Mobilemerchant EULA

Customer Resource Centre

PLEASE READ CAREFULLY BEFORE DOWNLOADING THE APP FROM THIS WEBSITE. THIS DOCUMENT SETS OUT YOUR RIGHTS AND OBLIGATIONS.

To use this App you need an active and valid merchant agreement with Elavon Financial Services DAC (Merchant Arrangement).

This end-user licence agreement, including the terms, policies, guidelines and instructions referred to herein (EULA) is a legal agreement between you, the sole trader, company or other business entity having created a Merchant Arrangement with us (you) and Elavon Financial Services DAC (Registered No. 418442) of Building 8, Cherrywood Business Park, Loughlinstown, Co. Dublin, D18 W319, Ireland (us, we or our) for the Elavon MobileMerchant mobile application software (App).

We licence the use of the App to you on the basis of this EULA and subject to any rules or policies applied by any app store provider or operator from whose site (Appstore) you download the App (Appstore Rules). We do not sell the App to you and we remain the owners of the App at all times.

BY DOWNLOADING THE APP FROM THIS WEBSITE OR CLICKING ON THE "ACCEPT" BUTTON YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTOOD AND ACCEPT TO BE BOUND BY THE TERMS OF THIS LICENCE.

If you do not agree to the terms of this EULA, we will not license the App to you and you must stop the downloading process now by, for example, clicking on the "Cancel" or “Delete” button/icon. In this case the downloading process will terminate.

AGREED TERMS

1. ACKNOWLEDGEMENTS
1.1 The terms of this EULA apply to the App or any of the services accessible through the App (Services), including any updates or supplements to the App or any Service, unless other terms are made available to you, in which case those terms apply. It is important that you understand the risks and liabilities associated with the use of the App and the Services and we therefore encourage you to read the EULA and any additional terms carefully before agreeing to them and before you start using the App and the Services. The terms of service applicable to your Merchant Arrangement (Merchant ToS) will also apply to the Services accessed through the App. If there is an inconsistency between any of the provisions of this EULA and the Merchant ToS in relation to the Services, the Merchant ToS shall prevail.
1.2 From time to time updates to the App may be issued through the Appstore. Depending on the update, you may not be able to use the App until you have downloaded or streamed the then latest version of the App and accepted any new terms.
1.3 You will be assumed to either be the owner of or to have obtained permission from the owners of the mobile telephone or handheld devices on to which you download the App (Devices). You and they may be charged by your and their service providers for internet access on the Devices. You accept responsibility in accordance with the terms of this EULA for the use of the App or any Service on or in relation to any Device, whether or not it is owned by you.
1.4 By using the App you warrant that: (i) you are 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 (ii) that you are not listed on any U.S. Government list of prohibited or restricted parties and agree that you will not use the App for any purposes prohibited by United States Laws or any other applicable laws.
1.5 Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.

2. DATA PROTECTION

2.1 The terms of our privacy policy, as amended from time to time, are available at www.elavon.co.uk/privacy-policy (UK); www.elavon.ie/privacy-policy (IRE); www.elavon.de/datenschutzerklarung (Germany); or www.elavon.pl/polityka-prywatnosci (Poland) (Privacy Policy) are incorporated into this EULA by reference. You acknowledge that you have received and read in full the terms of our Privacy Policy incorporated into these EULA by reference, which explains how and for what purposes we collect, use, retain, disclose and safeguard the information you provide to us. Additionally, the terms relating to personal data contained in the Merchant ToS and the Merchant Application Form for your Merchant Arrangement apply to any personal data submitted via the App.
We are responsible for protecting the security of personal information in our possession. We have implemented administrative, technical and organizational procedures to protect personal information that is stored in our servers from unauthorized access and accidental loss, modification or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such information for improper purposes.
2.2 By using the App or any Service, you acknowledge and agree that internet transmissions are never completely private or secure. You understand that any message or information you send using the App or any Service may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
2.3 By using the App or any of the Services, you consent to us collecting and using technical information about the Devices and related software, hardware and peripherals for Services that are internet-based or wireless to improve our products and to provide any Services to you.
2.4 The App or any Service may contain links to other independent third-party websites. Such third-party websites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any).
2.5 If you have a query about your data please contact us by email to the email addresses provided in section 13 of this EULA.

3. GRANT AND SCOPE OF LICENCE

3.1 In consideration of you agreeing to abide by the terms of this EULA, we grant you a non-transferable, non-exclusive licence to use the App on a Device owned or legally and validly controlled by you, subject to these terms, the Privacy Policy and the Appstore Rules, and any other terms incorporated into this EULA by reference. We reserve all other rights.

4. LICENCE RESTRICTIONS

Except as expressly set out in this EULA or as permitted by applicable law, you agree:
(a) not to copy, nor attempt to copy, the App except where such copying is incidental to normal use of the App, or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App, nor attempt to do any such thing;
(c) not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs, nor attempt to do any such thing;
(d) not to disassemble, decompile, reverse-engineer, create derivative works based on the whole or any part of the App or otherwise or attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the App with another software program, and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of the App with another software program;
(ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
(iii) is not used to create any software that is substantially similar to the App.
(e) to keep all copies of the App secure and to maintain accurate and up-to-date records of the number and locations of all copies of the App;
(f) to include our, and our licensors’, copyright notices on all entire and partial copies you make of the App on any medium;
(g) not to remove, obscure, or alter any proprietary notices (including copyright notices) affixed to or contained within the App;
(h) not to provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person;
(i) to comply with all applicable laws and regulatory requirements relating to the use of the App including all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service (Technology);
(j) to only use the App in conjunction with your Merchant Arrangement and a compatible Mobile Merchant payment device as supplied by Elavon; and
(k) to delete the App in the event that you give or sell your Device to a third party.

5. ACCEPTABLE USE RESTRICTIONS

You must:
(a) not use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Service or any operating system;
(b) not infringe our, or our licensors’, intellectual property rights, or those of any third party in relation to your use of the App or any Service (to the extent that such use is not licensed by this EULA);
(c) not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
(d) not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
(e) ensure that any data submitted through the App is accurate and complete and you hereby grant us, our licensors and sub-contractors, a licence to use such data to the extent necessary to provide the App and the Services to you;
(f) not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service;
(g) only use the App for your own business requirements to process payment transactions in accordance with the Merchant ToS; and
(h) use reasonable endeavours to prevent any unauthorised access to, or use of, the App and notify us promptly on becoming aware of any such unauthorised access or use.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 You acknowledge that all intellectual property rights in the App, and the Technology, anywhere in the world belong to us, or our licensors, that rights in the App are licensed (not sold) to you, and that you have no rights in, or to, the App or the Technology other than the right to use each of them in accordance with the terms of this EULA.
6.2 You acknowledge that you have no right to have access to the App in source-code form.
6.3 In the event that it is alleged that the App infringes any third party intellectual property rights we, or our licensors, shall be responsible for the investigation, defence, settlement and discharge of any such claim.
YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSES 7 AND 8 BELOW.

7. NO WARRANTY

7.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW WE PROVIDE THE APP TO YOU ON AN ‘AS IS’ AND “AS AVAILBALE” BASIS AND WITHOUT ANY WARRANTY OR CONDITION, WHETHER EXPRESS, IMPLIED OR STATUTORY AND SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.2 WE DO NOT WARRANT CONTINIOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF THE APP AND THE SERVICES AND WE WILL NOT BE LIABLE FOR ANY DISRUPTION OR IMPAIRMENT OF THE APP AND THE SERVICES UNDER THE EULA.
WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE APP AND THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT, THAT THE APP AND THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE APP AND THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAT TIME OR LOCATION, UNINTERRUPTED OR SECURE, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE APP AND THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP AND THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.

8. LIMITATION OF LIABILITY

8.1 YOU ACKNOWLEDGE THAT THE APP HAS NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS, AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE APP MEET YOUR REQUIREMENTS. WE ONLY SUPPLY THE APP FOR INTERNAL USE BY YOUR BUSINESS, AND YOU AGREE NOT TO USE THE APP FOR ANY RE-SALE PURPOSES.
8.2 OUR TOTAL LIABILITY TO YOU UNDER OR IN CONNECTION WITH THIS EULA OR FROM THE USE OF THE APP, SUBJECT TO SECTION 8.3 BELOW, , WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE SHALL IN ALL CIRCUMSTANCES BE LIMITED TO GBP 50 OR THE EQUIVALENT AMOUNT IN EUROS OR POLISH ZLOTY RESPECTIVELY.
8.3 Nothing in this EULA shall limit or exclude liability of any person or party for:
(a) death or personal injury resulting from its negligence;
(b) fraud or fraudulent misrepresentation; and
(c) any other liability that cannot be excluded or limited by English law.

9. EVENTS OUTSIDE OUR CONTROL

9.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks (Event Outside Our Control).
9.2 If an Event Outside Our Control takes place that affects the performance of our obligations under this EULA:
(a) our obligations under this EULA will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
(b) we will use our reasonable endeavors to find a solution by which our obligations under this EULA may be performed despite the Event Outside Our Control.

10. CHANGES TO THESE TERMS

10.1 We may change this EULA at any time and you will be notified of the change. . The new terms may be displayed on-screen or otherwise and you may be required to read and accept them to continue your use of the App.

11. TERMINATION

11.1 We may terminate this EULA immediately by written notice to you:
(a) If you commit a material or persistent breach of this EULA which you fail to remedy (if remediable) within 14 days after the service of written notice requiring to do so;
(b) If you breach any of the License Restrictions or the Acceptable Use Restrictions; and
(c) On thirty days’ notice.
11.2 This EULA will terminate upon termination of your Merchant Arrangement, in accordance with your Merchant ToS.
11.3 On termination for any reason:
(a) all rights and licences granted to you under this EULA shall cease;
(b) you must immediately cease all activities authorised by this EULA, including your use of the App; and
(c) you must immediately delete or remove the App from all Devices, and immediately destroy all copies of the App and Documents then in your possession, custody or control and certify to us that you have done so.

12. OTHER IMPORTANT TERMS

12.1 We may transfer our rights and obligations under this EULA to another organisation, but this will not affect your rights or our obligations under this EULA.
12.2 You may only transfer your rights or obligations under this EULA to another person if we agree in writing prior to such a transfer.
12.3 A person who is not party to this EULA has no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce it, save that CreditCall Limited (NMI) and Elavon Inc. shall have the right to enforce its rights under this EULA pursuant to the Contracts (Rights of Third Parties) Act 1999 as though it were a party to it.
12.4 Each of the conditions of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
12.5 Please note that this EULA, its subject matter and its formation, are governed by Irish law. You and we both agree that the courts of Ireland will have non-exclusive jurisdiction.

13. COMMUNICATION BETWEEN US

If you have a query about this EULA, your Merchant Arrangement, your data, or you wish to contact us in writing, you can contact us by e-mail at: (UK) salesuk@elavon.com ; (Ireland) sales@elavon.com; (Germany) sales.de@elavon.com; or (Poland) obsluga.klienta@elavon.com

13.2 If we have to contact you or give you notice in writing we will do so by email to the email address you provide to us in your Merchant Application Form.