The activation by you (the business accepting payments through this Device) represents your agreement to the Clover Terms of Service which incorporates the Clover App Market Terms and the Clover Terms of Service
CLOVER APP MARKET TERMS
Last updated 27 April 2015
These Clover App Market Terms are supplemental to, and should be read in conjunction with, the Clover Terms of Service which can be found at https://www.eu.clover.com/terms.
All capitalised terms used in these Clover App Market Terms have the same meanings as set out in the Clover Terms of Service or as set out in clause 6 below.
1. THE APP MARKET
1.1 The App Market acts as a venue to allow the Merchant to browse, locate, subscribe to, install, download, access and uninstall Applications. The Merchant agrees that Clover is not responsible and does not have any liability for (i) any Applications in the App Market other than those for which Clover is the Developer and (ii) any processing of Third Party Personal Data and/or Merchant Personal Data by Developers.
1.2 The Merchant shall not reverse look-up, trace or seek to trace any information on any other user of or visitor to the App Market, or any other customer of Clover, to its source, or exploit the App Market or any service or information made available or offered by or through the App Market, in any way where the purpose is to reveal any information, including personal identification or information, other than the Merchant's own information, as provided for by the App Market.
1.3 Clover reserves the right without liability to the Merchant:
(a) to remove any Application from the App Market and from Merchant's Clover Device;
(b) to impose limits on the use of or access to certain features or portions of the App Market from time to time; and
(c) to change, suspend, remove, or disable the Merchant's access to the App Market or any part thereof at any time without notice.
2.1 If the Merchant subscribes to, installs or downloads an Application from the App Market, an App Agreement is created between the Merchant and the applicable Developer for the use of that Application when the Merchant clicks the button to accept and install the App. The App Agreement incorporates the App Terms which govern the Merchant's use of the Application.
2.2 Unless Clover is the Developer of a particular Application, (a) Clover is not a party to the App Agreement; (b) Clover does not own or grant a licence to use the Application; and (c) Clover does not provide the Application.
2.3 The Merchant uses the Applications at its own risk. All information on the App Market regarding the Applications is provided in good faith, solely for the Merchant's convenience and does not constitute an introduction, endorsement or recommendation by Clover. Accordingly, Clover does not make any representations, does not endorse or guarantee, and does not accept any responsibility or liability for, the quality, safety, availability, morality or legality of any aspect of the Applications, the truth or accuracy of the Applications, the qualifications, background, or identities of the Developers, and/or the ability of the Developers to distribute, support and maintain the Applications.
2.4 Except as expressly set out in the Contract and subject always to applicable law, all sales are final, and no returns, replacements or refunds are permitted. If a replacement, return or refund is granted for any sale, the transaction may be reversed, and the Merchant may no longer be able to access the Application that the Merchant subscribed to, installed or downloaded.
2.5 After the Merchant has subscribed to, installed or downloaded an Application the Merchant should check it as soon as reasonably possible to ensure that it performs as stated, and notify the Developer as soon as reasonably possible if the Merchant finds any errors or defects. Clover has required each Developer to put in place a refund policy to the Merchant at least as favourable as the following: the Merchant will be entitled to a refund of the full purchase price of an Application if the Merchant notifies the Developer within forty-eight (48) hours of the Merchant's subscription, installation or download of the Application and either: (a) the Application does not function properly; or (b) the Application cannot be previewed by the Merchant before it subscribes to, installs or downloads it and the value of the Application cannot be substantially consumed or used within forty-eight (48) hours after such subscription, installation or download. If a refund is issued to the Merchant for any reason, the Developer will have the right to restrict the Merchant from accessing the relevant Application.
2.6 The Merchant may be entitled to subscribe to, install or download some Applications free of charge. Clause 2.5 does not apply to such free Applications. A Developer may in its sole discretion impose limitations on the Merchant's access and use of certain free Applications. The Merchant should refer to the relevant App Terms for details of such limitations.
2.7 The Merchant may be entitled to subscribe to a free trial for some Applications for a specified duration. At the end of the trial period, the Merchant will be charged the price of the subscription and will continue to be charged until the Merchant cancels its subscription. To avoid any charges, the Merchant must cancel before the end of the trial period. The Developer may in its sole discretion impose limitations on the Merchant's access and use of trial Applications. The Merchant should refer to the relevant App Terms for details of such limitations.
2.8 The Merchant shall not remove any watermarks, labels or other legal or proprietary notices included in any Application, and the Merchant shall not attempt to modify any Application obtained through the App Market, including any modification for the purpose of disguising or changing any indications of the ownership or source of any Application.
2.9 If the Merchant commits a material breach of an App Agreement, the Merchant's right to use the applicable Application may be terminated by the Developer in accordance with the App Agreement. The Merchant will not be entitled to a refund from the Developer or Clover in such circumstances.
3.1 If the Merchant purchases a subscription for an Application, the Merchant will be charged at the rate applicable to the Application at the time of the Merchant's subscription. If the Developer later changes the price of the subscription that the Merchant has already subscribed to, the Developer will notify the Merchant about the amount and timing of the price change.
3.2 If the Merchant does not wish to pay the revised price for a subscription to an Application, the Merchant may cancel the subscription and the Merchant will not be charged further amounts for the subscription, provided the Merchant has notified the Developer before the end of the current billing period. In some cases where the Developer increases the price of a subscription the Developer may cancel the Merchant's subscription unless the Merchant agrees to re-subscribe at the new price. If the Merchant's subscription is cancelled and the Merchant later decides to re-subscribe, the Merchant will be charged for such new subscription at the then-current subscription rate.
4. FEES AND PAYMENT ARRANGEMENTS FOR THE APPLICATIONS; TAXES
4.1 Pricing for Applications is subject to change at any time before the Merchant completes its subscription, installation or download of an Application.
4.2 The Merchant is solely responsible for the payment of all fees and taxes (in each case, if any) for any Application that the Merchant subscribes to, installs or downloads from the App Market. When the Merchant subscribes to, installs or downloads an Application, the Merchant authorises Clover to charge the Merchant using Clover's choice of the Merchant's available payment methods as specified in the Registered Account for all fees and taxes payable for such Application from time to time, and as and when such payments are due in accordance with the App Agreement for such Application.
4.3 The Merchant acknowledges that in respect of each Application, Clover acts as the Developer's agent in collecting the fees and taxes from the Merchant. Payment by the Merchant to Clover of the fees and taxes payable in respect of any Application constitutes full and final settlement of such amounts by the Merchant to the Developer.
4.4 If the Merchant wishes to obtain a refund of the fees paid for any Application, it must request such refund directly from the Developer. If the Developer determines in its sole discretion to grant a refund, the Developer will provide such refund directly to the Merchant.
4.5 Clover and the Developer will charge the Merchant any applicable Taxes that Clover and the Developer are legally obligated to charge and retrospectively if necessary. The amount actually received by Clover and the Developer, net of such applicable Taxes, interest and/or penalties, shall not be less than the amount that Clover and the Developer would have received, had the same not been applicable.
4.6 Each party will have the right to challenge the imposition of Taxes for which it is obligated to pay under the Contract or, if necessary, to request the other party to challenge the imposition of such Taxes. If any party requests that the other party challenge the imposition of any Taxes, such request will not be unreasonably denied, provided that the requesting party will be responsible for all fines, penalties, interest, additions to taxes or similar liabilities imposed by such taxing authority in connection therewith, plus any legal fees and other expenses related to such challenge.
4.7 The Merchant will maintain the right to deduct or withhold any Taxes from any amounts payable, as required by law, to Clover and Developer under the Contract. Payment to Clover and the Developer, as reduced by such deductions or withholdings, will constitute full payment and settlement of such amounts payable.
4.8 If the Merchant is required to deduct or withhold any Taxes or other charges imposed by any taxing jurisdiction from any amounts payable to Clover and the Developer under the Contract, the Merchant shall promptly upon becoming aware of such tax payments inform Clover and the Developer accordingly. Within ninety (90) days after the date upon which the payment hereunder was due, the Merchant shall supply to Clover and the Developer the original receipt, duplicate original, or a duly certified or authenticated copy of such original receipt evidencing tax payments deducted.
4.9 The Merchant shall cooperate with Clover and the Developer in completing any formal procedures necessary including the provision of exemption certificate acceptable to the relevant taxing authority for Clover and the Developer to recover the taxes or obtain relief or tax credits in respect of the deductions.
5. CHANGES TO THESE CLOVER APP MARKET TERMS
5.1 Clover reserves the right to make changes to these Clover App Market Terms at any time by publishing a revised version of these Clover App Market Terms on the Website. The revised version of the Clover App Market Terms will take effect from the time at which it is first published. The Merchant will be subject to the Clover App Market Terms in force at the time that the Merchant uses the Services. The Merchant's continued use of the Services indicates its acceptance of such updates and changes. The Merchant is advised to check the Clover App Market Terms from time to time for any updates or changes that may affect the Merchant. Clover last modified these Clover App Market Terms on the date stated at the beginning of these Clover App Market Terms.
6.1 In these Clover App Market Terms the following terms shall have the same meanings as set out in the Clover Terms of Service unless otherwise defined below:
"Contract" means the contract created between the Merchant and Clover on the date on which Clover notifies the Merchant by email that the Registered Account has been created, and such contract incorporates the Application Form, and the Terms of Service as supplemented by these Clover App Market Terms, each of which may be amended from time to time, and any other documents incorporated by reference;
"Services" means (i) the functionality provided by Clover which is accessed by the Clover Applications which are pre-installed on and accessible via the Devices; (ii) storage of data which is generated from transactions and/or input by the Merchant onto the Website and/or the Devices; (iii) the capture, management and transmission of data for merchant acquiring services; (iv) integration with merchant acquiring services; (v) the ability to perform split- tender transactions; and – as supplemented by these Clover App Market Terms – (vi) the access to and use of the App Market to browse, locate, subscribe to, install, download, access and uninstall Apps;
"Taxes" means applicable sales or use, value added taxes or any other transaction taxes arising from use of the App Market.
6.2 In interpreting the Contract (unless the context requires otherwise) any reference to any statute or statutory provision including any subordinate legislation includes a reference to that statute or statutory provision as from time to time amended, extended, re-enacted and/or replaced.
6.3 If there is any inconsistency or conflict between the various components of the Contract, the Terms of Service shall prevail to the extent of such inconsistency or conflict, unless expressly stated to the contrary.
CLOVER TERMS OF SERVICE
Last updated 27 April 2015
All capitalised terms used in these Terms of Service have the meanings set out in clause 16.
1. USE OF THE SERVICES
1.1 The Merchant may access the Services via a Device using a wired (Ethernet) or wireless (Wi-Fi or cellular) connection to the Internet. Certain components of the Services may also be accessed via the Website or Third Party Applications.
1.2 Use of the Services is at the risk of the Merchant. To the maximum extent permitted by Applicable Laws, the Services are provided "as is". Except as set out in the Contract, Clover makes no representations or warranties of any kind (express or implied) with regard to the Services, including warranties of accuracy, merchantability, fitness for a particular purpose or non-infringement, or that the Services will function uninterrupted or error-free, or that the Services are secure, free of viruses or other harmful components or that any defects or errors will be corrected.
1.3 Clover may perform maintenance on the Services from time to time which may result in service interruptions, delays or errors. Clover will not be liable for any such interruptions, delays or errors. The Merchant agrees that Clover may contact the Merchant in order to assist the Merchant with the Services and to obtain information needed to identify and fix any errors.
1.4 Clover is constantly innovating in order to provide the best possible experience for its users. The Merchant acknowledges and agrees that the form and nature of the Services which Clover provides may change from time to time without prior notice to the Merchant provided that the Services (including the processing of Third Party Personal Data by Clover) remain in compliance with clause 10. As part of this continuing innovation, the Merchant acknowledges and agrees that Clover may at its sole discretion, and without prior notice to the Merchant, stop (permanently or temporarily) providing the Services (or any features within the Services) to the Merchant and the Users.
1.5 If the merchant acquirer permits the Merchant to conduct point of sale activities when the Services are offline, the transactions will be queued and submitted for authorisation when Internet connectivity to the Services is restored. The Merchant assumes all risk, responsibility and liability associated with any such transactions.
1.6 The Services may automatically download and install updates from time to time, which are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. The Merchant agrees to receive such updates (and to permit Clover to deliver these to the Merchant) as part of the Merchant's use of the Services. Clover will install critical and non-critical software updates automatically on any and all of the Devices unless the Merchant indicates at the time of an attempted non-critical software installation that it wishes to delay such non-critical software update. If the Merchant delays such update, Clover will re-attempt an update installation automatically at a later time.
2. PROHIBITED ACTIVITIES
2.1 The Merchant shall not access or use the Services in any manner or for any purpose other than as expressly permitted by the Contract.
2.2 The Merchant shall not, and shall not permit any third party, to:
(a) access or attempt to access the Services and the Devices (or any part) or any related systems or networks that are not intended or made available for public use, or access and/or engage in any use of the Services and the Devices for fraudulent or illegal purposes;
(b) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover by any means any source code, underlying ideas or algorithms in connection with any aspect of the Services and the Devices (or any part), except to the extent permitted by law;
(c) probe, scan or test the vulnerability of the Services and the Devices or any related systems or networks, or breach the security or authentication measure of the Services and the Devices or any network or systems connected to the Services and the Devices;
(d) circumvent, disable or defeat any of the security features or components (such as digital rights management software or encryption) that protect the Services and the Devices;
(e) directly or indirectly copy the Services (or any part) except for backup and archival purposes, or modify, translate, or alter in any manner, the Services (or any part), or create derivative works based on the Services (or any part);
(f) create Internet ‘links' to the Services or ‘frame' or ‘mirror' any part of the Services, other than on the Merchant's own intranets or otherwise for its own internal business purposes;
(g) republish, upload, post, transmit, disclose, or distribute (in any format) the Services (or any part) except as permitted herein;
(h) access or use (in any format) the Services (or any part) through any time-sharing service, service bureau, network, consortium, or other means;
(i) rent, lease, sell, sublicense, assign, or otherwise transfer the Merchant's license rights to any third party, whether by operation of law or otherwise;
(j) remove, relocate, or otherwise alter any proprietary rights notices from the Services and the Devices (or any part);
(k) perform or attempt to perform any actions that would interfere with the proper working of the Services and/or the Devices, prevent access to or use of the Services by other users, or in Clover's reasonable judgment impose an unreasonable or disproportionately large load on the infrastructure, network capability or bandwidth; or
(l) build a competitive product or service or a product or services using similar ideas, features, functions or graphics of the Services and/or the Devices; or copy any ideas, features, functions or graphics of the Services and/or the Devices.
2.3 The Merchant shall not upload to, transmit through or otherwise post or share through the Services any content which is:
(a) deemed harassing, threatening, indecent, obscene, pornographic, libellous, defamatory or otherwise objectionable, unlawful or tortious, harmful to children, or which violates third party privacy rights; or
(b) an infringement of the Intellectual Property Rights of a third party.
2.4 The Merchant shall not send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, or send spam or otherwise duplicative or unsolicited messages in violation of any Applicable Laws.
3. MERCHANT RESPONSIBILITIES
3.1 The Merchant shall only use the Services and Devices for commercial purposes and will not use the Services and Devices for any household or personal purposes.
3.2 The Merchant is responsible for:
(a) using and accessing the Services, and performing its obligations under the Contract, in accordance with the Contract, the Clover Ops Guide and all Applicable Laws;
(b) the compliance by the Users with the obligations of the Merchant under the Contract; and
(c) ensuring that there are all necessary power and Internet connections and all communications infrastructure on its premises for the proper working of the Devices, and for the payment of any fees that may be imposed by the providers of such services; and the Merchant acknowledges that its use of the Services may be subject to the terms of the Merchant's agreements with the Merchant's Internet/data provider, and the availability or uptime of the services provided by the Merchant's Internet/data provider.
3.3 If the Merchant becomes aware of any breach of the Contract by a User, the Merchant shall immediately terminate such User's access to the Services.
4. PRICES AND PAYMENT ARRANGEMENTS
4.1 This section does not apply to payments for Third Party Applications, which are governed by the Clover App Market Terms.
4.2 The Merchant shall make the payments in advance in the amounts and on the dates or with the frequency set out in the Application Form. All such amounts shall be paid in the currency specified in the Application Form unless agreed otherwise in writing by Clover.
4.3 The monthly payments shall be fixed during any agreed minimum term, but may otherwise be subject to change by Clover at any time following thirty (30) days' notice.
4.4 All sums payable under the Contract are exclusive of value added tax and any other taxes, charges or duties to which the supply of goods or services may be subject or give rise.
4.5 If any payment is not made by the Merchant in full when due, the Merchant shall pay to Clover a late fee of £5 + VAT or €7.50 + VAT, as applicable, for each month during which it remains unpaid but in no event more than the maximum permitted by law. The Merchant shall also pay to Clover a fee of £10 + VAT or €15 + VAT, as applicable, for any debit Clover attempts to make against the Merchant Bank Account that is for any reason rejected, but in no event more than the maximum amount permitted by law.
4.6 If the Merchant Bank Account is placed into collections for past due payment amounts, the Merchant agrees that Clover may recover a collection expense fee of £190 or €235, as applicable, or for each aggregate payment requiring a collection effort, but in no event more than the maximum amount permitted by law.
4.7 The Merchant may not withhold payment of any sum by reason of any set-off of any claim or dispute with Clover or any of its Affiliates whether relating to the quality or performance of the Services or otherwise.
5. THE REGISTERED ACCOUNT
5.1 The Merchant is solely responsible for ensuring that all information regarding the Merchant and its business as set out in the Registered Account is true, accurate, current and complete, and for maintaining and updating this information to keep it true, accurate, current and complete. If at any time any such information is not true, accurate, current and complete, Clover may suspend the Registered Account and terminate any and all current or future use of the Services.
5.2 The Merchant is solely responsible for ensuring that all details regarding access to the Registered Account and any other security or access information to use or access the Services are kept safe and confidential.
5.3 The Merchant shall prevent unauthorised access to and use of the Registered Account and the Services or any other security breach. The Merchant must immediately notify Clover of any such unauthorised access or use. Clover shall not be liable for any Losses that the Merchant may incur as a result of any such unauthorised access, and refunds will not be provided if an unauthorised person has used the Registered Account, except where such use arises due to the negligence or wilful misconduct of Clover. However, the Merchant may be held liable for any Losses incurred by Clover as a result of any such unauthorised use except where such use arises due to the negligence or wilful misconduct of Clover.
5.4 Clover reserves the right to deny the Merchant access to the Services, in whole or in part, if Clover believes that any loss, theft or unauthorised use of, or access to, any data or information has occurred.
6. THIRD PARTY WEBSITES
6.1 The Services may include a web browser via which the Merchant may access other websites provided by third parties. Clover has no control over the contents of those websites. Clover does not warrant, endorse, guarantee, or assume responsibility for any such websites, their contents or their privacy practices. Clover shall not be responsible for, and expressly disclaims any and all liability related to, any loss or damages caused by use or reliance on any content, features, goods or services made available through such websites. Clover will not be a party to or in any way monitor any transaction entered into by the Merchant in connection with other websites provided by third parties.
7. OWNERSHIP AND LICENSING
7.1 Clover grants to the Merchant and its Users a personal, non-exclusive, non-transferable, revocable licence for the term of the Contract to access and use the Services to manage the Merchant's establishment and to conduct associated point of sale activities for its internal business use only in accordance with the Contract, without the right to sub-licence or assign in any way.
7.2 All Intellectual Property Rights in or related to the Services are and remain the sole and exclusive property of Clover, and all right, title and interest associated with the Services not expressly granted by Clover in clause 7.1 are withheld.
7.3 The Merchant is not granted any rights or licence in respect of the trademarks, service marks or logos of Clover, which are and will remain the sole and exclusive property of Clover.
7.4 The Merchant may choose or Clover may invite the Merchant to submit comments or ideas about the Services, including about how to improve the Services ("Ideas"). By submitting any Idea, the Merchant agrees that: (a) Clover expressly disclaims any confidentiality obligations or use restrictions, express or implied, with respect to any Idea, (b) the Merchant's submission will be non-confidential, and (c) Clover is free to use and disclose any Idea on an unrestricted basis without notifying or compensating the Merchant. The Merchant releases Clover from all liability and obligations that may arise from Clover's receipt, review, use or disclosure of any portion of any Idea.
8.1 The Merchant shall indemnify and hold harmless Clover and its Affiliates from and against any Losses incurred by Clover and its Affiliates for any third party claims arising from or in connection with:
(a) the use by the Merchant or any of the Users of the Services in breach of the Contract;
(b) the Merchant's use of any Third Party Personal Data obtained in connection with the Merchant's use of the Services or any Application;
(c) the use by the Merchant and the Users of any Application;
(d) any activities under the Registered Account, or any other party's access and/or use of the Services with the Merchant's unique username, password or other appropriate security code; and
(e) insofar as Clover processes personal data as a data processor (as set out in clause 10), the processing by Clover of (i) Merchant Personal Data and/or (ii) Third Party Personal Data, in each case in accordance with the Contract.
9. LIMITATION OF LIABILITY
9.1 Nothing in the Contract excludes or limits the liability of either party for:
(a) death or personal injury caused by its negligence;
(b) breach of any obligation as to title implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (or Irish law equivalent for Merchants registered in the Republic of Ireland); or
(c) fraud or fraudulent misrepresentation.
9.2 Subject to clause 9.1, the maximum aggregate liability of Clover arising to the Merchant under or in connection with the Contract in respect of the year in which the liability arises, whether arising from tort (including negligence), breach of contract, statutory duty or otherwise, shall in no event exceed the lesser of either (a) thirty thousand pounds sterling (£30,000); or (b) the aggregate amount of the fees paid and payable by the Merchant to Clover under the Contract during the twelve (12) months immediately prior to the date on which the cause of action first arose.
9.3 Subject to clause 9.1, neither party shall be liable for any loss of profits, income, revenue, business, reputation or goodwill, loss of data, opportunity or any type of special, indirect or consequential loss, even if such loss was reasonably foreseeable or such party has been advised of the possibility of incurring the same.
9.4 Except as expressly stated in the Contract, all warranties and conditions, whether expressed or implied by statute, common law or otherwise, are hereby excluded to the fullest extent permitted at law.
9.5 The Merchant acknowledges that:
(a) The merchant acquirer is not a party to the Contract and has no responsibility for the provision of the Services and/or the supply of the Devices: Clover is solely responsible for the provision of the Services and supply of the Devices; and
(b) The Services do not include acquiring services; the merchant acquirer is responsible for the provision of merchant acquiring services to the Merchant under a separate contractual arrangement.
10. PRIVACY AND DATA USE
10.1 Clover shall process Merchant Personal Data in accordance with the Data Protection Laws to the extent that it is data controller of the same, and it shall process Third Party Personal Data in accordance with the Data Protection Laws (as relevant) in its capacity as data processor of the same. The Merchant shall process Third Party Personal Data in accordance with the Data Protection Laws, and it shall not do or omit to do, or cause or permit anything to be done or omitted to be done, which may cause or otherwise result in a breach of the Data Protection Laws by Clover.
10.2 Clover processes Merchant Personal Data in certain cases as data controller in the course of offering the Services including the creation and maintenance of the Registered Account and the Merchant's access to and use of the App Market. Separately and in addition, the Merchant hereby grants its explicit consent to the collection and processing by Clover of Merchant Personal Data and other merchant specific information of the type set out in clause 10.3 and for the purposes set out in clause 10.4.
10.3 Clover may collect the following types of Merchant Personal Data and other Merchant specific information:
(a) registered Account information: information associated with the creation and maintenance of the Registered Account, including name, phone number, bank account information, preferred payment method, email addresses, home postal addresses, unique device identifiers, Internet Protocol address, business name, business postal address, business phone number, Tax ID number and dedicated business contact;
(b) log data information: the Clover servers automatically record information that the Merchant's browser or mobile device sends whenever the Merchant uses the App Market ("Log Data"). The Log Data include the Merchant's IP Address, mobile device ID, browser type, operating system, the referring URL of the webpage the Merchant was visiting before it accessed the App Market, the URL of pages of the Website that the Merchant visits, the time spent on those pages, information searched for, access times and dates, subscriptions to, installations of or downloads of an Application from the App Market, usage data and other statistics;
(c) location information: Clover may receive location information from the Device when the Merchant uses the App Market. This information may include GPS signals or information about Wi-Fi access locations. Clover will also receive IP Addresses, which it may use to derive geographic location;
(d) content and communications information: if the Merchant submits a rating or review in the App Market, that information will be associated with the Registered Account Profile. If the Merchant submits a request for assistance or contacts Clover, Clover may record and store that interaction;
10.4 Clover may use Merchant Personal Data and other Merchant specific information for the following purposes:
(a) administration of the Services;
(b) direct marketing purposes;
(c) compliance with legal and regulatory obligations to which Clover or its Affiliates is subject, and compliance with court orders applicable to Clover or its Affiliates;
(d) to provide, improve, enhance and update the App Market;
(e) to promote, market and provide advertising regarding the App Market;
(f) to research and develop new products, applications, features and services for the App Market;
(g) to facilitate transactions and administer payments in connection with the Merchant's use of the App Market;
(h) to monitor and analyse usage of the App Market and for technical administration;
(i) to detect and take action against fraud and abusive activities including activities that Clover determines are in breach of the Contract regarding the Merchant's use of the App Market;
(j) to respond to inquiries of the Merchant;
(k) to contact the Merchant and to send it communications regarding activities under its Registered Account regarding its use of the App Market.
10.5 Clover may share Merchant Personal Data with the following third parties for the following purposes and the Merchant hereby confirms its approval to permit Clover to share such information:
(a) Affiliates: Clover may share Merchant Personal Data with its Affiliates for any purpose Clover for which may collect or process such information under the Contract. A list of Affiliates will be provided to Merchant upon request.
(b) Developers: If the Merchant subscribes to, installs or downloads a Third Party Application, it thereby authorises and instructs Clover to process certain categories of Merchant Personal Data to facilitate the Merchant's ongoing use of the Application, including the disclosure of certain categories of Merchant Personal Data to the Developer. The use of Merchant Personal Data by such Developer is governed by the App Agreement between the Merchant and Developer.
(c) Sub-contractors: Clover may share Merchant Personal Data with its sub-contractors, provided that such sub-contractors shall not use the Merchant Personal Data for any other purpose than set out in the Contract or otherwise agreed by the parties.
(d) Analytics service providers: Clover uses analytics service providers to better understand usage patterns on the Website and to enable Clover to improve the design and usability of its products and services. These providers collect information on behalf of Clover using cookies and similar technologies. Clover does not engage in "tracking" users outside of its service and the Website, nor does Clover take any action when a browser sends Clover a DNT (do-not-track) signal.
(e) Cooperation with the data protection authorities. Clover cooperates with data protection authorities and any other law enforcement authorities as required to comply with Data Protection Laws. Clover will disclose any Merchant Personal Data to such authorities as Clover, in its sole discretion, believes necessary or appropriate to respond to claims and legal process, to protect the property and rights of Clover or a third party or to prevent or stop activity Clover may consider to be, or to pose a risk of being, illegal, or legally actionable activity.
(f) Business transfer: Clover may sell, transfer or otherwise share some or all of its assets, including Merchant Personal Data, in connection with a merger, acquisition, reorganization, or sale of assets or upon an Insolvency Event.
10.6 The parties acknowledge that, in relation to any Third Party Personal Data processed by Clover under the Contract, the Merchant acts as the data controller and Clover acts as a data processor and that in addition, Clover may be data processor of certain Merchant Personal Data. The Merchant acknowledges that, as data controller, it chooses to use the Services and the Applications to process Third Party Personal Data and as such it is deciding the manner in which and the purposes for which the Third Party Personal Data is processed.
10.7 If and when the Merchant subscribes to, installs or downloads an Application from the App Market:
(a) the Merchant thereby authorises and instructs Clover to process the Third Party Personal Data to facilitate the Merchant's ongoing use of the Application, including the disclosure of certain categories of Third Party Personal Data to the Developer, as may be required by the Application; and
(b) the Merchant acknowledges that in respect of any Third Party Personal Data which is disclosed by Clover to the Developer pursuant to clause 10.7(a), the Merchant acts as the data controller, Clover acts as the data processor, and the Developer processes such Third Party Personal Data in accordance with the App Agreement.
10.8 Accordingly, the Merchant must provide appropriate and clear notices to all relevant third parties, including its customers and employees and other staff, in each case whether actual, prospective or past, and all other Users (as relevant) that Clover is processing their Personal Data on behalf of the Merchant, and such notices must include details of the categories of Third Party Personal Data processed, the purposes for which the processing takes place and any possible disclosures of the Third Party Personal Data to other third parties, in each case as is more particularly referred to in the Contract.
10.9 To the extent that Clover processes Third Party Personal Data as a data processor on behalf of the Merchant pursuant to the Contract, Clover shall:
(a) only process Third Party Personal Data to the extent necessary to comply with its obligations or to receive the benefit of its rights, in each case under the Contract, or as may be required for compliance with the Applicable Laws;
(b) only process Third Party Personal Data in accordance with the Contract and with the written instructions and directions of the Merchant in relation to the processing as such instructions are specifically set out in the Contract which the Merchant hereby acknowledges and agrees shall be its final instructions in respect of the same;
(c) have in place appropriate technical and organisational measures to protect Third Party Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and the Merchant hereby acknowledges and agrees that the same are wholly sufficient to protect the Third Party Personal Data in accordance with the Applicable Laws;
(d) refer to the Merchant any requests, notices or other communications regarding Third Party Personal Data, which specify or relate to the Merchant and have been received from data subjects, any applicable data protection authority or any other law enforcement authority to the extent permitted by the Applicable Laws;
(e) notify the Merchant about any significant unlawful disclosure of Third Party Personal Data;
(f) provide assistance and information to the Merchant as is reasonable and necessary for the Merchant to comply with its obligations under the Data Protection Laws as a data controller; and
(g) retain Third Party Personal Data for the duration of the Contract or as otherwise as long as permitted in accordance with the Data Protection Laws; and
(h) be entitled to utilize sub-processors for performing the Services, provided that such sub-processors shall process the Personal Data in compliance with the Contract.
10.10 To the extent that Clover processes Third Party Personal Data as a data processor on behalf of the Merchant, the Merchant warrants and undertakes that at all times:
(a) the Merchant is and shall be lawfully permitted to process, and to instruct Clover to process, Third Party Personal Data in accordance with the Contract; and
(b) where required by the Data Protection Laws, it will provide notices to and obtain valid consents from its Customers and employees and other staff and Users in each case whether actual, prospective or past, and all other relevant third parties, and any other Data Subject whose Personal Data it may ask Clover to process in accordance with the Contract, and that it has appropriate policies and procedures in place for giving such notices and obtaining such consents.
10.11 Third Party Personal Data and Merchant Personal Data will be stored in data centres in Frankfurt, Germany. In addition, Third Party Personal Data and Merchant Personal Data may be accessed by and transferred to Affiliates or third party service providers of Clover located in countries other than the Merchant's country and which may not ensure an adequate level of protection within the meaning of the Data Protection Directive. By supplying Personal Data to Clover, the Merchant grants explicit consent to Merchant Personal Data being accessed by and transferred to Clover worldwide, Affiliates and third party service providers of Clover located in such countries. Clover will ensure that the respective entity provides an adequate level of data protection, including by entering into contractual agreements for the transfer of personal data to third countries that meet the criteria set out in the Data Protection Directive.
10.12 Clover will hold Merchant Personal Data for as long as is necessary or as required by law. Clover may retain an archived copy of the Registered Account profile to comply with its legal obligations, resolve disputes, enforce its agreements, or any other lawful business purpose, and the Merchant hereby confirms its approval to permit Clover to retain and use Merchant Personal Data as set out in the Contract following the expiry or termination of the Contract for any reason.
10.13 Clover may share aggregated information and de-identified information with third parties for industry analysis, demographic profiling, or other purposes. Any aggregated information or de-identified information shared in this context will not contain Merchant Personal Data or Third Party Personal Data.
11.1 Each party ("Recipient Party") which receives Confidential Information of the other party ("Disclosing Party") shall:
(a) keep confidential the Confidential Information of the Disclosing Party; and
(b) not disclose the Confidential Information of the Disclosing Party in whole or in part to any other person without the Disclosing Party's prior written consent, save to its Representatives to the extent necessary for the performance of its obligations under the Contract, and then provided that the Recipient Party ensures that its Representatives are aware of and comply with these confidentiality obligations.
11.2 The obligations of confidentiality under clause 11.1 shall not apply to any Confidential Information which:
(a) must be disclosed by law or in response to a valid, legally compliant request by a law enforcement, regulatory or governmental authority, provided that (to the extent it is permitted to do so) the Recipient Party gives all reasonable notice of such disclosure to the Disclosing Party;
(b) was known to the Recipient Party before its receipt from the Disclosing Party;
(c) is lawfully in the public domain or possession of a third party other than by reason of breach;
(d) is independently developed without access to the Disclosing Party's Confidential Information; or
(e) is authorised for release by the written consent of the Disclosing Party.
12. SUSPENSION AND TERMINATION
12.1 Unless the Merchant has elected a specified Contract term, either party may terminate the Contract at any time upon written notice to the other party, such notice to expire at the end of the calendar month following the calendar month in which the notice is received. A Contract with a specified term may only be terminated after such specified term has been completed.
12.2 Upon as much notice as is commercially practical, Clover may suspend the Services or terminate the Contract without liability to the Merchant and with immediate effect if:
(a) any debit of the Merchant's bank account initiated by Clover is rejected when due or the Merchant otherwise fails to pay Clover any amounts due under the Contract with fifteen days of it becoming due;
(b) Clover determines that the use by the Merchant or any User of the Services (i) poses a material security risk to Clover or any third party; (ii) may have a material adverse impact on the Services or the systems or data of any other merchant; or (iii) may subject Clover, its Affiliates, or any third party to material liability;
(c) Clover has reasonable grounds to suspect that the Merchant and/or any of the Users is using the Services for fraudulent, illegal or unauthorised purposes;
(d) the Merchant commits a material breach of any term of the Contract and such breach is not capable of remedy or, if capable of remedy, is not remedied within a period of thirty (30) days of being notified in writing to do so; or
(e) an Insolvency Event of the Merchant occurs, or the Merchant ceases or threatens to cease to carry on the whole or any material part of its business.
12.3 The expiry or termination of the Contract for any reason shall not prejudice or affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
12.4 Upon the expiry or termination of the Contract for any reason:
(a) any and all amounts outstanding and any unpaid amounts due and owed under the Contract shall become immediately due and payable; and
(b) neither party shall have any further right or obligation with respect to the other party except as set out in this clause 12 and in the following additional clauses which shall continue with full force and effect: clause 7 (Ownership and Licensing), clause 8 (Indemnities), clause 9 (Limitation of Liability), clause 10 (Privacy and Data Use), clause 11 (Confidentiality), clause 15 (General) and clause 16 (Definitions).
13. CHANGES TO THESE TERMS OF SERVICE
13.1 Clover reserves the right to make changes to these Terms of Service at any time by publishing a revised version of these Terms of Service on the Website. The revised version of the Terms of Service will take effect from the time at which it is first published. The Merchant will be subject to the Terms of Service in force at the time that the Merchant uses the Services. The Merchant's continued use of the Services indicates its acceptance of such updates and changes. The Merchant is advised to check the Terms of Service from time to time for any updates or changes that may affect the Merchant. Clover last modified these Terms of Service on the date stated at the beginning of these Terms of Service.
14. ELECTRONIC COMMUNICATIONS
14.1 The Merchant agrees that Clover may provide notices and other information regarding the Services to the Merchant via the method(s) described in the relevant clause of these Terms of Service or in the manner set out below:
(a) Clover may provide disclosures required by law and other information about the Merchant's legal rights and duties to the Merchant electronically;
(b) where required or requested, the Merchant's electronic signature (via "click-through" or other method) on agreements and documents relating to the Services has the same effect as if the Merchant signed them in ink;
(c) Clover may send all communications, billing statements, amendments to the Services, notices, and other disclosures or information regarding the Services (collectively defined as "Disclosures") to the Merchant electronically (i) via e-mail, (ii) by access to a web site that Clover designates in an e-mail notice which it sends to the Merchant at the time the information is available, or (iii) to the extent permissible by law, by access to a website that Clover will generally designate in advance for such purpose;
(d) if the Merchant wants a paper copy, the Merchant can print a copy of the Disclosure or download the information for its records; and
(e) this consent applies to all future Disclosures sent to the Merchant in connection with the Services or the Contract.
14.2 By consenting, the Merchant agrees that electronic Disclosures have the same meaning and effect as if Clover provided paper Disclosures to the Merchant. When Clover sends the Merchant an email or other electronic notification alerting the Merchant that the Disclosure is available electronically and makes it available online that shall have the same meaning and effect as if Clover provided a paper Disclosure to the Merchant, whether or not the Merchant chooses to view or print or download the Disclosure.
15.1 The waiver by either party of any breach of the Contract by the other party shall not operate as a waiver of subsequent or other earlier breaches of the same or a different kind. No failure or delay by a party to exercise any of its rights under the Contract shall constitute a waiver of such rights.
15.2 If any provision of the Contract is found to be invalid, unenforceable or illegal, then such provision shall be severed and the remainder of the Contract shall continue with full force and effect.
15.3 The Merchant shall not assign the Contract, or delegate or sublicense any of its rights under the Contract, without the prior written consent of Clover. Any assignment or transfer in breach of this clause 15.3 will be void. Subject to the foregoing, the Contract will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
15.4 The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
15.5 No third party will have any rights under, or be able to enforce, the Contract.
15.6 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that it has not relied on any oral or written representations made to it (whether made negligently or innocently) other than as expressly set out in the Contract. Nothing in this clause 15.6 shall limit or exclude any liability for fraud.
15.7 The Contract is governed by English law unless the Merchant is registered in the Republic of Ireland in which event Irish law shall govern the Contract. The parties irrevocably submit to the exclusive jurisdiction of the courts of England (or Ireland in the event that the Merchant is registered in the Republic of Ireland) regarding any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
16.1 In these Terms of Service the following terms shall have the following meanings:
"Affiliate" means any present or future legal entities that are directly or indirectly owned or controlled by First Data Corporation (or its successor entities) and expressly excluding Kohlberg Kravis Roberts & Co. or any of its portfolio companies other than First Data Corporation and its subsidiaries. The term "control" in the preceding sentence means the ability to direct the management of a legal entity and the term "owns" or "ownership" mean the beneficial ownership of more than fifty percent (50%) of the equity interest in a legal entity;
"App Agreement" means for any Application which is subscribed to, installed or downloaded by the Merchant from the App Market, the contract which is created between the Merchant and the Developer regarding the Merchant's use of that Application;
"App Market" means the electronic marketplace operated by Clover through which the Merchant may browse, locate, subscribe to, install, download, access and uninstall Applications;
"App Terms" means for any Application the terms and conditions of the Developer which govern the Merchant's use of such Application;
"Applicable Laws" means applicable laws, statutes, enactments, orders, regulations, policies or other similar instruments in any jurisdiction in the world enacted by any court or government body or by common law or any consent, decree or settlement agreement entered into with any government body, to the extent applicable to a party, to the business of that party or to the obligations of that party under the Contract;
"Application" means any software, content or digital materials which are available for download by the Merchant through the App Market and includes any subsequent bug fixes, updates, upgrades, modifications, enhancements, revisions, new releases or new versions of such software, content or digital materials;
"Application Form" means the application form completed for the Merchant;
"Clover" means Marketplace Merchant Solutions Limited with registered number 539224 and with registered address at Unit 9, Richview Office Park, Clonskeagh Road, Dublin 14, Ireland;
"Clover Application" means an application that is owned by or licensed to Clover;
"Clover App Market Terms" means the terms regulating the access to and use of the App Market which shall apply if the Merchant uses the App Market; such terms supplement these Terms of Service and can be found at https://www.eu.clover.com/app-market-terms.
"Clover Ops Guide" means the operating procedures, requirements and guidelines regarding the Merchant's use of the Services that are published on the Help section of the Website or on the Merchant's web dashboard or otherwise notified to the Merchant in accordance with these Terms of Service;
"Confidential Information" means any information, whether in written or any other form, which has been disclosed by a party to the other party (i) in confidence; or (ii) which by its nature ought to be regarded as confidential (regardless of whether it is marked in writing as "confidential");
"Contract" means the contract created between the Merchant and Clover on the date on which Clover notifies the Merchant by email that the Registered Account has been created, and such contract incorporates the Application Form, these Terms of Service as may be amended from time to time, and any other documents incorporated by reference;
"Customer" means a person who purchases goods or services from the Merchant, where such purchase is facilitated by the Services;
"Data Protection Directive" means EU Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, to the extent that such directive has been implemented;
"Data Protection Laws" means any applicable data protection, privacy or bank secrecy laws or regulations including all laws and regulations implementing the Data Protection Directive;
"Developer" means any person or entity that is authorised by Clover to distribute, support and maintain one or more Applications through the App Market;
"Device" means the hardware manufactured by Clover and supplied by Clover to the Merchant under the Contract to enable the Merchant to receive the Services; and this term excludes the Peripherals;
"Disclosing Party" has the meaning in clause 11.1;
"Insolvency Event" occurs, with respect to a party, in the event of: (i) that party passing a resolution, or a court making an order, that such party be wound up (except for the purposes of a bona fide, solvent reconstruction or amalgamation); (ii) an order being made for the appointment of an examiner or administrator (or notice of any such actual or proposed appointment) in relation to that party or a receiver, examiner or manager being appointed over all or any part of that party's assets or undertaking; (iii) that person being unable to pay its debts as they fall due; (iv) an encumbrancer taking possession of, or execution, sequestration or other process being levied or enforced upon, any part of the undertaking, assets, rights or revenues of that party; (v) there being proposed, in respect of that party, any voluntary arrangement with creditors under Applicable Laws or any compromise, or arrangement with creditors under Applicable Laws; or (vi) any circumstances occurring that are the equivalent of (i) to (v) above under the legislation and related case law and practice applicable to that party (where (i) to (v) above do not apply for any reason to that party);
"Intellectual Property Rights" means all patents, trademarks, service marks, copyright and related rights, domain names, rights in get-up, design rights, database rights, topography rights, and all other similar proprietary rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Losses" means any and all losses, damages, settlement payments, awards, expenses and other charges (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs) of an entity, together with any fines or penalties which might be imposed or assessed on an entity by a government body;
"Merchant" means the merchant whose details are set out in the Application Form;
"Merchant Bank Account" means the merchant's bank account, the details of which are set out in the Registered Account;
"Merchant Personal Data" means personal data relating to the Merchant;
"Peripherals" means the cash drawer, kitchen printer, scanner, cable and any other peripherals supplied by Clover to the Merchant in connection with the Devices;
"Recipient Party" has the meaning in clause 11.1;
"Registered Account" means the account registered in the name of the Merchant for the use of the Services;
"Representatives" of the Merchant means its employees, officers, directors, agents, legal advisors, auditors and sub-contractors; and, in respect of Clover, means its Affiliates and the employees, officers, directors, agents, legal advisors, auditors and sub-contractors of Clover and its Affiliates;
"Services" means (i) the functionality provided by Clover that may be accessed by the Clover Applications which are pre-installed on and accessible via the Devices; (ii) storage of data which is generated from transactions and/or input by the Merchant onto the Website and/or the Devices; (iii) the capture, management and transmission of data for merchant acquiring services; (iv) integration with merchant acquiring services; and (v) the ability to perform split- tender transactions; and this term excludes payment card acceptance services and acquiring services;
"Third Party Application" means an Application that is owned by or licensed to a third party;
"Third Party Personal Data" means personal data relating to Customers and the Merchant's employees and other staff, in each case whether current, past or prospective;
"User" means an individual who is authorised by the Merchant to use the Services; and such term may include customers, employees and other staff, consultants, contractors and agents of the Merchant;
"Website" means the Clover website at https://www.eu.clover.com and any successor or related site designated by Clover.
16.2 The following expressions shall be construed as follows: (a) the terms "data controller", "data processor", "personal data", "process" and "processing" have the meaning given to those terms in the Data Protection Act 1998 (or Irish law equivalent for Merchants registered in the Republic of Ireland); and (b) any phrase introduced by the term "including" shall be construed as illustrative and shall not limit the sense of the words proceeding such term.
16.3 In interpreting the Contract (unless the context requires otherwise) any reference to any statute or statutory provision including any subordinate legislation includes a reference to that statute or statutory provision as from time to time amended, extended, re-enacted and/or replaced.
16.4 If there is any inconsistency or conflict between the various components of the Contract, these Terms of Service shall prevail to the extent of such inconsistency or conflict, unless expressly stated to the contrary.
17. SPECIAL PROVISIONS FOR PURCHASE OF THE DEVICES
The special provisions outlined in this clause 17 only apply if you purchase the Devices. This clause 17 will not apply if you pay for the Devices as part of the Services
17.1 Clover warrants that the Devices will be free from manufacturing, mechanical and electronic defects for one year from the date of dispatch to the Merchant ("Limited Warranty").
17.2 Subject to clause 17.3, if any Device fails due to a defect which is covered by the Limited Warranty, provided that the Merchant duly performs its obligations under the Contract, Clover will on reasonable notice and request from the Merchant, repair or replace such Device free of charge to the Merchant. Replacement Devices will be warranted for the remainder of the term of the Limited Warranty.
17.3 The Limited Warranty does not apply in the event of:
(a) improper site preparation;
(b) damage to, accidents, negligence or misuse of, the Devices;
(c) acts of nature such as flood or lightning damage;
(d) failure to follow written instructions on proper use;
(e) defects or damage resulting from any software, interfacing or supplies, originating other than from Clover; or
(f) unauthorised modification or repair.
17.4 With the exception of the Limited Warranty, Clover is not liable for the use or maintenance of the Devices and the Peripherals, their failure to operate, any repairs to or service of them. Clover's standard fees as updated from time to time will apply to the repair or replacement of Devices in connection with damage and defects not covered under the Limited Warranty.
17.5 Clover's standard fees as updated from time to time will apply to the repair or replacement of Devices in connection with damage and defects not covered under the Limited Warranty.
17.6 The Devices may be subject to export control laws and export or import regulations in other countries. The Merchant agrees to comply with all such laws and regulations, and accept responsibility for obtaining licences for the export, re-export or import of the Devices.
18. SPECIAL PROVISIONS IF THE DEVICES ARE PROVIDED AS PART OF THE SERVICES
The special provisions outlined in this clause 18 only apply if you pay for the Devices as part of the Services. This clause 18 will not apply if you purchase the Devices.
18.1 Clover's standard fees as updated from time to time will apply to the repair or replacement of Devices in connection with damage and defects which arise from:
(a) improper site preparation;
(b) damage to, accidents, negligence or misuse of, the Devices;
(c) acts of nature such as flood or lightning damage;
(d) failure to follow written instructions on proper use;
(e) defects or damage resulting from any software, interfacing or supplies, originating other than from Clover; or
(f) unauthorised modification or repair.
18.2 Within ten (10) Business Days following the expiry or termination of the Contract for any reason the Merchant shall at its expense, de-install and return (with insurance and freight pre-paid) to a place nominated by Clover all of the Devices and Peripherals, clean and in good condition and operating order (fair wear and tear excepted), with all stickers and markings removed. If the Merchant fails to return all of the Devices and Peripherals in accordance with the above, Clover will charge to the Merchant an amount equal to the cost of any repairs or improvements to the Devices and Peripherals required to clean them and restore them to good condition and operating order, or the full replacement value of the Devices and Peripherals, as appropriate.
18.3 The Devices may be subject to export control laws and export or import regulations in other countries. The Merchant agrees to comply with all such laws and regulations, and accept responsibility for obtaining licences for the export, re-export or import of the Devices.