EPOS Terms and Conditions
Gateway Merchant Services Limited trading as Paymenplus
Terms and Conditions (the “Terms”) relating to the licence of EPOS Software by customer for use on Android devices and to the provision of EPOS Software support services (the “Support Services”).
Content
1. Licence Terms
2. Maintenance, Training and Installation Services
3. Support Services
4. Warranties and Indemnities
5. Obligations of Customer
6. Termination of Licence and Support
7. Exclusion and Limitation of Liability
8. Confidential Information
9. Force Majeure
10. General
1. Licence Terms
1.1 PaymentPlus hereby grants Customer a non-exclusive, non-transferable licence to use the EPOS Software for Customer’s internal business purposes only on the Payment Terminal (or Epos device) provided under a Card Payment Services Agreement (“the Agreement”) or such other device authorised by us.
1.2 Customer will not copy or operate any instance of the EPOS Software for the purposes of providing the benefits of the functionality of the Software to any person other than itself or to a related body corporate.
1.3 Customer may not copy any Customer documentation without PaymentPlus express written consent.
1.4 PaymentPlus or its partners or licensors retain all rights, title and interest in the EPOS Software and in all improvements, enhancements, modifications and derivative works of the EPOS Software including, without limitation, all rights to patent, copyright, trade secret and trade mark. The EPOS Software may include software licensed from a third party. These Terms are intended to benefit such third parties, who may directly enforce applicable terms of these Terms to protect their interest in such software.
1.5 Customer does not have the right to, and Customer will not, decompile, reverse engineer, disassemble, modify, create derivative works or attempt to derive source code from the EPOS Software.
1.6 The licence hereby granted will continue during the term of the Agreement and will terminate on termination of that Agreement for whatever reason.
2. Maintenance, Training and Installation Services
2.1 These Terms do not include any installation, configuration, implementation or other consulting services from PaymentPlus. All such services will be subject to a separate agreement.
2.2 Where PaymentPlus agrees to provide any such additional services, and regardless of the form of such agreement, and whether oral or in writing of any kind, these Terms will apply to such services as if they were Support Services expressly provided for herein.
3. Support Services
3.1 PaymentPlus will provide the Support Services from the agreed date for commencement and for the duration of the Agreement subject to complete and timely payment of the fees set out inthe Agreement. For the purposes of these Terms, Support Services means the provision of the following services, between the hours of 9.00 am and 5.00 pm ROI time on business days:
(a) delivery of updated versions and enhancements (if any) of the EPOS Software as made available by PaymentPlus generally from time to time during the term of the Agreement. “Updated versions and enhancements” shall not include new products with significant added functionality, even if such new products incorporate the whole or part of any of the EPOS Software.
(b) where necessary providing release notes regarding the nature of the changes made by any update or enhancement and, where necessary, an installation guide.
(c) the provision of email support to assist a Customer in dealing with any problems in Customer’s use of the EPOS Software.
(d) the investigation and, to the extent possible, correction of any failure of the EPOS Software to operate as intended, by amendment to the EPOS Software, amendment to the documentation or instructions, bypassing the fault or problem or the provision of new or amended operating procedures, if and only if:
(i) any failure is demonstrable by Customer at the installation site of the EPOS Software;
(ii) notice is given to PaymentPlus promptly after any such failure becomes known; and
(iii) the EPOS Software has been properly operated and, subject to section 3.4 below,
kept up to date, and not modified by Customer.
The Support Services shall not include the correction, alteration or recovery of any Customer data, repair or adjustment to any equipment or the provision of any consumables, including paper, or disk or tape media.
3.2 Nothing in these Terms shall be understood to oblige PaymentPlus to attend any installation site of the EPOS Software.
3.3 In the event that the Software has been modified or adapted by Customer, or errors are determined to have arisen by reason of Customer errors, misuse of the Software or failure to comply with PaymentPlus operating instructions, or abuse or neglect on the part of any person other than a PaymentPlus employee or agent, PaymentPlus will use reasonable commercial efforts to maintain the Software, including the said modifications or adaptations and errors. PaymentPlus will be entitled to charge Customer, at its then current standard rates for such service, for time spent investigating or correcting any problem with the Software which is attributable to the said modifications, adaptations or errors. As soon as PaymentPlus forms the view that it shall be entitled to charge Customer for services provided pursuant to this section 3.3, PaymentPlus shall inform Customer of that view. No further services relating to the matters notified will be provided by PaymentPlus without the express authorisation of Customer.
3.4 In the event that Customer fails to implement any updated version of the Software provided by PaymentPlus pursuant to section 3.1(a), and PaymentPlus subsequently offers to its clients or any of them a further updated version of the Software then PaymentPlus shall be entitled, unless it has agreed in writing to the contrary, cease to provide maintenance for the version of the Software then used by Customer by the giving of twenty-one (21) days’ notice at any time.
4. Warranties and Indemnities
4.1 PaymentPlus warrants that its services will be of a professional quality conforming to generally accepted industry standards during the provision and for a period of thirty (30) days from completion of the services.
4.2 For services not performed as warranted in section 4.1, PaymentPlus will, at its discretion, perform the services again. This is customer’s exclusive remedy and PaymentPlus’ sole liability arising in connection with the warranties in respect of the maintenance services under this section 4.
4.3 PaymentPlus agrees, at its expense, to either defend or settle any claim against Customer that the EPOS Software infringes a patent, copyright or trademark, if Customer provides PaymentPlus with: (i) written notice within thirty (30) days of the claim; (ii) authority, assistance and information to perform its duties under this Section; and (iii) sole control of the defence. PaymentPlus does not assume liability for infringement claims arising from modification of the EPOS Software and/or damages or other liability arising from any claim brought against PaymentPlus by persons or entities as a result of Customer’s negligent use of the EPOS Software.
4.4 Section 4.3 states Customer’s exclusive remedy and PaymentPlus’ sole liability, regarding infringement of any intellectual property rights of a third party.
5. Obligations of Customer
5.1 Customer will provide all necessary assistance, including on-site access, as may reasonably be required by PaymentPlus to rectify any malfunction.
5.2 Customer shall maintain and record at each location of the EPOS Software such operating information and usage records in relation to the EPOS Software as may be reasonably requested by PaymentPlus from time to time.
5.3 Customer shall promptly notify PaymentPlus of any malfunctions in the Software.
5.4 Customer will operate the Software in accordance with PaymentPlus operating instructions and operator’s maintenance and diagnostic routines, if any, provided by PaymentPlus.
5.5 Except for the operator’s maintenance routines specified in section 5.4 above, Customer will not allow any person other than PaymentPlus authorised personnel to modify the Software.
5.6 Customer shall comply with all reasonable directions of PaymentPlus from time to time concerning appropriate equipment configuration and communications, network and operating system environment required by the Software.
6. Termination of Licence and Support
6.1 Customer acknowledges that this is a licence for the term of the Agreement only.
6.2 In the event of a breach of these Terms, PaymentPlus may give Customer not less than thirty (30) days’ notice in writing to Customer specifying such breach and requiring its correction within such period. If Customer fails to correct any such breach, the licence hereby granted will thereupon terminate without further notice.
6.3 In addition to the foregoing, in the event of breach of these Terms by Customer, and whether PaymentPlus exercises any right of termination or not, PaymentPlus will have the right to suspend the provision of the EPOS Software Licence and Support Services until such time as such breach is remedied to the satisfaction of PaymentPlus and/or pursue any other remedies existing at law or in equity.
6.4 In the event of expiry or termination of the Agreement, or expiry or termination of any of the licences hereby granted, for any reason:
(a) PaymentPlus will not supply the usage numbers required for the continued operation of the EPOS Software, and Customer acknowledges that, without such numbers, the EPOS Software will stop functioning;
(b) Customer will forthwith cease all use of the EPOS Software and delete all instances of the EPOS Software (including backup and archival copies) unless and to the extent otherwise expressly and in writing agreed by PaymentPlus; and
(c) PaymentPlus shall not be liable to pay any refund or rebate of the License and Support Fees already paid by Customer.
7. Exclusion and Limitation of Liability
7.1 Customer acknowledges by entry into these Terms that no promise, representation, warranty or undertaking has been made or given by PaymentPlus or any person on its or their behalf in relation to the capacity, uses or benefits to be derived from, or any other consequences of or benefits to be obtained from the EPOS Software or the Support Services or any other services or goods provided under these Terms, except as expressly set out in these Terms, and that Customer has relied on its own skill and judgement in deciding to licence the EPOS Software and purchase the Support Services.
7.2 All conditions and warranties which would or might otherwise be implied in these Terms, whether by operation of statute, inference from circumstances, industry practice or otherwise, are hereby excluded.
7.3 PaymentPlus cannot accept any responsibility in the event that any of Customer’s data is lost or corrupted or erased for any reason. Customer accepts that it must maintain backup data in order to avoid any loss or damage arising from such corruption or loss.
7.4 Subject to section 4.3 PaymentPlus will not be liable to Customer under any circumstances:
(a) in respect of any loss or damage suffered by Customer in the nature of loss of profit or damage to goodwill, loss of profit or loss of the value of any other opportunity or expectation benefit;
(b) in respect of any liability of Customer to any third party.
7.5 PaymentPlus will not be liable in relation to any proceeding or claim which:
(a) was caused by any act or omission of Customer or its employees or agents; or
(b) relates to actions of PaymentPlus which were expressly or impliedly authorised by Customer,
or by Customer’s employees or agents.
8. Confidential Information
8.1 Each party has given and, during the period of these Terms, will continue to give to the other
party certain technical and commercial information. Each party undertakes:
(a) to keep confidential all such information as is not freely available to the public including, without limiting the generality thereof, all information in relation to PaymentPlus prices, business plans, policies, present and future products, customers and related documentation and such information as a party may from time to time specifically designate as confidential (“the Confidential Information”);
(b) to return to the party which disclosed the Confidential Information on demand in writing therefore all written or machine-readable material embodying such technical and commercial information and all copies thereof in the possession of the party receiving the demand, except such materials stored on valuable media, which shall be destroyed or erased and such destruction or erasure certified within seven (7) days of the date thereof;
(c) to limit access to the Confidential Information to only those employees, agents or advisers who reasonably require access in order for the recipient of the Confidential Information to perform its obligations under these Terms;
(d) to ensure that each temporary employee or contractor nominated by it, and each employee of the recipient of the Confidential Information requiring access to any Confidential Information makes an undertaking in writing not to access, use, disclose or retain Confidential Information except in performing their duties of employment and is informed that failure to comply with this undertaking may lead the recipient of the Confidential Information to take disciplinary action against the employee;
(e) to take all further reasonable measures to ensure that any Confidential Information held or obtained by it is protected against loss, unauthorised access, use, modification, disclosure or other misuse and that only authorised personnel have access to the Confidential Information; and
(f) to notify immediately the other party where the party the subject of this duty of confidentiality becomes aware of a breach of this section 8.
8.2 The parties agree that this section 8 survives the termination of the Agreement and/or these Terms.
9. Force Majeure
PaymentPlus shall not be liable in any circumstances whatsoever for any failure whatsoever to perform any obligations to be performed by PaymentPlus hereunder where such failure is due to any cause beyond the reasonable control of PaymentPlus, provided that as soon thereafter as such cause has abated, PaymentPlus shall use best efforts to resume performance of the obligation hereunder frustrated thereby.
10. General
10. 1 These Terms govern the agreement and understanding between the parties in relation to the licence of the EPOS Software, in respect of the Support Services and any other services to be supplied under these Terms.
10.2 PaymentPlus may, at any time, perform any of its obligations under these Terms by the use of sub-contractors, but shall remain responsible for the performance of such subcontractors except and to the extent Customer engages any such subcontractor for the provision of any goods or services. In addition, PaymentPlus may assign the benefit of these Terms to any related body corporate.
10.3 These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Irish law. The parties irrevocably agree that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims).