VCDI. Any data transmitted which can be categorized to be considered CHD or SAD may be deleted without notice. If Merchant transmits data relating to cardholder information or data that could reasonably be captured within the scope of PCI DSS through the VCDI API or otherwise in connection with using VCDI, then Merchant shall ensure that all such data and transfers are compliant with PCI DSS requirements (including but not limited to encryption requirements). Merchant shall indemnify, defend, and hold Verifone, its affiliates, and each of their directors, officers, employees, and agents harmless from and against all losses, claims, damages, penalties or liabilities, including but not limited to fines and penalties, arising from any breach of this Section by Merchant.
(b) Technical and Other Data. Merchant acknowledges and agrees that Verifone may collect and use technical data and other information in connection with Merchant’s use of VCDI, including technical and usage information about devices or systems from which VCDI is used, for data analytics and optimization, to facilitate the provision of VCDI, updates, support, and other services, to improve VCDI and for other lawful purposes.
6. MODIFICATIONS, MAINTENANCE AND SUPPORT. Verifone will provide support for issues pertaining to the VCDI API in accordance with Supplemental Terms - Maintenance and Support for Verifone Software. Verifone may modify the VCDI API at any time without notice; provided that Verifone endeavors to minimize modifications to the VCDI API that may impact an existing software integration by Merchant. Certain modifications may require Merchant to make changes to the Merchant Software to continue to be compatible with the VCDI API.
7. INDEMNITY. Merchant shall indemnify, defend, and hold Verifone and its affiliates and each of their directors, officers, employees, and agents harmless from and against all claims, actions, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with (i) the Merchant Software, (ii) Merchant’s configurations or instructions made using VCDI, including, but not limited to, any claim of infringement or misappropriation of the Intellectual Property Rights of any third party, (iii) any content or data Merchant routes into or uses with the VCDI API, and (iv) Merchant’s violation of these Supplemental Terms.
8. EFFECT OF TERMINATION. Upon termination of these Supplemental Terms, (a) all licenses and rights granted to Merchant hereunder will also terminate, (b) Verifone will no longer be obligated to provide Maintenance and Support hereunder, and (c) Merchant must cease using, destroy, and permanently delete all copies of the VCDI API from all devices and systems that Merchant directly or indirectly controls.