Verifone and the Customer mutually agree that the below contains certain terms and conditions that shall apply to call Recipient Agreement.
The Customer’s services Products and Software provided and technology owned and/or provided by Verifone (“the Verifone Technology”).
Verifone are not contracting with the Recipient to supply them with any technology or services as they are supplying for them for the benefit of the Customer who in turn are making them available to the Recipient as part of the Customer’s services. The Recipient agrees that Verifone shall not be liable to the Recipient in relation to the Verifone Technology or the Customer’s services. The Recipient agrees that they shall not seek to deal with Verifone in relation to the performance of the Customer’s services (which shall include the Verifone Technology) and the Recipient agrees that all such matters shall be dealt with directly with the Customer as the provider of such Customer’s services.
The Recipient shall comply with the following obligations in relation to the Customer’s services (which shall include the Verifone Technology):
if the Customer’s services include PEDs, the Recipient shall not itself adjust, repair or maintain any PEDs (if supplied) and shall not request, permit or authorise anyone other than Verifone to carry out any adjustments, repairs or maintenance of the PEDs;
provide to the Customer and Verifone, in a timely manner, such information and assistance as they may require and ensure that it is accurate in all material respects;
ensure that only competent trained employees (or persons under their supervision) are allowed to operate or use the Verifone Technology 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 Technology in general;
not use in conjunction with the Verifone Technology any software accessory, attachment or additional equipment other than that which has been supplied by or approved in writing by Verifone or the Customer;
only use the Verifone Technology for the purpose for which it is provided;
not use the Verifone Technology for any illegal or fraudulent purpose;
comply, at all times and in relation to all of their activities using the Verifone Technology, with all applicable laws, export controls, regulations, rules and obligations regarding such activities, all rules imposed by the Recipient’s acquiring bank, all rules imposed by any other relevant bank or third party from time to time;
not resell, lease, hire or otherwise make available the Verifone Technology or any part of it to any third party or in any way use it on behalf of any third party. The Recipient shall not reverse engineer, decompile, disassemble, translate, modify, alter, create any derivative works based upon, or change the Software or any part thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Software or any part thereof, without the prior express written consent of Verifone. The Recipient shall not remove from the Product or the Software, or alter, any of trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Verifone Terminals or the Software, without the prior express written consent of Verifone;
inform the Customer immediately if it becomes aware of any breach by the Recipient or any third party of any of the terms of these Pass Through Terms;
the Recipient shall procure that all obligations set out in this Section 3 are placed upon any other third parties who use the Verifone Technology on their behalf or otherwise. Any action carried out by any other third party in relation to the Verifone Technology shall be deemed, for the purpose of these Pass Through Terms, to have been carried out by the Recipient;
the Recipient will undergo such training as the Customer requires in relation to the Customer’s services;
the Recipient must have full authorisation from their acquiring bank to process transactions using the Verifone Technology.
All Intellectual Property Rights that exist in relation to the Verifone Technology (other than the PEDs if applicable) belong to Verifone or their licensors (and in the case of the PEDs such rights belong to the manufacturer of such PEDs and their licensors). Nothing in these Pass Through Terms assigns such Intellectual Property Rights to the Customer or the Recipients and the only right the Recipients have in relation to such Intellectual Property Rights, is the right to use them in accordance with the terms of these Pass Through Terms. The Recipient agrees Verifone have the right to enforce this provision against the Recipient and that the Recipient shall be liable to Verifone in relation to any breach of it.
The Recipient shall immediately inform the Customer or Verifone if it becomes aware of any circumstances where the Verifone Technology (or any part of it) infringes the Intellectual Property Rights of any third party or where any third party infringes (or may infringe) any of the Intellectual Property Rights that exist in the Verifone Technology.
The Recipient agrees to use the Software strictly in accordance with the software licence provisions set forth in Exhibit A. The Recipient agrees Verifone have the right to enforce this provision against the Recipient and that the Recipient shall be liable to Verifone in relation to any breach of it.
VERIFONE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. VERIFONE DOES NOT WARRANT THAT ANY VERIFONE TERMINAL OR SOFTWARE WILL MEET THE REQUIREMENTS OF THE RECIPIENT. RECIPIENT ACKNOWLEDGES THAT UNDER NO CIRCUMSTANCES DOES VERIFONE REPRESENT OR WARRANT THAT ALL PROGRAM ERRORS IN ANY SOFTWARE CAN BE REMEDIED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT: (A) VERIFONE’S AGGREGATE LIABILITY IN CONNECTION WITH THIS 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 UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE LIABILITY AROSE; AND (B) VERIFONE SHALL NOT BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
VERIFONE SHALL BE A THIRD PARTY BENEFICIARY OF THE RECIPIENT AGREEMENT.