Last Updated: August 23, 2019
The activation by you, the business accepting payments through a Device (defined below), ("you" or "your") of your Device represents your agreement to these Terms. These Terms form a legally binding contract between you and Clover in relation to your access and use of the Clover App Market. You represent and warrant that you (a) have the right and authority to bind your business to these Terms, (b) authorize Clover to rely on any instructions provided by or agreements entered into with any persons to whom you grant permission to access and use the Clover App Market, and (c) you are not barred or otherwise legally prohibited from accessing or using the Clover App Market.
All capitalized terms used in these Terms shall have the meanings set out in Section 2.
1. The App Market
1.1 Access to Apps. Subject to your compliance with these Terms, Clover grants to you a non-exclusive, non-transferable, non-sublicensable and revocable license to access and use the App Market to browse, locate or install Apps. You agree that Clover is not responsible and does not have any liability for any App in the App Market, other than Apps for which Clover is the Developer.
1.2 Use of App Market. You may only use the App Market in accordance with these Terms, as updated by Clover from time to time in its sole discretion, and accessible at www.clover.com.
1.3 Installing Apps. The App Market acts as a venue to allow you to browse, locate or install Apps. If you install an App from the App Market, an App Agreement is created between you and the applicable Developer when you click the button to accept the App Terms. Your right to use the App will be governed by the terms of the App Agreement. The Developer has the right to enforce the App Agreement against you. Unless Clover is the Developer of a particular App, Clover: (a) is not a party to the App Agreement; (b) does not own or license the right to use any of the Apps; and (c) does not provide any maintenance or support of the Apps. Clover is simply acting as the Developer's agent in making the App available in the App Market and collecting the App Fees and Taxes for that App. Responsibility for an App lies solely with the Developer, as set out in the App Agreement.
1.4 Operator of the App Market. The App Market is operated by Clover or one of its Affiliates.
2.1 Affiliates: Any present or future legal entities that are directly or indirectly owned or controlled by First Data Corporation (or its successor entities) excluding Kohlberg Kravis Roberts & Co. or any of its portfolio companies other than First Data Corporation and its subsidiaries.
2.2 App: Any software, content or digital materials (including any bug fixes, updates, upgrades, modifications, enhancements, revisions, new releases or new versions of such software, content or digital materials) which are available for installation by you through the App Market.
2.2 App Agreement: The contract that is created between you and a Developer regarding an Installed App, which is comprised of the App Terms and the App Fees.
2.3 App Fees: The fees payable by you to a Developer for your use of the Developer's Installed Apps.
2.4 App Market: The electronic App Market operated by Clover or its Affiliates through which you may browse, locate or install Apps.
2.5 App Terms: A Developer's terms and conditions that govern your use of an Installed App.
2.6 Clover: Clover MarketPlace, LLC, a Delaware limited liability corporation, with its principal place of business at 5565 Glenridge Connector, NE, Atlanta, GA 30342.
2.7 Clover Platform: The proprietary cloud-based software platform of Clover or its Affiliates.
2.8 Developer: Any person who is authorized by Clover to distribute one or more Apps through the App Market.
2.9 Device: Any device that interoperates with the Clover Platform.
2.10 Installed App: An App that has been acquired through the App Market and installed by you.
2.11 Taxes: All taxes and similar charges and fees that are imposed by any governmental authority in connection with your purchase or subscription of an App.
3. Provision of the App Market
3.1 Payment Methods. Clover may make available various payment methods for you to purchase or subscribe to an App through the App Market. You must abide by any relevant terms and conditions or other legal agreement, whether with Clover or a third party, that governs your use of a given payment method. Clover may add or remove payment methods in its sole discretion and without notice to you.
3.2 Payment for Apps. You are solely responsible for the payment of all App Fees and Taxes (in each case, if any) for any App that you acquire and install through the App Market. By agreeing to the App Terms, you authorize Clover or its payment processor, CheckFreePay Corporation (including its subsidiaries CheckFreePay Corporation of New York and CheckFreePay Corporation of California), to charge the credit card, debit the debit card or facilitate any other payment method you have specified for all App Fees and Taxes payable with respect to such App, as and when such payments are due in accordance with the App Agreement for such App. Clover or Clover's payment processor will act as the Developer's agent in collecting the App Fees and Taxes from you. Payment by you to Clover or Clover's payment processor of the App Fees constitutes full and final settlement of such amounts by you to the Developer.
3.3 Electronic Payment Authorization. Payment of App Fees and Taxes made by you through the automated clearing house system ("ACH") will be electronically transmitted from the account at the financial institution you designate to pay for the App Fees and Taxes pursuant to these Terms. You agree that any such account designated by you will be an account primarily used for business purposes. You agree to be bound by the operating rules of the ACH and you authorize Clover to (a) access information from the account; (b) initiate debit and/or credit entries by wire or ACH transfer; and (c) instruct your financial institution to (i) block or to initiate, if necessary, reversing entries and adjustments for any original entries made to the account, and (ii) provide such access and to debit and/or credit or block the account.
3.4 Pricing. Clover will display the App Fees for each App in the App Market. App Fees and the availability of all Apps may be subject to change at any time.
4. Your Use of the App Market
4.1 Basic Use Requirements. To use the App Market, you will need a Device and working Internet access. Your ability to use and the performance of the App Market may be affected if those requirements are not met.
4.2 Prohibited Activities. You may not use any "deep-link", "robot", spider or other device or process to access, acquire, copy or monitor any portion of the App Market. You may not attempt to gain unauthorized access to any portion or feature of the App Market, or any other systems or network connection to the App Market, or to any services or Apps offered on or through the App Market by hacking, password "mining" or any other illegitimate means. You may not probe, scan or test the vulnerability of the App Market or any network connected to the App Market, nor breach the security or authentication measure on the App Market or any network or systems connected to the App Market. You may 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 of offered by or through the App Market, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the App Market. You may not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the App Market or Clover's networks or system. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the App Market, any App or any transaction being conducted on the App Market, or with any other person's use of the App Market or any App. Copying all or any part of the App Market or extracting data from the App Market (such as price lists using methods such as web scraping or any other means) is prohibited.
4.3 Third-Party Fees. You may incur access or data fees from third parties (such as your Internet provider and/or wireless carrier) in connection with your use of the App Market. For instance, you may incur such fees if you use services provided through the App Market on or through third-party services or devices. You are responsible for all such fees.
4.4 Updates. You may need to accept updates to the App Market software contained on your Device from time to time to continue your use of the App Market or individual Apps. Clover will install critical and non-critical software updates automatically on any and all of your Clover devices unless you indicate at the time of an attempted non-critical software installation that you wish to delay such non-critical software update. If you delay such update, Clover will re-attempt an update installation automatically at a later time.
4.6 Service Interruptions. When using the App Market, you may occasionally experience interruptions or downtime as a result of Internet issues beyond Clover's control, technical problems or App Market scheduled downtime. Clover will try to minimize these incidents but cannot guarantee that they will not occur. Clover will not be responsible for any losses arising out of any interruption of service or downtime.
4.7 Linking. Clover may from time to time include links to third party websites on the App Market. If you access those third party websites then the terms and conditions and privacy policies that apply to such third party website will be those on the third party website and not those that apply to the App Market.
5. Payment Terms and Refund Policy
5.1 All Transactions Final. Except as expressly set forth in Section 5.4 below (and subject to applicable law), all purchase or subscriptions of Installed Apps are final, and no returns, replacements or refunds are permitted. If a replacement, return or refund is granted for any purchase or subscription of an Installed App, the purchase or subscription transaction may be reversed, and you may no longer be able to access the Installed App.
5.2 Cancellations. If an App Agreement provides for an auto-recurring monthly subscription App Fee for an App, you may cancel that subscription at any time before the end of the applicable billing cycle, and the cancellation will become effective the following time period.
5.3 Subscription Price. When you subscribe to an App, you will be charged the App Fee that is applicable to the App at the time of your subscription.
5.4 Refunds. If you desire a refund of any App Fees, you must request such refund directly from the applicable Developer. If the Developer determines in its sole discretion to grant a refund, the Developer will provide such refund directly to you.
5.6 Removal or Unavailability of Apps. Subject to these Terms and any applicable App Agreement, Apps that you purchase or subscribe to will be available to you through the App Market for the period selected by you and as long as Clover has the right to make such App available to you. Clover reserves the right to remove any App from the App Market or your Device or cease providing you access to certain Apps at any time, subject to these Terms. If reasonably practicable, Clover will provide you with reasonable prior notice of any such removal or cessation of access.
5.7 Trial Periods and Free Apps. A Developer may allow you to use an Installed App free of charge or use a trial version of an Installed App with an option at the end of the trial period to obtain a full version of the Installed App for a fee. A Developer may impose limitations on your access and use of certain free and trial Installed Apps in its sole discretion.
6. Rights and Restrictions
6.1 No Public Performance. Unless permitted by Clover, you agree not to display content contained in the App Market in whole or in part as part of any public performance even if no fee is charged (except where such use would not constitute a copyright infringement). Use of a tool or feature provided as an authorized part of the App Market (for example, "Clover Community Recommendations") is permitted, provided that you use the tool or feature as specifically permitted and only in the exact manner specified and enabled by Clover.
6.2 Sale, Distribution or Assignment to Third Parties. Unless permitted by Clover or in connection with the sale of your business entity, you may not sell, rent, lease, redistribute, broadcast, transmit, communicate, modify, sublicense or transfer or assign your rights to use the App Market to any third party.
6.3 Capturing of Streams. Unless permitted by Clover, you may not use the App Market in conjunction with any stream-ripping, stream capture or similar software to record or create a copy of any App that is presented to you in streaming format through the App Market.
6.4 Sharing. You may not use the App Market as part of any service for sharing, lending or multi-person use, except as specifically permitted by these Terms and only in the exact manner specified and enabled (for example, through "Clover Community Recommendations").
6.5 Security Features. You may not attempt to, nor assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption that protect the App Market. If you violate any security feature, you may incur civil or criminal liability.
6.6 Proprietary Notices. You may not remove any watermarks, labels or other legal or proprietary notices included in any App, and you may not attempt to modify any App obtained through the App Market, including any modification for the purpose of disguising or changing any indications of the ownership or source of any App.
6.7 Limits on Access on Devices. Clover may at any time place limits on the number of Devices you may use to access any App, at Clover's discretion. Clover may record and store the unique device identifier numbers of your Devices in order to enforce such limits.
6.8 Advertising on the App Market. When using the App Market, you may receive advertising and promotional messaging which may be banners, pop ups or other forms of advertising.
7. Other Businesses.
The App Market provides links to the websites of certain other businesses. Clover is not responsible for examining or evaluating, and Clover does not warrant the offerings of, any of these businesses or individuals or the content of their websites. Clover does not assume any responsibility or liability for the actions, products, services and content of any third party.
8. Intellectual Property
8.1 You agree that the Clover Platform and the App Market, including but not limited to all text, graphics, user interfaces, editorial content, and software used to implement the App Market (including but not limited to the design, structure, selection, coordination, expression, "look and feel" and arrangement of such), contains proprietary information and material that is owned or licensed by Clover or its Affiliates and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the App Market in compliance with these Terms. No portion of the App Market may be reproduced in any form or by any means, except as expressly permitted in these Terms. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the App Market in any manner, and you will not exploit the App Market in any unauthorized way whatsoever.
8.2 Notwithstanding any other provision of these Terms, Clover reserves the right to change, suspend, remove, or disable your access to the App Market, content, or other materials comprising a part of the App Market at any time without notice. In no event will Clover be liable for making these changes. Clover may also impose limits on the use of or access to certain features or portions of the App Market, in any case and without notice or liability.
8.3 All right, title and interest (including copyrights) in and to the App Market (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources) and related software are owned by or licensed to Clover and its Affiliates, who reserve all rights in law and equity not expressly granted to you under these Terms. THE USE OF ANY PART OF THE APP MARKET OTHERWISE THAN IN ACCORDANCE WITH THESE TERMS IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
8.4 The Clover name, Clover logo, App Market, and other Clover trademarks, service marks, graphics, and logos used in connection with the App Market are trademarks or registered trademarks of Clover or its Affiliates in the U.S. and/or other countries. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks other than in respect of your use of the App Market.
9. Suspension and Termination.
If you fail, or Clover suspects that you have failed, to comply with any of the provisions of these Terms, Clover, at its sole discretion, without notice to you may temporarily or permanently preclude your access to the App Market (or any part thereof including any App). You will remain liable for all amounts due under your account up to and including the date of suspension or termination. If you fail to comply with any terms of an App Agreement, your right to use the applicable Installed App may be terminated by the Developer without notice and without refund to you.
10. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
10.1 CLOVER DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE APP MARKET OR ANY APP OBTAINED THROUGH THE APP MARKET WILL BE UNINTERRUPTED OR ERROR-FREE. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, AN APP IS AT YOUR SOLE RISK. THE APP MARKET IS PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
10.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT CLOVER, ITS AFFILIATES, ITS OR THEIR RESPECTIVE REPRESENTATIVES OR LICENSORS AND ANY ENTITY FROM WHOM YOU PURCHASED CLOVER SERVICES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, BUSINESS, REVENUE OR PROFITS OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE OPERATION OR PERFORMANCE OF THE APP MARKET WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CLOVER, ITS AFFILIATES, ITS OR THEIR RESPECTIVE REPRESENTATIVES OR LICENSORS OR ANY ENTITY FROM WHOM YOU PURCHASED CLOVER SERVICES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. UNDER NO CIRCUMSTANCES, WILL THE AGGREGATE LIABILITY OF CLOVER OR ITS AFFILIATES TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THESE TERMS OR YOUR ACCESS TO AND USE OF THE APP MARKET EXCEED THE AMOUNT OF TWO HUNDRED FIFTY DOLLARS ($250.00), REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
10.3 YOU AGREE THAT YOUR SUBMISSION OF INFORMATION IN CONNECTION WITH THE APP MARKET AND ANY APP IS AT YOUR SOLE RISK, AND CLOVER HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
10.4 CLOVER DOES NOT REPRESENT OR GUARANTEE THAT THE APP MARKET OR ANY APP WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND CLOVER DISCLAIMS ANY LIABILITY RELATING THERETO. YOU WILL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM, INCLUDING ANY APP OBTAINED FROM THE APP MARKET.
10.5 ALTHOUGH CLOVER PERFORMS AN INITIAL BACKGROUND CHECK OF THE DEVELOPERS AND APPS WITH A VIEW TO MAINTAINING THE HIGH STANDARDS OF THE APP MARKET AND USES TECHNIQUES THAT AIM TO VERIFY THE ACCURACY AND TRUTH OF THE INFORMATION PROVIDED BY THE DEVELOPERS, VERIFICATION ON THE INTERNET IS DIFFICULT. SUCH INFORMATION IS PROVIDED IN GOOD FAITH, SOLELY FOR YOUR 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, MORALITY OR LEGALITY OF ANY ASPECT OF THE APPS, THE TRUTH OR ACCURACY OF THE APPS, THE QUALIFICATIONS, BACKGROUND, OR IDENTITIES OF THE DEVELOPERS, OR THE ABILITY OF THE DEVELOPERS TO DISTRIBUTE THE APPS. YOU USE THE APP MARKET AT YOUR OWN RISK.
10.6 NOTHING IN THESE TERMS WILL LIMIT OR EXCLUDE THE LIABILITY OF CLOVER OR ITS AFFILIATES TO YOU FOR CAUSING DEATH OR PERSONAL INJURY THROUGH CLOVER'S NEGLIGENCE, FOR FRAUD BY CLOVER OR ITS AFFILIATES OR FOR ANY OTHER MATTER WHERE IT WOULD BE UNLAWFUL TO LIMIT OR EXCLUDE CLOVER'S LIABILITY.
11. Indemnity and Waiver.
YOU WILL INDEMNIFY AND HOLD HARMLESS CLOVER, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND ANY ENTITY FROM WHOM YOU PURCHASED CLOVER SERVICES FROM AND AGAINST ANY AND THIRD PARTY CLAIMS AS WELL AS ANY AND ALL LOSSES. LIABILITIES, DAMAGES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR BREACH OF THESE TERMS, (B) YOUR USE OF THE APP MARKET OR ANY APP OR (C) ANY ACTION TAKEN BY CLOVER AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THESE TERMS OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THESE TERMS HAS OCCURRED. YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM CLOVER, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND ANY ENTITY FROM WHOM YOU PURCHASED CLOVER SERVICES AS A RESULT OF CLOVER'S DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE APP MARKET AND ANY APP OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF CLOVER’S CONCLUSION THAT A VIOLATION OF THESE TERMS HAS OCCURRED. THIS INDEMNITY AND WAIVER PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THESE TERMS.
12. Changes to These Terms.
Clover reserves the right to make changes to these Terms at any time by publishing a revised version of these Terms in the App Market. The revised version of the Terms will take effect from the time at which it is first published. You will be subject to the Terms in force at the time that you use the App Market. Your continued use of the App Market indicates your acceptance of such updates and changes. You are advised to check the Terms from time to time for any updates or changes that may affect you. Clover last modified these Terms on the date stated at the beginning of these Terms.
13. Notices and Communications.
When you use the App Market or send emails to Clover, you are communicating with Clover electronically. Clover will communicate with you by e-mail or by posting notices in the App Market. You consent to receive notices and communications from Clover electronically and you agree that all notices and communications that Clover provides you electronically satisfy any legal requirement that such communications are in writing, unless mandatory applicable laws specifically require a different form of communication. All notices that you are required or desire to give to Clover must be in writing and given by overnight mail (e.g., FedEx) to Clover, 415 North Mathilda, Sunnyvale, CA 94085 Attn: IP Officer and will be deemed received by Clover on the next business day after being deposited with an overnight carrier.
These Terms and the information referred to in the specific URLs referenced in these Terms constitutes the entire and complete legal agreement between you and Clover regarding its subject matter, and completely replaces any prior or contemporaneous agreements or understanding, written or oral, between you and Clover regarding its subject matter. A failure by Clover to enforce any right or provision of these Terms will not constitute a waiver by Clover of future enforcement of that right or provision or any other right or provision. If any provision of these Terms is held to be invalid or unenforceable, the provision will be inoperative only to the extent necessary and will be severed from the remainder of these Terms. The remaining provisions of the Terms will remain in full force and effect. Except for Affiliates of Clover, no Persons will be third party beneficiaries to these Terms. You may not assign or transfer any of your rights and obligation under these Terms, in whole or in part, by operation of law or otherwise, without the prior written approval of Clover. You will enter into any documents required by Clover to effectuate an assignment or transfer by Clover of its rights and obligations under these Terms. These Terms, their subject matter and their formation are governed by the laws of the State of New York without regard to its conflicts of laws provisions. You and Clover will submit to the non-exclusive jurisdiction of the courts located within the county of Suffolk, New York to resolve any legal matter arising from these Terms. Notwithstanding the preceding sentence, Clover will have the right to obtain an injunction or other equitable, remedies in any jurisdiction, for any breach of these Terms related to Clover's Intellectual Property Rights. You acknowledge and agree that it is your responsibility to ensure that your use of the App Market and all Apps is in accordance with all applicable laws and regulations. The obligations set forth in Sections 3.2, 3.3, 4.2, 4.5, 4.8, 5.1, 5.4, 5.6, 6.1 through 6.6, and Articles 2, 7 through 11, and 14 will survive any termination.