Merchant Credit Card Surcharging Program Terms

These Merchant Credit Card Surcharging Program Terms (the “Terms”) apply to the use of certain software and related technology provided to you (the “Customer”) through Nuvei (“Partner”) in connection with credit card surcharging activities.

PLEASE READ THESE TERMS CAREFULLY. BYPARTICIPATING IN THE PROGRAM (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, AND AGREE TO BE BOUND BY THEM.

1.      DEFINITIONS‍

 “Applicable Law” means all federal, state, provincial or local laws, rules, and regulations applicable to any activity carried out or proposed to be carried out by a party under these Terms.

“Authorized Users” means any Customer employee or consultant who Customer authorizes to use the Technology on its behalf.

“Card Network Merchant Rules” means the most recent publicly available merchant guidelines published by Visa®, MasterCard®, American Express®, and/or Discover®.

“Program” means the Partner’s credit card surcharge program, pursuant to which Customer adds a surcharge to its consumers’ credit card transactions to offset all or a portion of the fees Customer pays for processing such transactions.  

“Provider” means any third party engaged by Partner to provide or facilitate use by Customer of the Program, including the Technology.

“Technology” means the Provider’s proprietary software solution used in connection with the Program to apply credit card surcharges to consumer purchases.

2.    END USER LICENSE 

2.1  License.  Subject to these Terms, Customer understands and agrees that it is being granted a non-exclusive, non-transferable, non-sublicensable, license to allow its Authorized Users to access the Program solely as necessary to integrate the Technology.

2.2  Authorized Users. Customer is solely responsible for: (a) identifying and authenticating all Authorized Users; (b) approving access by such Authorized Users to the Technology; (c) protecting against unauthorized use by Authorized Users; (d)maintaining the confidentiality of usernames, passwords and account information for Authorized Users; and (e) all activities that occur under its Authorized Users’ usernames, passwords or accounts.

2.3  Limitations.  Customer will not and will not allow others (including Authorized Users) to: (a) reverse engineer, decompile, disassemble or translate the Technology, or otherwise attempt to derive source code, trade secrets or know-how in or underlying the Technology; (b) interfere with, modify, disrupt or disable features or functionality of the Technology; (c) copy, sell, rent, lease, sublicense, distribute, create derivative works of, assign or otherwise transfer or provide access to, in whole or in part, the Technology to any third-party except to Authorized Users; (d) use the Technology in furtherance of any violation of Applicable Law or any infringement, misappropriation or violation of any third-party rights; (e) interfere with or disrupt the integrity or performance of the Technology or attempt to gain unauthorized access to the same or any related systems or networks; or (f) access the Technology for the purpose of developing, distributing or making accessible products or services that compete with the Technology.

3.     RIGHTS & OBLIGATIONS.

3.1  Customer Compliance. Under the Program, Customer represents, warrants, and agrees that it:

(a)    will comply with any Applicable Law and Card Network Merchant Rules regarding surcharging;

(b)    will notify its customers of a potential surcharge before the completion of any transaction and, if applicable, at both the (i) store entry and (ii) store payment counter for physical point-of-sale payments;

(c)    will include a separate line item for the surcharge amount or percentage in its presentation to customers both on the (i)payment application and (ii) payment confirmation/receipt, and refund the pro-rated surcharge amount if a refund is processed for the goods or services sold;

(d)    will not include a surcharge if the transaction already includes “convenience fees” or “service fees” (as defined by Visa, MasterCard, Discover, American Express, etc.);

3.2  Ownership; Reservation of Rights. All rights, title and interest in and to the Technology, including all works of authorship (including software and documentation), trade secrets, inventions and other technology in any form pertaining thereto, shall remain with Provider and Customer agrees not to take any action that would be inconsistent with such ownership.

3.3  Usage Data. Provider may publish or distribute to third parties any data related to Customer’s use of the Technology (“Usage Data”), provided that such Usage Data is aggregated with other data in a manner that does not allow such Usage Data to be separated from the aggregate data or identified as relating to Customer absent the use of extraordinary efforts.  Usage Data will not include any personally identifiable information relating to Customer, Authorized Users, or Customer’s clients or customers.

3.4  Feedback. Customer may elect to provide ideas, suggestions, or feedback related to any aspect of the Program, including the Technology (“Feedback”). Such Feedback will be non-confidential. Customer hereby assigns to Partner and Provider any and all right, title and interest that Customer may have in and to any and all Feedback, without any fees, attribution or other obligations to Customer.

4.      DISCLAIMER.

PARTNER AND PROVIDER DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY SOFTWARE USED IN CONNECTION WITHTHE PROGRAM, INCLUDING WITHOUT LIMITATION, THE TECHNOLOGY, AND HEREBY DISCLAIMALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANYWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE ANDNON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSEOF PERFORMANCE OR USAGE OF TRADE. PARTNER AND PROVIDER DO NOT WARRANT THAT THEOPERATION OF THE TECHNOLOGY SHALL BE UNINTERRUPTED OR ERROR-FREE.

5.     LIMITATION OF LIABILITY.

IN NO EVENT SHALL PROVIDER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE ORINDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOST BUSINESS PROFITS, OR LOSS,REVENUE, DAMAGE OR DESTRUCTION OF DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. IN THE EVENT THAT ANY PROVISION OF THIS SECTION SHALL BE DEEMED UNENFORCEABLE IN ACCORDANCE WITH APPLICABLE LAW, SUCH PROVISION SHALL BE DEEMED MODIFIED ASNECESSARY TO ENSURE ENFORCEABILITY OF THIS SECTION TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW. No action, whether in contract or tort, including negligence, arising out of or in connection with these Terms, may be brought CUSTOMER more than two (2) years after the cause of action has accrued.

6.      INCORPORATION OF TERMS.

These Terms are incorporated by reference into any purchase orders, services agreements, or other related agreements between Customer and Partner (the “Customer Agreements”) and shall supplement the rights, duties, and obligations under the Customer Agreements, including, but not limited to, disclaimers, limitations of liability, and indemnification rights contained therein. In the event of any direct conflict between these Terms and the terms of the Customer Agreements, these Terms shall govern. The terms of the Customer Agreements shall inure to the benefit of the Provider in all circumstances related to Customer’s use of the Technology and participation in the Program.

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