Software Licensing Agreement
BY CLICKING THE ACCEPTANCE BUTTON AND INSTALLING THE SPLITIT SOFTWARE YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE TO AND ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT
SPLITIT RESERVES THE RIGHT TO MODIFY THIS EULA AS NEEDED IN ITS SOLE DISCRETION. THE EULA IN EFFECT AT THE TIME MERCHANT DOWNLOADED THE SPLITIT SOFTWARE WILL GOVERN MERCHANT’S USE OF IT, UNLESS WE OBTAIN MERCHANT’S CONSENT OTHERWISE. MERCHANT’S CONTINUED USE OF THE SPLITIT SOFTWARE AFTER A CHANGE TO THE EULA HAS BEEN BROUGHT TO MERCHANT’S ATTENTION WILL CONSTITUTE MERCHANT’S ACCEPTANCE OF THE CHANGES AND THE REVISED EULA. IF MERCHANT DOES NOT AGREE THAT THIS AGREEMENT IS ENFORCEABLE, DO NOT USE THIS SPLITIT SOFTWARE.
1. LICENSE GRANT
1.1. Non-Exclusive License for the Splitit Software.
During the Term of your Merchant Agreement, you are hereby granted a non-exclusive, non-transferrable, limited right to use the Splitit Software, so long as you are current in paying all applicable Fees in accordance with such Merchant Agreement subject to the restrictions contained herein and restrictions communicated to you in the future by us. Merchant acknowledges the Splitit Software under said Merchant Agreement is subject to a patent issued to Splitit by the United States Patent and Trademark Origination on July 4, 2013, as Patent number 8290864, and is further subject to a patent published by the World Intellectual Property Organization on October 4, 2014, as application number, WO/2014/053920.
Merchant shall not obtain title, copyrights or any other proprietary right to the Splitit Software. At all times, Splitit retains all rights to the Splitit Software, including but not limited to updates, enhancements and additions.
1.3. Use of the Splitit Software.
Merchant’s use of the Splitit Software shall be limited to that expressly authorized by Splitit. Splitit’s suppliers and vendors are intended third-party beneficiaries of the Merchant Agreement to the extent of any terms herein pertaining to such suppliers’ ownership rights; such suppliers have the right to rely on and directly enforce such terms against Merchant. Merchant shall use and operate the Splitit Software only for the Splitit Services.
1.4. Use of Trademarks.
Except as authorized in this Merchant Agreement, you shall not take any actions inconsistent with Splitit’s ownership of Splitit Software, Splitit’s Trademarks and any associated registrations or attack the validity thereof. You shall not use the Splitit Software or our Trademarks in any manner that would indicate that you are using such Splitit Software or our Trademarks other than as a licensee nor assist any third party do the same
1.5. Compliance with Laws.
You agree that you will comply, at your own expense, with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction over such matters. You shall not use the Splitit Software in any manner, or in furtherance of any activity that may cause us to be subject to investigation, prosecution or legal action. We reserve the right to amend, modify or change our policies, procedures and guidelines, and you shall comply with all of our then current policies, procedures and guidelines governing the Splitit Software.
1.6. Splitit Software Service and Maintenance.
Merchant will promptly notify Splitit of any failure or other incident resulting in the loss of use of the Splitit Software or need for repair or maintenance, whereupon Splitit will use commercially reasonable efforts to repair or make the necessary arrangements to obtain required maintenance. Merchant shall cooperate with Splitit in its attempt to diagnose any problem with the Splitit Software. In the event Merchant’s Splitit Software requires additional Software, Merchant is obligated to cooperate with Splitit to achieve service restoration. Merchant acknowledges that Splitit does not warrant that any such repair or maintenance efforts will be successful. If Splitit efforts are not successful, Merchant may terminate this Agreement in accordance with Section 3. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, FOR INTERRUPTIONS, OUTAGES OR OTHER DELAYS IN THE SPLITIT SOFTWARE.
2. NO ASSIGNMENT; NO TRANSFER
You agree not to transfer or assign the Splitit Software and/or this Agreement to another party without the prior written consent of Splitit. If such consent is given and you transfer or assign the Splitit Software and/or this Agreement, then you must at the same time either transfer any copies of the Splitit Software and Documentation to the same party or destroy or return to Splitit any such materials not transferred. Except as set forth above, you may not transfer or assign the Splitit Software or rights under this Agreement.
3. NO MODIFICATION; NO REVERSE ENGINEERING
Merchant shall not disclose the Splitit Software to any party, convey, copy, license, sublicense, modify, translate, reverse engineer, decompile, disassemble, tamper with, create any derivative work based or otherwise attempt to discover the source code or trade secrets of the Splitit Software or related technology, or to assist someone in performing any of the above prohibited acts.
4. IMPORT/EXPORT RESTRICTIONS
Merchant agrees that the Splitit Software (or any copies thereof) will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Splitit Software is identified as export controlled items under the Export Laws, Merchant represent and warrants that Merchant is not a citizen, or otherwise located within, an embargoed nation (including without l imitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that Merchant is not otherwise prohibited under the Export Laws from receiving the Splitit Software. All rights to use the Splitit Software are granted on condition that such rights are forfeited if Merchant fails to comply with the terms of this EULA.
5. TERM AND TERMINATION
This license will be continue from the date of the Merchant Agreement, so long as you are current in paying all applicable Fees as defined in the Merchant Agreement subject to the restrictions contained herein and restrictions communicated to you in the future by us. You may terminate this license at any time by destroying the Splitit Software together with all copies and merged portions in any form. This EULA will also terminate immediately if you fail to comply with any term or condition of this EULA, the Merchant Agreement, file for bankruptcy, or are placed in receivership. Upon such termination, you agree to destroy the Splitit Software, together with all copies thereof. You agree not to be entitled to a refund of any applicable fees upon early termination of this EULA.
6. GOVERNING LAW; ARBITRATION
6.1 Governing Law.
This EULA and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of New York, without reference or giving effect to its conflicts of law principles, or any other conflicts of law principles under the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), the application of which is expressly excluded. All claims shall be resolved on an individual basis without resort to any form of class action and not consolidated with the claims of any other parties. Merchant hereby irrevocably consents to the personal jurisdiction of and venue in the state and federal courts located in New York County, in the State of New York, with respect to any action, claim or proceeding arising out of or related to this Merchant Agreement and expressly agrees to the exclusive jurisdiction of such courts and that Merchant will not commence or prosecute any such action, claim or proceeding other than in such courts, except as otherwise provided herein. MERCHANT WAIVES TRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF OR RELATING TO THIS MERCHANT AGREEMENT.
Any dispute or claim arising out of or relating to this Merchant Agreement, except claims involving intellectual property and claims for indemnification, will be resolved by binding arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) rules, as modified by this Merchant Agreement, and will take place in New York, New York. This Merchant Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. An arbitrator may not award relief in excess of or contrary to what this Merchant Agreement provides or order consolidation or arbitration on a class wide or representative basis, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither Party may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. All administrative fees and expenses will be divided equally between the Parties, but each Party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration. IF FOR ANY REASON THIS ARBITRATION CLAUSE IS DEEMED INAPPLICABLE OR INVALID, THE PARTIES WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. No action, regardless of form, arising out of or in conjunction with the subject matter of this Merchant Agreement, except for claims involving intellectual property and claims for indemnification, may be brought by either Party more than one (1) year after the cause of action arose.
6.3 Attorney’s Fees.
Should it be necessary for Splitit to defend or enforce any of its rights under this EULA in any collection or legal action, Merchant agrees to reimburse Splitit, as applicable, for all costs and expenses, including reasonable attorney’s fees, as a result of such collection or legal action. Without limiting the generality of the foregoing, Merchant agrees to reimburse Splitit, as applicable, for all costs and expenses, including reasonable attorney’s fees, incurred by Splitit in enforcing or defending its rights under this EULA, without regard to whether there has been an adjudication on the merits in any such action.
7. NO WARRANTIES
THE SPLITIT SOFTWARE IS PROVIDED TO YOU ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER, AGENT, OR EMPLOYEE OF SPLITIT IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.
SPLITIT MAKES NO WARRANTY THAT THE SPLITIT SOFTWARE WILL BE CONTINUOUS OR ERROR-FREE. Merchant understands and agrees that due to the protracted repayment period and the risk of chargebacks, the Splitit installment processing solution is less secure than a traditional transaction. Fraud prevention is Merchant’s sole responsibility, and Splitit is not responsible for any non-valid or fraudulent Transactions that are processed through the Splitit Software.
8. LIMITATION OF REMEDIES
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL SPLITIT, OR ITS SUPPLIERS OR RESELLERS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTIONS, WORK STOPPAGE, PERSONAL INJURY, PHYSICAL OR EMOTIONAL IMPAIRMENT, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE PROGRAMS (WHETHER OR NOT DUE TO ANY DEFECTS THEREIN) OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF SPLITIT SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS BY THIRD PARTIES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL SPLITIT, OR ITS SUPPLIERS OR RESELLERS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY AMOUNTS IN EXCESS OF THE AMOUNT OF THE LICENSE FEE PAID BY YOU FOR THE LICENSE GRANTED UNDER THIS AGREEMENT. OUR TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO THE SPLITIT SOFTWARE AND ASSOCIATED SERVICES, SHALL NOT EXCEED THE AGGREGATE FEES RECEIVED BY US FOR PROVIDING YOU WITH SUCH SOFTWARE AND SERVICES DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
You agree to defend, indemnify and hold Splitit, its affiliates, officers, directors and employees, agents, contractors harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of your breach of this EULA and/or your use of the Splitit Software or the Splitit Services accessed through the Splitit Software. If you are an agency or instrumentality of a state of the United States and are precluded by the law of your state or the United States, as applicable, from entering into indemnification obligations, then the obligations under Sections shall apply only to the extent permitted by such law.
If any provision of this EULA or portion thereof is held to be unenforceable, such a determination will not affect the remainder of this EULA. Paragraph headings are included for convenience only and are not to be used in interpreting this EULA
11. ENTIRE AGREEMENT
This EULA sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this EULA.
12. DATA USAGE; DATA SECURITY;
12.1 Data Security.
Merchant agrees that it will use any personal, financial, Card, or Transaction information (“Card Data”) obtained from a cardholder in connection with a card Transaction solely for the purpose of processing a Transaction with that cardholder or attempting to re-present a chargeback with respect to a Transaction. Merchant agrees to comply will all applicable and then-current legal obligations and security measures of any nation, state, or governmental authority having jurisdiction over Merchant, including without limitation, those issued by the United States, any state and/or municipal authority, Card Association, the United States Federal Trade Commission, PCI DSS and any other applicable governing body in connection with your collection, security and dissemination of any Card Data on your website. Merchant is fully responsible for the security of data on its website or otherwise in its possession or control.
12.2. PCI Compliance.
You expressly agree that at all times during your use of the Splitit Software you shall be compliant with the Payment Card Industry Data Security Standards (PCI DSS) and the Payment Application Data Security Standards (PA DSS), as applicable. You agree to promptly provide us with documentation evidencing your compliance with PCI DSS and/or PA DSS if requested by us. You also agree that you will use only PCI compliant service providers in connection with your use of the Splitit Software, including related to the storage, or transmission of Card Data defined as a cardholder’s account number, expiration date, and CVV2. You must not store CVV2 data at any time.
12.3. Data Storage.
Unless you receive the express consent of your customer, you may not use the Splitit Software to retain, track, monitor, store or otherwise use Card Data beyond the scope of the Transaction. Further, unless you receive the written consent of each Acquiring Bank and/or the Card Companies, as applicable, you agree that you will not use nor disclose the Card Data for any purpose other than to support payment for your goods and services. Card Data must be completely removed from your systems, and any other place where you store Card Data, within 24 hours after you receive an authorization decision unless you have received the written consent of your customer to retain the Card Data for the sole purpose of processing recurring payments. To the extent that Card Data resides on your systems and other storage locations, it should do so only for the express purpose of processing your Transactions. All Card Data and other information provided to you by Splitit in relationship to the Splitit Services and all Card Data will remain the property of Splitit, its Acquiring Bank or the Card Companies, as appropriate.
12.4. Password Security.
Splitit will issue to Merchant, or permit you to use, a user name and password to enable you and/or your employees and agents to access your Splitit Account and to use the Splitit Software. You agree to restrict use and access to your password and log-on ID to your authorized employees and agents as may be reasonably necessary and will ensure that each such employee or agent is aware of and complies with the terms of this EULAt. You will not give, transfer, assign, sell, resell or otherwise dispose of the information and materials provided to you to utilize the Splitit Software. You are solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes that are issued to you by Splitit, each Acquiring Bank or the Card Network. Upon Splitit’s request, you shall provide Splitit with all available information regarding such authorized employees and agents. You shall cooperate in any inquiry regarding such authorized employees and agents.
If Splitit believes that a security breach or compromise of Card Data has occurred, Splitit may require you to engage, at your expense, a third party auditor selected by Splitit to conduct a security audit of your systems and facilities and issue a report to be provided to Splitit, the Acquiring Banks and the Card Companies. In the event that you fail to initiate an audit within ten (10) days of Splitit’s request, Splitit may conduct or obtain such an audit at your expense, and you will fully cooperate with and provide prompt access to Splitit or its designee.
By downloading, installing or using any part of this Splitit Software, you indicate that you have read this Agreement, understand it, and agree to be bound by its terms and conditions.