This document is a “Product Attachment” as defined in the General Terms entered into by Client and Active and is subject to and incorporates by reference the provisions of the General Terms. This Product Attachment is effective the earlier of (i) the date it is “accepted” (in accordance with the Preamble to the General Terms), or (ii) the date Client downloads, installs, accesses or uses the Payment Manager mobile application software and any associated documentation and Enhancements (as defined below) provided with this Product Attachment (collectively, the “Application”). Any capitalized terms not defined herein have the meaning ascribed to them in the General Terms. Client agrees to be bound by the terms set forth herein. If Client does not agree to these terms, Active does not license Client any right to use or access the Application and Client may not install, access, use or copy the Application.
1. SERVICES. Active will provide licenses, permits, bill payment, merchandise sales, and payment processing (together, the “Services”), including without limitation access to its SaaS. Client agrees to cooperate with Active and to provide Active with certain information relating to Client’s organization as necessary for Active to provide the Services and SaaS. SaaS provided hereunder are deemed delivered when access is made available to Client.
2. LICENSE TO INTELLECTUAL PROPERTY/PROMOTION.
- 2.1. Active hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license during the Term of this Product Attachment (a) to use the SaaS for the purposes of offering, promoting, managing, tracking, and collecting fees in connection with Client’s Event(s) solely in accordance with the Agreement and the Schedule, which for purposes hereof will include the support and maintenance handbook applicable to the Products (available for review in the Client portal), as may be updated from time to time, and (b) to display, reproduce, distribute, and transmit in digital form Active’s name and logo solely for the purposes set forth in this Section 2.
- 2.2. License. During the Term, Active grants Client a revocable, nontransferable, nonexclusive license to use the object code version of the Application for the purpose of installation and use on hardware devices (to be provided by Client) solely for use within Client’s organization in connection with the SaaS and Services provided by Active. Active also grants to Client a non-transferable license to use the Application on (i) any Apple, Inc. (“Apple”)-branded products that Client owns or controls as permitted by the Usage Rules set forth in Apple's App Store Terms of Service [http://www.apple.com/legal/itunes/us/service.html], and (ii) any Android-branded products that Client owns or controls as permitted by Google LLC’s (“Google”) Usage Rules set forth in the Google Play Terms of Service [https://play.google.com/intl/en-US_us/about/play-terms/index.html].
- 2.3. Enhancements. Active reserves the right to upgrade, enhance, change or modify the Application at any time in its sole discretion (“Enhancements”). Any Enhancements made available to Client by Active, if any, will be subject to the terms of this Product Attachment, except to the extent that conflicting or more restrictive provisions are agreed upon in future Addendums relating to such Enhancements.
- 2.4. Third Party Components. The Application and future Enhancements may contain certain third party components (“Third Party Components”) which are provided to Client under different terms and conditions than this Product Attachment, or which require Active to provide Client with certain notices and/or information. Active will identify such third party components, including any associated license agreement, notices and other related information, delivered with the Application or future Enhancements. Client’s use of each Third Party Component which contains or is accompanied by its own license agreement will be subject to the terms and conditions of such other license agreement, and not this Product Attachment. Notwithstanding the foregoing, the following terms and conditions apply to all “Third Party Components”: (i) all Third Party Components are provided on an “AS IS” basis; (ii) Active will not be liable to Client or indemnify Client for any claims related to the Third Party Components; and (iii) Active will not be liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages with respect to the Third Party Components. Client’s sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the Third Party Components is to cease use of such components.
3. LIMITATIONS ON LICENSE. In addition to the restrictions set forth in Section 3.2 of the General Terms and Section 2 of this Product Attachment, the license granted to Client in this Product Attachment is also restricted as follows:
- 3.1. Use in Accordance with Documentation. All use of the Application shall be in accordance with its then current documentation.
- 3.2. Confidentiality. Client acknowledges and agrees the Application and associated documentation constitute valuable proprietary and confidential information and intellectual property (collectively, the “Proprietary Information”) of Active. Client may not use or disclose the Proprietary Information without Active’s prior written consent, except disclosure to and subsequent uses by Client’s employees and contractors who have a need-to-know, provided such employees and contractors have executed written agreements restricting use or disclosure of Proprietary Information that are at least as protective as those set forth in this Product Attachment. Client agrees to use at least the same degree of care in protecting the Proprietary Information as Client uses to protect Client’s own similar information, but in no event less than reasonable care. Client acknowledges that due to the unique nature of the Proprietary Information, Active will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Proprietary Information. In addition to any other remedies that may be available in law, in equity or otherwise, Active shall be entitled to obtain injunctive relief to prevent such unauthorized use or disclosure. Client shall not use any information or data disclosed by Active in connection with this Product Attachment to contest the validity of any Active intellectual property. Any such use of Active’s information and data shall constitute a material, non-curable breach of this Product Attachment.
- 3.3. The licensed granted herein for the Application is expressly conditioned on continuous compliance with this Product Attachment and payment in full of all applicable fees.
4. INFORMATION COLLECTION.
- 4.1. Active collects certain information from End Users, individuals, and/or Licensees as part of the Services (collectively, “End User Information”). Client may login to Active’s data management system to access the End User Information. Client is responsible for the security of its login information and for the use or misuse of such information. Client will immediately disable a Client User’s access who is using the SaaS on its behalf or notify Active in writing if any such Client User is no longer authorized or is using such information without Client’s consent. Active may rely, without independent verification, on such notice, and Client, inclusive of Client’s parent, subsidiaries, and affiliated entities, as applicable, and each of their respective officers, directors, managers, shareholders, owners, agents, employees, contractors, and representatives, to the extent not prohibited by law, covenant not to sue and agree to defend, indemnify, and hold harmless Active from any claims arising from Active providing, denying, suspending, or modifying access to or use of the SaaS and Services of any individual as directed by Client or by someone who Active reasonably, under the circumstances, believes is authorized to act on behalf of Client. In the event of any dispute between two or more parties as to account ownership, Client agrees that Active will be the sole arbiter of such dispute in its sole discretion and that Active’s decision (which may include termination or suspension of any account subject to dispute) will be final and binding on all parties. Client agrees not to use the SaaS or Services to collect or elicit (a) any special categories of data (as defined in the General Data Protection Regulation, as may be amended from time to time), including, but not limited to, data revealing racial or ethnic origin, political opinions, religious or other beliefs, trade-union membership, as well as personal data concerning health or sexual life or criminal convictions other than as expressly directed by Active, and in such event, only in pre-defined fields within the SaaS that are intended for that purpose; or (b) credit card information other than in pre-defined fields within the SaaS that are intended for that purpose. Additionally, Client shall not add any analysis tracking tools or marketing intergrations to the Application.
- 4.4. THE APPLICATION MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CLIENT ACKNOWLEDGES AND AGREES THAT ACTIVE DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB‑SITES, COMPUTERS, OR NETWORKS. ACTIVE SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CLIENT IS SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF ITS DATA AND SYSTEMS.
- 5.1. Client will pay the fees as more fully described in the applicable Schedule. The applicable currency will be set forth in the Schedule.
- 5.2. If the Schedule indicates that Client is paying on a subscription basis, Client will be invoiced for the first month of subscription fees on the date of the first live operational use of the SaaS for the Event(s) (“Go-Live Date”), with subsequent subscription fees being invoiced monthly. If the Schedule indicates that Client is paying on a transaction basis, all amounts owed by Client are due from Client within 30 days from either (a) the end of the remittance cycle during which the fees accrued, or (b) the date of the applicable invoice.
- 5.3. If (a) there are any overdue or overage amounts owed by Client; or (b) there are returned charges or items, including those resulting from any error or complaint, Active has the right to charge fees owed to Active by Client by offsetting the deficiency from any account balance Client maintains with Active or any payment Active owes Client.
- 5.4. It is Client’s responsibility to notify End Users of Client’s refund policy. Client must ensure that Client’s refund policies are consistent with the Agreement. Client agrees that all amounts ultimately due to Client will be net of all service fees, reversals, refunds, disputed charges, chargebacks and other deductions whether due to customer complaints, allegations of fraud, discrepancies or otherwise. Active will notify Client of the reason for such offset provided that it is lawful to do so.
6. TERM AND TERMINATION.
- 6.1. Unless otherwise set forth in the applicable Schedule, this Product Attachment will commence on the Effective Date and will continue in effect until the earlier to occur of (i) its termination in accordance with the terms and conditions below and (ii) the third anniversary of the Effective Date (the “Initial Term”). This Product Attachment shall renew automatically following the Initial Term for subsequent renewal terms thereafter of three (3) years (the “Renewal Term(s)”, and, together with the Initial Term, the “Term”) unless either Party delivers written notice to the other Party at least 12 months prior to the expiration of the then-current Term of its intent to terminate this Product Attachment upon the completion of the Initial Term or any Renewal Term. Unless otherwise set forth in the applicable Schedule, to the extent that Client enters into a Schedule for additional Services and/or SaaS that are related to or interoperable with Services or SaaS set forth in a previously entered into Schedule, the Term of such subsequent Schedule will be concurrent and coterminous with the Term of the previously entered into Schedule.
- 6.2. If Client has entered into a sub-merchant agreement for payment processing services, and such agreement is terminated by the applicable acquiring bank, Active may terminate this Product Attachment and the effected Schedule.
- 6.3. Licensee’s Termination Obligations. In the event of any expiration or termination of this Product Attachment for any reason, Client must remove all copies of the Application and all of its components from all of Client’s systems, and destroy all related media and documentation, if any. The license granted to the Application will automatically terminate on expiration or termination of this Product Attachment.
Client’s obligations and all amounts payable hereunder are contingent upon sufficient appropriations therefore by Client’s Governing Body. If sufficient appropriations are not made, Client will notify Active of the same, and this Agreement will terminate forthwith. Client represents that it intends to fulfill its obligations under this Agreement and reasonably believes that funds in amounts sufficient to fulfill these obligations lawfully can and will be appropriated and made available for this purpose. In the event funds are not appropriated in amounts sufficient to fulfill these obligations, Client shall use its best efforts to satisfy any requirement for payment from any other source of funds legally available for this purpose. Notwithstanding the foregoing, Client shall notify Active within ten (10) days of any action by Client's governing body not to appropriate funds for payment of Client's obligations hereunder, and will provide with such notice a copy of the resolution, minutes or recording of such action.
8. MAINTENANCE SERVICES.
- 8.1. During the Term, Active will provide Client with any Enhancements to the Application that Active distributes to its other customers generally without additional charge. If Active distributes any Enhancement as an option or new product for which it charges an additional fee, it will make such option or new product available to Client on the same terms as it offers generally to other similarly situated customers. You and Active agree that Apple and Google have no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
- 8.2. Client is solely responsible for the maintenance, installations and operation of Client’s mobile device on which Client accesses the Application and for the software used in accessing the Application. Active will not be responsible for any errors, deletions, or failures that occur as a result of any malfunction of Client’s mobile device or software, or any computer virus that affects Client’s mobile device or the software while using the Application.
- 9.1. Client is responsible for properly configuring and using the Application and taking its own steps to maintain appropriate security and protection of the information and materials contained on the Application (“Content”). In particular, Client acknowledges and agrees that the following are security best practices for use of the Application on a mobile device and that it shall implement security controls that are consistent with the following:
a. Prevent the use of built-in camera or recording features to capture images of payment cards, expiration dates or CID codes
b. Prevent the use of “side load” applications or any applications not provided through the official Apple or Android app stores
c. Restrict access to and refrain from loading links or web URLs received through email, SMS applications, applications with video or chat features (i.e. Skype, WhatsApp, etc.), or from unknown sources
d. Prevent the use of devices where built-in hardware or operating system security controls have been disabled (i.e. “jailbroken” or “rooted”)
e. Maintain all applicable hardware and operating system patches and security updates for any mobile device with the Application installed.
f. Maintain controls to detect unauthorized third-party access using fraud detection applications, anti-malware, or other reputable security “all-in-one” scanning applications that cannot be disabled
g. Use a secure passcode/password, hardware token, or biometric access control (fingerprint reader) to gain access to and use the mobile device
h. Ensure card reader device is connected to a trusted mobile device configured to download and install firmware and security updates at a frequency consistent with security best practices
- 9.2. Any login credentials are for Client’s use only and Client may not share, transfer, or license them to any other entity or person without express written consent from Active. In order to protect Active and the data held by Active, Active may suspend all use of the Application in general or Client’s use of the Application in particular or the information relating to Client, without notice, pending an investigation, in the case of a breach or a suspected breach of security.
- 9.3. At Active’s sole discretion, Active may suspend Client’s right to access or use any portion or all of the Application if Active determines that Client’s use of the Application does not comply with this Product Attachment, may pose a security risk, may adversely impact the Application, may be fraudulent, or may be in violation of any applicable law, including export control laws. Unauthorized use of the Application, including but not limited to unauthorized entry into Active’s systems, misuse of passwords, or misuse of the Content, is strictly prohibited.
10. HARDWARE. Active and other third parties (including, without limitation, our resellers and/or distributors) may, from time to time and in Active’s/their discretion, sell or lease hardware for use with the Application. All such hardware sales/leases and the terms and conditions thereof will be subject to a separate written agreement between Client and the seller/lesser of such hardware. None of the terms contained in this Product Attachment will apply to such sale/lease.
11. ADDITIONAL APPLE AND GOOGLE TERMS.
- 11.1. Client and Active acknowledge that this Product Attachment is concluded between Client and Active only, and not with Apple or Google, and that Active, not Apple or Google, is solely responsible for the Application and the content thereof.
- 11.2. Client and Active acknowledge and agree that Apple and Google, and their subsidiaries, are third party beneficiaries of this Agreement, and that, upon Client’s acceptance of the terms and conditions of this Product Attachment, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce this Product Attachment against Client as a third party beneficiary thereof.
- 11.3. Client and Active acknowledge that in the event of any third party claim that the Application or Client’s possession and use of the Application infringes that third party's intellectual property rights, Active, not Apple or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim in accordance with the General Terms.
- 11.4. Active, not Apple or Google, is responsible for addressing any claims of the End User or any third party relating to the Application or your possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- 11.5. Client agrees to comply with applicable third party terms of agreement when using the Application, e.g., if Client has a VoIP application, then Client must not be in violation of its wireless data service agreement when using the Application.
- 11.6. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple and/or Google, as applicable, and Apple or Google will refund the purchase price for the Application to you, if applicable. To the maximum extent permitted by applicable law, Apple and/or Google will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Active’s sole responsibility.
- 12.1. Sections 5 and 7 of this Product Attachment and any fees owed by Client will survive any termination or expiration of the Agreement.
- 12.2. The “Liquidated Damage Amount” equals the “Annual Projected Contract Value” (to the extent such amount is specified in the applicable Schedule(s)) times the number of years in the then-current Term, minus the amount of revenue already paid to Active during the then-current Term, net of all refunds, credit card chargebacks, and all other deducted amounts. Client agrees that (a) it will pay Liquidated Damages to Active if (i) Active terminates a Schedule and/or the Agreement in accordance with Section 5.2 of the General Terms; (iii) Client fails to cause an assignment as specified in Section 6.2 of the General Terms; and/or (iv) Active terminates a Schedule and/or the Agreement pursuant to Section 6.3 of the General Terms; (b) all Liquidated Damage Amounts set forth in the Agreement will automatically reset during each Renewal Term; (c) Active may offset any Liquidated Damages Amount set forth in the Agreement from any account balance Client maintains with Active or any payment Active owes Client; (d) because of the difficulty in making a precise determination of actual damages incurred by Active, the Liquidated Damage Amount will be assessed, not as a penalty, but as a reasonable approximation of costs incurred by Active and Active’s loss of revenue; and (e) that in any suit or other action or proceeding involving the assessment or recovery of liquidated damages, the reasonableness of the Liquidated Damage Amount will be presumed and the liquidated damages assessed will be in addition to every other remedy now or hereinafter enforceable at law, in equity, by statute, or under the Agreement.
- 12.3. Legal Compliance. Client represents and warrants it is not located in a country that is subject to a U.S Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (v) Client is not listed on any US Government list of prohibited or restricted parties.
- 12.4. Infringement Claims. In the event of a claim of intellectual property infringement by any third party relating to the Application (“Infringement Claims”), Active reserves the right to immediately terminate this Product Attachment and the rights granted hereunder. In such event, Active shall refund a pro rata portion of any prepaid fees.