Effective: July 12, 2023

These Terms set out the terms and conditions that govern your use of the Clover API and your use of the App Market to publish and/or allow the installation of each of your Apps.

These Terms are made up of several Parts:

• Part I applies worldwide;
• Part II applies to the App Market in the US; and
• Part III applies to the App Market in the UK and the European Union; and
• Part IV applies to the App Market in Canada.

By clicking to accept these Terms:

• you agree to be bound by these Terms, and a Contract is created between you (or the entity you represent), Clover and (if applicable) a third party payment processor, that comprises these Terms and the Clover App Market Developer Program Policies;
• if you are agreeing to be bound by these Terms as an individual, you represent and warrant to Clover that you are of the legal age of majority in the jurisdiction in which you reside and have the right and authority to agree to these Terms;
• if you are agreeing to be bound by these Terms on behalf of your employer or other entity, (a) you represent and warrant to Clover that you have legal authority to bind that entity to these Terms; and (b) the “Developer” will refer to your employer or other entity and will include the employees of your employer or other entity; and
• you represent and warrant to Clover that you are not barred or otherwise legally prohibited from accessing or using the App Market.

If you do not have such authority, or if you do not check the box to indicate that you accept these Terms, you must not access or use the Clover API and you will not be able to publish your Apps in the App Market.

Please refer to the Part of these Terms that applies to the App Market in the relevant jurisdiction(s) for further details on whether a third party payment processor is involved in the collection and remittance to you of the App Fees.

All capitalized terms used in these Terms shall have the meanings set out in Section 26.

PART I – TERMS APPLICABLE TO ALL JURISDICTIONS

1. THE APP MARKET

1.1 The App Market is operated by the Clover entity that is identified in the Part of these Terms that applies to the App Market in the relevant jurisdiction(s).

1.2 The App Market acts as a venue to allow Merchants to browse, locate and install Apps. Accordingly, you acknowledge that:

1. Clover is not responsible and does not have any liability for any App in the App Market, other than the Apps for which Clover is the Developer;
2. there is no guarantee of any revenue or level of sales of any App or any commitment by Clover to market or promote your App;
3. the form and nature of the App Market that Clover provides may change from time to time without prior notice to you;
4. Clover may at its sole discretion, and without prior notice to you, stop (permanently or temporarily) providing the App Market (or any features within the App Market) to you and the Merchants or prohibit or restrict your use of the App Market.

1.3 Clover may perform maintenance in the App Market from time to time that may result in service interruptions, delays or errors. Clover will not be liable for any such interruptions, delays or errors. You agree that Clover may contact you in order to assist you with the App Market and to obtain information needed to identify and fix any errors.

2. YOUR USE OF THE APP MARKET

2.1 You may only use the Clover API and distribute Apps via the App Market in accordance with these Terms and the Clover App Market Developer Program Policies, as updated by Clover from time to time in its sole discretion and accessible at www.clover.com.

2.2 You represent and warrant and must ensure that:

1. you and your Apps comply with (i) all Applicable Laws, (ii) the Card Association Rules, (iii) data security requirements and standards, (iv) your agreements with Merchants, including, without limitation, any terms of service or use and data protection agreements; (v) all applicable third party contracts or terms of service or use; and (vi) your own privacy policy and all public-facing representations regarding privacy and data security that you have made;
2. a Merchant’s use of your App in accordance with any standard instructions that you may make available to the Merchant will not violate Applicable Laws or cause the Merchant to violate Applicable Laws; and
3. you will not do or fail to do, or cause or permit anything to be done or omitted to be done, in respect of all of the personal data to which these Terms relates, that may cause or otherwise result in a breach of the Applicable Laws by Clover.

2.3 You are solely responsible for:

1. your acts and/or omissions in connection with the App Market (including any resulting loss or damage that Clover may suffer); and
2. any breach or failure to comply with your obligations under the Contract, and the consequences thereof (including any resulting loss or damage that Clover or any third party may suffer).

2.4 You shall not advertise products or services that are competitive with Clover’s services (or those of its affiliates) to Merchants.

3. PUBLICATION OF YOUR APPS IN THE APP MARKET

3.1 To publish an App in the Market Place you must:

1. obtain validation by Clover of your Developer Account;
2. obtain approval from Clover of your App, including the submission and approval of the App Terms, the privacy policy that applies to your App, the App Fees and any additional or supporting information for the App as required; and
3. provide details for your Payment Account if you will be charging App Fees for your App.

Any validations or approvals may be withheld by Clover in its sole discretion.

3.2 Upon successful completion of the validation and approval steps set out in Section 3.1, you will be able to publish your App together with the App Terms, the privacy policy that applies to your App and App Fees in the App Market. Clover reserves the right in its sole discretion to refuse to allow the publication of any App in the App Market. Quality assurance charges or other fees may apply.

3.3 Clover reserves the right to display the Published App in the App Market in a manner as determined by Clover at its sole discretion and to change the manner that the Published App is displayed in the App Market from time to time.

3.4 Clover may allow those Merchants that have installed the Published App to rate it in the App Market. The App Market may also assign a Composite Score for any Published App that has not received ratings from the Merchants. A “Composite Score” is a representation of the quality of your Published App based on your history in the App Market and will be determined at Clover’s sole discretion. If you do not have a history in the App Market, Clover may use or publish performance measurements such as uninstall and/or refund rates, in its sole discretion. Clover may identify or remove Apps that are not meeting acceptable standards, as determined by Clover, in its sole discretion.

3.5 You may contact Clover at appmarket@clover.com if you have any questions or concerns regarding ratings or placement of your Published App.

3.6  If you represent that your Published App has received third party certification, been audited by a third party, or make any similar claim, you must provide Clover with evidence supporting such representations to Clover’s reasonable satisfaction. Clover may remove your Published App from the App Market, require you to refrain from making such representations, or take other appropriate steps in its sole discretion, if you cannot provide sufficient evidence to support your representations.

3.7 You shall take all industry standard measures to prevent fraud against cardholders, merchants, Clover, and other third parties. Industry standard measures will be deemed to include the use of CAPTCHA (or industry standard equivalent solution) on any payment pages. You shall also capture the IP address of all users of your App and transfer the same to Clover. You will be liable to Clover for: (i) losses arising from any failure of yours to adhere to the standards in this Section; (ii) your failure to comply with any other applicable industry standard such as PCI-DSS; and (iii) all losses arising from your App's failure to detect and deter fraudulent activity on your App. You acknowledge and agree that you have a responsibility to prevent card running (also known as card testing), which is fraudulent activity where a person tries to determine whether stolen card information is valid so that they can use it to make purchases. If a merchant suffers from card running (such as in the form of incurred authorization fees), in addition to all other rights Clover has against you, without notice to you, Clover may: (i) reimburse such Merchant for such losses, and (ii) impose such reimbursed losses on you by issuing an invoice to you (payable by you on receipt) or by withholding any Transaction Fee otherwise due to you to set-off the amounts for which Clover has reimbursed merchants.

4. MANAGEMENT OF PUBLISHED APPS IN THE APP MARKET

4.1 You acknowledge that if at any time you change the App Fees for your Published Apps, such change will not apply to any of the Installed Apps.

4.2 Clover may remove a Published App from the App Market at any time with immediate effect if:

• Clover determines in its sole discretion that any information provided by you regarding the Published App is not true, accurate, current and/or complete; and/or
• Clover requires you to uninstall one or more Installed Apps pursuant to Section 7.5.

4.3 You must not use any data (a) collected through your Installed Apps or (b) disclosed to you by Clover under these Terms, in any other marketplace or any offerings that are competitive to the App Market.

5. YOUR APP TERMS

5.1 You may, at your sole discretion, determine the App Terms for each of your Apps, subject to this Section 5 and Section 7.5 below.

5.2 Your App Terms must: (a) comply with the Applicable Laws of the jurisdiction(s) in which your App is to be published in the App Market; and (b) not materially conflict with these Terms.

5.3 Your App Terms must not state or suggest in any way that Clover or any of its Affiliates is (a) a party to the App Agreement; or (b) the licensor or provider of your App; and/or (c) liable to a Merchant in any way with respect to the Merchant’s use of the App.

5.4 Prior to amending or replacing your App Terms, you must submit the proposed amended or replacement App Terms to Clover for approval before publishing such App Terms or otherwise making them available via the App Market.

6. INSTALLED APPS

6.1 If a Merchant installs a Published App, an App Agreement is created between you and the Merchant for the use of that App when the Merchant clicks the button to accept the App Terms. The App Agreement comprises the App Terms and the App Fees as specified in the App Market at the time of such installation. Clover is not a party to the App Agreement.

6.2 As between you and Clover, You are solely responsible for each Installed App, including the support and maintenance of the Installed App, and for any complaints related to the Installed App. Your failure to provide adequate support and maintenance for your Apps may result in negative consequences, such as low App ratings, less prominent product exposure via the App Market, low sales or billing disputes. Clover will, on your behalf, provide basic information in the App Market about your Published App, including support contact information. Clover will direct Merchants to you when App support related questions are presented to Clover. Upon our request, you will promptly provide responses to technical questions from our technical support team. If Clover becomes aware of and subsequently notifies you about any security vulnerabilities, bugs, or errors in the Installed App, you must promptly issue an update of the App as soon as reasonably practicable.

7. UPDATING, UN-PUBLISHING AND SUN-SETTING APPS

7.1 You may update an Installed App at any time with another version of the Installed App; provided that such updated version is approved in advance by Clover.

7.2 You may un-publish a Published App at any time.

7.3 If you wish to sunset an Installed App (i.e., discontinue making an Installed App available to existing and future Merchants), you must provide Clover with at least seven (7) days’ prior notice. You acknowledge that sun-setting an Installed App does not discharge any liability you may have to each of the respective Merchants under their App Agreement with you.

7.4 Clover is not under any obligation to maintain copies of any Installed Apps that you have sunsetted or for which all App Agreements have been terminated. However, Clover may retain copies of any Installed App as reasonably required (a) for archival purposes, (b) in accordance with Clover’s standard business retention practices, and (c) by the Applicable Laws.

7.5 Notwithstanding that Clover is not a party to the App Agreement and that Clover does not have any obligation to monitor the Installed App or its content, Clover, in its sole discretion, may require you to terminate your App Agreement for an Installed App or take other appropriate corrective actions, in Clover’s sole discretion, if Clover is notified by you or otherwise becomes aware and determines, in its sole discretion, that:

1. any information provided by you regarding the Installed App is not true, accurate, current and/or complete; or
2. the Installed App or any part thereof (i) may infringe or otherwise violate the Intellectual Property Rights or any other rights of any third party; (ii) violates any Applicable Laws, Card Association Rules or is subject to an injunction; (iii) violates the Clover App Market Developer Program Policies; (iv) is being distributed by you in a manner that is in breach of these Terms; (v) may create liability for Clover; or (vi) is deemed by Clover to have a security vulnerability, virus, or to be malware or spyware, or otherwise have an adverse impact on Clover’s or a Merchant’s systems.

8. APP FEES PAYABLE BY MERCHANTS

8.1 Your App Fees may consist of (i) an auto-recurring monthly subscription fee, (ii) a pay per action fee; (iii) a combination of multiple fee subscription tiers and/or pay per action fees; or (iv) no fee.

8.2 All App Fees must be collected and processed via the App Market.

8.3 You are responsible for directly dealing with, and, at your sole discretion, providing refunds to, Merchants who may request a refund of the App Fees. So long as a refund is requested by a Merchant by the end of the 28th day of the calendar month following the month in which the Merchant paid the App Fees, the Clover developer portal will enable you to provide a full refund of such amount.

8.4 You are responsible for monitoring and determining via the Clover API whether the status of the Merchant Payment Details for each Merchant is active. You may add and maintain the necessary functionality in your App(s) to modify or reduce the functionality of, or to discontinue access by a Merchant to, an Installed App if the Merchant Payment Details for any Merchant have expired or are declined for any other reason.

8.5 If you modify, reduce or discontinue the functionality of an Installed App of any Merchant whose Merchant Payment Details have expired or are declined for any other reason, you must monitor the Merchant Payment Details via the Clover API(s) so that when the Merchant updates its Merchant Payment Details, you will ensure that the original level of service and functionality of the Installed App are resumed within a short period of time.

8.6 You acknowledge that if you permit a Merchant whose Merchant Payment Details have expired or been declined for any other reason to continue to use an Installed App, you will only receive a Remittance Amount for those App Fees that are actually collected from such Merchant. Clover will send periodic emails to such Merchant to remind it to update its Merchant Payment Details. After the Merchant has updated its Merchant Payment Details, further attempts will be made to collect all due and outstanding App Fees.

9. FEES PAYABLE BY YOU

9.1 You acknowledge and agree that the overriding principle of the App Market is that any revenue derived from the Installed Apps (including any subscriptions, in-App features, add-ons, extras or the like) is subject to a Transaction Fee.

9.2 In consideration of the services provided to you by Clover under these Terms:

1. you will pay to Clover a transaction fee equivalent to thirty percent (30%) of the Net Revenue for each Installed App (the “Transaction Fee”); and
2. Clover reserves the right, in its sole discretion and upon prior notice to you, to charge you a distribution fee for any Installed Apps that are installed by Merchants for free (the “Distribution Fee”).

9.3 Clover reserves the right to amend the amount of the Transaction Fee and/or the Distribution Fee from time to time upon prior written notice to you.

9.4 Clover will calculate the Transaction Fee and Distribution Fee in the currency of the Gross Revenue.

9.5 Clover will calculate the total amount of Developer Taxes due from you under these Terms and you must provide all information necessary for Clover to compute and remit such Developer Taxes to the appropriate taxing authority. You will be responsible for paying any underpayment of Developer Taxes (including any penalties or interest) and collecting any refunds from the appropriate taxing authority.

9.6 You authorize the deduction of the Transaction Fee, Distribution Fee and Developer Taxes from the Net Revenue.

10. COLLECTION AND REMITTANCE OF APP FEES TO YOU

10.1 Please refer to the Part of these Terms that applies to the App Market in the relevant jurisdiction(s) for provisions regarding the collection and remittance of the App Fees to you.

11. REPORTING AND DISPUTES

11.1 Clover will make available to you via the Clover developer portal information about pending and billed App Fees and number of installations of your App.

11.2 You must notify Clover in writing promptly and in any event within thirty (30) days from the date that you receive a Remittance Amount of any amounts that you reasonably dispute. After such thirty (30) day period, the Remittance Amount may not be disputed. You and Clover will attempt in good faith to resolve any such disputes within thirty (30) days following our receipt of your dispute notice. Any amounts so disputed and subsequently mutually agreed will be paid to the appropriate party promptly following the reaching of such agreement.

12. INTELLECTUAL PROPERTY RIGHTS

The Clover API

12.1 Subject to the license in Section 12.2, all Intellectual Property Rights in the Clover API will remain vested in Clover.

12.2 Clover hereby grants to you a non-exclusive, non-transferable, non-sublicensable and revocable license:

1. to use the Clover API solely on computers owned or controlled by you; and
2. to use the Clover API solely to integrate your Apps with the Clover Platform to enable your Apps to be Published and installed in the Territory via the App Market; and

12.3 Without limiting the generality of Section 12.2, you must not:

1. use, modify, adapt, reformat or reproduce the Clover API or any portion thereof, except as expressly permitted under these Terms;
2. distribute, sublicense, assign, transfer or otherwise make available the Clover API to any third party without the prior written consent of Clover;
3. use or access the Clover API to monitor the availability, performance or functionality of the App Market or for any other benchmarking or competitive purposes;
4. interfere with, bypass, or disable any features or functionality that is embedded in or included with the App Market or the Clover API; or
5. use the Clover API in any unlawful manner, for any unlawful purpose or in any manner inconsistent with these Terms.

12.4 Clover reserves the right to suspend or discontinue your access to the Clover API at any time, at Clover’s sole discretion, with or without prior notice.

12.5 Clover may, in its sole discretion, release subsequent releases or versions of the Clover API and require you to obtain and use such current releases or versions, which may result in you needing to make updates to your software, your Apps or supporting services.

License to use the Apps

12.6 Subject to the license in Section 12.7, all Intellectual Property Rights in your Apps will remain vested in you.

12.7 You hereby grant to Clover a limited, non-exclusive, royalty-free, worldwide license:

1. to publish and enable the installation of your Apps via the App Market; and
2. to use, copy, perform and display your Apps for initial vetting, quality assurance, technical and security review, administrative and demonstration purposes in connection with the operation and marketing of the App Market

12.8 The license rights granted under Section 12.7 may be exercised by employees, subcontractors, consultants, representatives and agents of Clover and its Affiliates.

Brand Features

12.9 Subject to the licenses in Sections 12.10 and 12.12, all Intellectual Property Rights in your Brand Features will remain vested in you only and all Intellectual Property Rights in the Clover Brand Features will remain vested in Clover only.

12.10 You hereby grant to Clover a limited, non-exclusive, royalty-free, worldwide license to use, display or include, as applicable, your Brand Features that you submit to Clover:

1. for use (i) on Devices in connection with the distribution of your App via the App Market; (ii) within the App Market; (iii) in online or mobile communications outside the App Market when mentioned along with other Apps available in the App Market; (iv) when making announcements of the availability of your App online or on Devices; (v) in marketing presentations; (vi) in developer or app lists that appear Clover’s website or elsewhere online or on the Devices; and
2. to otherwise market your App or fulfill our obligations under these Terms.

12.11 The license rights granted under Section 12.10 may be exercised by employees, subcontractors, consultants, representatives and agents of Clover and its Affiliates.

12.12 Clover hereby grants to you a non-exclusive, non-transferable, non-sublicensable, royalty-free, worldwide and revocable license to use, display or include, as applicable, Clover’s Brand Features, photos or other marketing materials made available to you through the “Developer Community” section on clover.com pursuant to the terms and conditions posted on such website. Use of the Clover brand must follow the Clover Branding Guidelines which are available at https://www.clover.com/media-resources.

13. REPRESENTATIONS AND WARRANTIES

13.1 You represent and warrant to Clover that:

1. you own or have obtained valid licenses of all Intellectual Property Rights that are necessary to the performance of any of your obligations under these Terms and each of the App Agreements;
2. Clover’s use of any of your Apps in accordance with the license granted pursuant to Section 12.7 and the use by the Merchants of any of your Apps in accordance with the relevant App Terms, will not in any way constitute an infringement or other violation of any Intellectual Property Right of any third party;
3. all information that you provide (including the information provided for the Developer Account, listings of the Apps and any content that you upload) is true, accurate, current and complete, and that you will keep it up-to-date and accurate at all times;
4. you will, and you will ensure that your Apps will, comply with (i) all Applicable Laws, (ii) the Card Association Rules, (iii) data security requirements and standards, and (iv) all applicable third party contracts or terms of service or use; and you will ensure that your Apps enable Merchants to comply with all Applicable Laws;
5. you will not do or omit to do, or cause or permit anything to be done or omitted to be done, in respect of any personal data processed in connection with this Agreement or an App, that may cause or otherwise result in a breach of the Data Protection Laws by Clover or a Merchant; and
6. you are (i) 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) not listed on any U.S. Government list of prohibited or restricted parties.

14. DISCLAIMERS

14.1 THE CLOVER API, THE APP MARKET AND ANY MATERIAL INSTALLED OR OTHERWISE OBTAINED THROUGH USE OF THE APP MARKET, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE CLOVER API, THE APP MARKET AND ANY MATERIAL INSTALLED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP MARKET IS AT YOUR OWN DISCRETION AND SOLE RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE, OR ANY LOSS OF DATA OR REVENUE THAT RESULTS FROM SUCH USE OR INABILITY TO USE. CLOVER FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND CONDITIONS OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR THAT THE APP MARKET WILL FUNCTION UNINTERRUPTED OR ERROR-FREE, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

14.2 YOUR SUBMISSION OF INFORMATION IN CONNECTION WITH THE APP MARKET AND ANY CLOVER API 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.

14.3 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.

15. LIMITATION OF LIABILITY

15.1 Please refer to the Part of these Terms that applies to the App Market in the relevant jurisdiction(s) for these provisions.

16. INDEMNIFICATION

16.1 You will defend, indemnify and hold harmless Clover, its Affiliates, its or their respective representatives or licensors and Clover distribution partners from and against any and all third party claims, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees), and enforcement action by any applicable data protection authority or other regulator, arising out of or in connection with:

1. your use of the Clover API or the App Market to publish and/or allow the installation of your Apps;
2. your violation of these Terms or Applicable Laws;
3. any assertions that any of your Apps infringes any Intellectual Property Right of a third party or defames any Person or violates their rights of publicity or privacy;
4. the breach by any of the Published Apps and/or Installed Apps of the Clover App Market Developer Program Policies;
5. your material breach of an App Agreement in respect of any of the Installed Apps
6. your failure to maintain reasonable security in connection with your App, your use of the Clover API or the App Market
7. any data breach, information security incident, or similar, arising from your action or inaction; and/or
8. such other indemnification obligations as may be stated in the Part of these Terms that applies to the App Market in the relevant jurisdiction(s) in which your App is or will be made available.

17. AUDIT

17.1 Upon at least thirty (30) days’ prior notice to you (or within a shorter time period if required by a card association or regulator), you will allow Clover and Clover’s agents (the “Authorized Auditor”) to enter your business premises to conduct an audit to confirm your compliance with these Terms. As part of the audit you will allow the Authorized Auditor to have access to your computing systems and business processes, to review, examine or audit (including making copies as reasonably necessary of) your source code, books or records related to your Apps (including your use of the Clover API), and to interview staff members, in all cases, as necessary for that purpose (“Audit”).

17.2 You will cooperate and provide the Authorized Auditor with reasonable assistance and access to any information reasonably requested by the Authorized Auditor during an Audit. Without limiting the foregoing, the Authorized Auditor may furnish you with a questionnaire related to your computing systems and/or Apps, and you must fully and accurately complete such questionnaire, and return it to the Authorized Auditor within forty-five (45) days of receipt. The Authorized Auditor’s use of a questionnaire will not limit the ability of the Authorized Auditor to conduct an Audit as provided above. Clover will provide you with a summary of any findings or reports that the Authorized Auditor issues following the Audit.

17.3 If after conducting an Audit the Authorized Auditor reasonably determines that you circumvented the requirement that all App Fees are to be processed via the App Market or that you have otherwise breached these Terms, you will pay to Clover any underpaid amounts and any reasonable out-of-pocket costs incurred by the Authorized Auditor to undertake such Audit within forty-five (45) days following the completion of such Audit.

18. DATA PRIVACY

18.1 You will comply with all Data Protection Laws. Except as otherwise expressly agreed, you agree that you will act in the role of a service provider or processor (as such terms are defined by applicable Data Protection Laws) to Merchants.

18.2 You must not use, and you must not authorize or permit a third party to use, User Data, consumer information, or any other customer information obtained from (a) the App Market for any purpose outside of the App Market; or (b) the operation of your App for any purpose other than providing your App to the specific Merchant that installed the App.

18.3 Protection of Personal Data. You must protect the privacy and legal rights of Merchants, their Users, and consumers, as applicable and provide reasonable security for the personal data that you maintain. If Clover, the Merchants and their Users provide you with, or your App accesses or uses, User names, passwords, or other login information or Personal Data of or regarding the Merchants or their Users (collectively, “User Data”) or you provide the same to Clover, you must clearly and conspicuously make the Merchants (and their Users) aware that their User Data will be accessed or used by you (and the App or Clover as applicable). You must post a Privacy Policy within the App Market and make the Privacy Policy publicly available via your website. The Privacy Policy must comply with Applicable Laws and the Clover App Market Developer Program Policies

18.4 Use of Personal Data. You may use Merchant Data, User Data, and consumer data with regard to your App only for the limited purposes for which the Merchants (and their Users or consumers, as applicable) have given you permission or consent, unless otherwise required or permitted by law. You agree that except as permitted in these Terms, you will not sell, disclose or otherwise share any consumer data, Merchant data, or User Data obtained via the App Market or in connection with the operation of your App to or with any third parties. Where applicable, you agree that you will not sell (as such term is defined by Data Protection Laws) any consumer data, Merchant data, or User Data. Where you engage a third-party service provider to perform services for you with respect to your App, you agree to (a) impose upon such third-party appropriate confidentiality and data use restrictions substantially similar to those in these Terms, (b) restrict the third party’s data usage to the sole purpose of performing services on behalf of your App, (c) require the third party to comply with privacy and data protection laws, and (d) provide reasonable assistance to enable you to meet your legal obligations pertaining to privacy and data protection, including those contained in this Agreement. You shall limit access to Merchant Data, User Data, and consumer data to your employees, agents, consultants, subcontractors or other third parties that have a need to know the Personal Data as a condition to your performance of services for or on behalf of Merchant or Clover, as applicable. You may not circumvent any privacy features that are part of the Device or App Market.

18.5 Restricted Data. Unless you have received prior written consent to do so from Clover, Merchant may not use the Services to (a) process personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership; or genetic data, biometric data, data concerning health, or data concerning a natural person’s sex life or sexual orientation or relating to criminal convictions and offences or related security measures; or (b) upload or incorporate, process transactions involving, or otherwise provide Clover with, any “protected health information” within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”).

18.6 Information Security. You agree to maintain and implement an information security program that includes technological, physical, administrative and procedural safeguards designed to (i) ensure the confidentiality, security, integrity and availability of User Data; (ii) protect against any anticipated threats or hazards to the security and integrity of User Data; and (iii) protect against any Information Security Incident. An “Information Security Incident” means any actual or reasonably suspected: (i) loss or theft of Merchant Data, User Data, or consumer data; or (ii) unauthorized use, disclosure, acquisition of or access to, or other unauthorized processing of Merchant Data, User Data, or consumer data that reasonably may compromise the privacy or confidentiality of such data; or (iii) unauthorized access to or use of, inability to access, or malicious infection of, any Clover or Merchant information system, including the Device, that reasonably may compromise the privacy or confidentiality of Personal Data. If you store, or are responsible for the storage of, User Data or consumer data, then you must store such User Data or consumer data securely and only for as long as it is reasonably needed for the purposes for which a Merchant installed your App. Without limiting the foregoing, you agree that you will permanently and securely delete any consumer data, Merchant data, or User Data you have stored, or arranged to be stored, when a Merchant uninstalls or discontinues its use of your App, after providing such Merchant with a reasonable amount of time to obtain any such consumer data, Merchant data, or User Data, as applicable. Notwithstanding the foregoing, if a Merchant has entered into a separate agreement with you that allows you to store or use consumer data, Merchant data or User Data directly related to your App (not including other products or Apps), then the terms of that separate agreement will govern your use of such data.

18.7 Clover’s Data Collection and Use. Clover may collect certain data or usage statistics from the App Market and Devices and information related to Installed Apps. Clover may also from time to time request that you provide Clover with data or usage statistics relating to your App. Clover may use and disclose such information as permitted by law. To the extent personal data is included in the usage statistics, Clover will handle that personal data in accordance with its Privacy Notice, accessible at https://www.clover.com/privacy-policy. To ensure the improvement of Apps, limited aggregate data may be available to you upon written request.

18.8 Information Security Incidents. If an Information Security Incident arises from or occurs in connection with your App, you must promptly notify Clover and Merchant thereof, take steps to contain and control any unauthorized access to or misuse of consumer data, Merchant Data, and User Data and continue to provide information relating to the investigation and resolution of the data security compromise until Clover determines that the data security compromise has been resolved.

18.9 Cooperation. You agree to provide reasonable assistance to Clover and Merchant to help either party comply with their respective privacy or data protection legal obligations, or defend against any claims or investigations, in either case, in any way related to your App. You shall promptly notify Clover in writing if you cannot comply with your obligations under these Terms, in which case you and Clover shall use best efforts to remedy the situation.

18.10 You agree that Clover, its affiliates and its third party subcontractors and/or agents, may use, in addition to any live agent calls, an automatic telephone dialing system, an artificial or pre-recorded voice, or both, to contact you at the telephone number(s) you have provided, and/or may leave a detailed voice message if you are unable to be reached, even if the number provided is a cellular or wireless number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes. You consent to receiving commercial electronic messages, including e-mail messages, SMS and text messages, and telephone calls, from Clover, its affiliates and its third party sales contractors and/or agents.

18.11 If your App is or will be made available, or you and / or the Merchant are established in, the United Kingdom or European, please see Part III, section 6, of these Terms for additional privacy and data protection obligations. If your App is or will be made available in Canada, please see Part IV, section 5, of these Terms for additional privacy and data protection obligations.

19. CONFIDENTIAL INFORMATION

19.1 You may only use Confidential Information to the extent necessary for your use of the Clover API or the App Market in accordance with these Terms and to fulfil your obligations under these Terms. You may only disclose Confidential Information to employees who (a) have a need to know or have a need to access to Confidential Information in order to carry out the purposes contemplated under these Terms, and (b) have executed a nondisclosure agreement with terms substantially similar to those set out in this Section 19.

19.2 The obligations set out in Section 19.1 will not apply to the extent that any Confidential Information:

1. is or becomes public knowledge without your fault or action;
2. is received by you from a third party who received and disclosed the information without violation of any confidentiality restriction;
3. is independently developed by you without use of or access to any Confidential Information; or
4. must be disclosed pursuant to the Applicable Laws.

20. TERM AND TERMINATION OF THE CONTRACT

20.1 You may terminate the Contract at any time upon providing Clover with thirty (30) days’ prior notice.

20.2 Clover may at any time terminate the Contract for any reason or no specific reason upon notice to you.

20.3 If the Contract is terminated for any reason other than your breach:

1. the termination of the Contract will not prejudice the App Agreements for each of the Installed Apps that will continue with full force and effect; and in respect of each of the Installed Apps until the App Agreement for each such Installed App expires or is terminated, all relevant provisions of the Contract shall continue to apply; and
2. you will no longer have any right for Apps to be published in the App Market, and all Published Apps will be removed from the App Market at the discretion and timing of Clover; and
3. the license granted to you under Section 12.12 to use the Clover Brand Features will terminate with immediate effect.

20.4 Upon the termination of the last App Agreement for an Installed App following termination of the Contract for any reason other than your breach:

1. Clover will terminate your Developer Account and you will no longer have the right to access or use your Developer Account;
2. the license granted to you under Section 12.2 to use the Clover API will terminate with immediate effect and you must immediately cease all use of the Clover API;
3. any and all amounts outstanding and any unpaid amounts due and owed under the Contract will become immediately due and payable;
4. you must promptly return to Clover any loaned Clover hardware devices in your possession or control;
5. you must promptly and securely return to Clover (or at Clover’s request destroy) all hard copies and permanently and securely delete from all of your computer equipment all electronic copies of all Confidential Information in your possession or control, and you must provide Clover with written certification, signed by one of your officers, certifying to the return, destruction or deletion, as relevant, of such Confidential Information;
6. Clover may retain copies of your Installed Apps as reasonably required (i) for archival purposes, (ii) for Clover’s standard business retention practices, and (iii) by the Applicable Laws;
7. please refer to the Part of these Terms that applies to the App Market in the relevant jurisdiction(s) for any additional provisions; and
8. neither party will have any further right or obligation with respect to the other party except as set out in this Section 20.4 and in the following Sections that will survive the termination of the Contract:

• Part I – Terms applicable worldwide
• Section 13 – Representations and Warranties
• Section 14 – Disclaimers
• Section 15 – Limitation of liability
• Section 16 – Indemnification
• Section 17 – Audit
• Section 18 – Data privacy
• Section 19 – Confidential Information
• Section 24 – Governing law and jurisdiction
• Section 25 – General
• Part II – Terms applicable to the App Market in the US
• Section 4 – Limitation of liability
• Section 5 – Data privacy
• Section 7 – Governing law and jurisdiction
• Section 8 – General
• Part III – Terms applicable to the App Market in the UK and Ireland
• Section 3 – Limitation of liability
• Section 5 – Data privacy
• Section 9 – Governing law and jurisdiction
• Section 10 – General
• Part IV – Terms applicable to the App Market in Canada
• Section 4 – Limitation of liability
• Section 5 – Data privacy
• Section 7 – Governing law and jurisdiction
• Section 8 – General

20.5 The termination of the Contract for any reason will not prejudice or affect the accrued rights, remedies obligation or liabilities of the parties existing at termination.

20.6 If Clover terminates the Contract as a result of your breach, then upon termination of the Contract:

1. Clover will terminate your Developer Account and you will no longer have the right to access or use your Developer Account;
2. the licenses granted to you under Section 12.2 regarding the Clover API and under Section 12.12 regarding Clover’s Brand Features will terminate with immediate effect and you must immediately cease all use of the Clover API and Clover’s Brand Features;
3. you must ensure that all App Agreements for the Installed Apps automatically terminate with immediate effect;
4. any and all amounts outstanding and any unpaid amounts due and owed under the Contract will become immediately due and payable;
5. you must promptly return to Clover any loaned Clover hardware devices in your possession or control;
6. you must promptly and securely return to Clover (or at Clover’s request destroy) all hard copies and permanently and securely delete from all of your computer equipment all electronic copies of the Confidential Information in your possession or control, and you must provide Clover with written certification, signed by one of your officers, certifying to the return, destruction or deletion, as relevant, of such Confidential Information;
7. Clover may retain copies of your Installed Apps as reasonably required (i) for archival purposes, (ii) in accordance with Clover’s standard business retention practices, and (iii) by the Applicable Laws; and
8. neither party will have any further right or obligation with respect to the other party except as set out in this Section 20.6 and in the following Sections that will survive the termination of the Contract:

• Part I – Terms applicable worldwide
• Section 13 – Representations and Warranties
• Section 14 – Disclaimers
• Section 15 – Limitation of liability
• Section 16 – Indemnification
• Section 17 – Audit
• Section 18 – Data privacy
• Section 19 – Confidential Information
• Section 24 – Governing law and jurisdiction
• Section 25 – General
• Part II – Terms applicable to the App Market in the US
• Section 4 – Limitation of liability
• Section 5 – (Reserved)
• Section 7 – Governing law and jurisdiction
• Section 8 – General
• Part III – Terms applicable to the App Market in the UK and the European Union
• Section 3 – Limitation of liability
• Section 6 – (Reserved)
• Section 9 – Governing law and jurisdiction
• Section 10 – General
• Part IV – Terms applicable to the App Market in Canada
• Section 4 – Limitation of liability
• Section 5 – (Reserved)
• Section 7 – Governing law and jurisdiction
• Section 8 – General

21. CHANGES TO THESE TERMS

21.1 Clover reserves the right to make changes to these 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 that 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 Clover API or the App Market to publish and/or allow the installation of your Apps 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.

22. EXPORT PROVISIONS

22.1 You must comply fully with all applicable export laws and regulations to ensure that your App, any technical data related your App or any direct product thereof is not exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.

23. NOTICES AND COMMUNICATIONS

23.1 Please refer to the Part of these Terms that applies to the App Market in the relevant jurisdiction(s) for these provisions.

24. GOVERNING LAW AND JURISDICTION

24.1 Please refer to the Part of these Terms that applies to the App Market in the relevant jurisdiction(s) for these provisions.

25. GENERAL

25.1  If any provision of these Terms is held to be invalid or unenforceable, that 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.

25.2 No third party will have any rights under, or be able to enforce, these Terms.

25.3 Please refer to the Part of these Terms that applies to the App Market in the relevant jurisdiction(s) for all other general provisions.

25.4 By using Google Pay you hereby agree to Google Pay API Terms of Service

26. DEFINITIONS

26.1 In these Terms the following terms shall have the following meanings:

• Affiliates: Any present or future legal entities that are directly or indirectly owned or controlled by Fiserv, Inc. (or its successor entities).
• App Agreement: The contract that is created between you and a Merchant regarding an Installed App, and that comprises the App Terms (including any relevant Standard Contractual Clauses) and the App Fees.
• 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) that you own or have obtained valid licenses of all Intellectual Property Rights and that you have submitted to Clover for integration with the Clover Platform via the Clover API.
• App Fees: The fees payable by a Merchant for any of your Installed Apps.
• App Market: The electronic marketplace operated by Clover through which the Merchants may browse, locate and install Apps.
• App Terms: Your terms and conditions that govern a Merchant’s use of any of your Installed Apps (including any relevant Standard Contractual Clauses).
• Applicable Laws: 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.
• Audit: Has the meaning set out in Section 17.1.
• Authorized Auditor: Has the meaning set out in Section 17.1.
• Brand Features: The trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of Clover (or its Affiliates), on the one hand, and you, on the other hand, as owned by or licensed to such party from time to time.
• Card Association Rules: The bylaws, rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any card association (as amended from time to time by such card association).
• Clover: The Clover entity identified in the Part of these Terms that applies to the App Market in the relevant jurisdiction(s).
• Clover API: The application programming interface(s) to the Clover Platform, including any associated software development kits.
• Clover Platform: The proprietary cloud-based software platform of Clover.
• Confidential Information: Information relating to Clover (including Personal Data), any Affiliate of Clover or the App Market of a confidential and proprietary nature (including the Clover API, trade secrets, know-how, formulas, source code, inventions, beta software and other code not commercially released, diagrams, schematics, customer and financial information and product, sales or marketing plans, that you may obtain in writing, in electronic format, orally, by observation or otherwise.
• Contract: The contract created between you and Clover on the date that you click to accept these Terms, and such contract incorporates these Terms and the Clover App Market Developer Program Policies, all as may be amended by Clover from time to time, and any other documents incorporated by reference;
• Data Protection Laws: All Applicable Laws relating to the privacy, secrecy, confidentiality, collection, usage, transfer (including internet transfer), disclosure, security, protection, disposal, or other processing of Personal Data, including laws applicable to direct marketing, telemarketing, and unsolicited e-mails or text messages. Applicable laws may include, but are not limited to: (a) US federal and state laws, such as the FTC Act, the California Consumer Privacy Act, the California Privacy Rights Act, the Virginia Personal Information Privacy Act, the Colorado Privacy Act, the CAN-SPAM Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, Gramm-Leach-Bliley Act, state consumer protection laws, state data security laws, security breach notification laws, laws imposing minimum security requirements, laws requiring the secure disposal of records containing certain Personal Data; (b) the Canadian Personal Information Protection and Electronic Documents Act (Canada) and Canadian federal and provincial laws, and the Canadian Anti-Spam Legislation; and (c) European Data Protection Law.
• Developer or you: The developer that submits one or more Apps for approval by Clover for publication in the App Market and whose details are set out in the Developer Account.
• Developer Account: An account that you create to develop Apps and/or submit Apps for approval by Clover for publication in the App Market.
• Developer Taxes: All taxes and similar charges and fees that are imposed by any governmental authority with respect to Transaction Fees or Distribution Fees payable by you to Clover under these Terms.
• Device: Any device that interoperates with the Clover Platform and enables the Merchants to access the App Market.
• Gross Revenue: The aggregate App Fees, Merchant Taxes and all other amounts actually received by Clover from time to time for Installed Apps (including any subscriptions, in-App features, add-ons, extras or the like).
• EU Personal Data means the processing of Personal Data to which data protection laws of the EU or a member State of the EU or European Economic Area, was applicable prior to its processing by the Developer;
• European Data Protection Law: (i) the EU General Data Protection Regulation 2016/679 and EU Member State implementing laws and regulations and as amended by legislation arising out of the withdrawal of the UK from the European Union (the “GDPR” and “UK GDPR” respectively), (ii) the EU e-Privacy Directive 2002/58/EC as amended by Directive 2009/136/EC or further amended or replaced from time to time, and any relevant national implementing legislation, (iii) any substantially similar local legislation, (iv) the recommendations and deliberations of the relevant privacy commissioners and other privacy, personal information protection, and data protection authorities, and (iv) the UK Data Protection Act 2018, the UK Privacy and Electronic Communication Regulations, and recommendations and deliberations of the UK Information Commissioner’s Office.
• Installed App: A Published App that has been installed by a Merchant.
• Intellectual Property Rights: 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 that subsist or will subsist now or in the future in any part of the world.
• Merchant Payment Details: The details provided by a Merchant for payment of the App Fees.
• Merchants: The merchants that access the App Market to browse, locate and install Apps.
• Merchant Taxes: All taxes and similar charges and fees that are imposed by any governmental authority in respect of the Installed Apps, such as sales tax or value added tax (VAT).
• Net Revenue: The Gross Revenue less any Merchant Taxes, chargebacks, credits, refunds or the like and any fees payable by you or Clover to third parties for processing payments in respect of the Installed App.
• Payment Account: The financial clearing account designated by you for the (i) receipt of payments collected on your behalf in respect of the Installed Apps, and (ii) payment by you of any amounts payable by you to Clover under these Terms.
• Person: Any partnership, corporation, limited liability company, joint venture, trust, governmental agency, cooperative, association or individual.
• Personal Data: Any information related to an identified or identified natural person, or any other information defined as “personal information,” “personally identifiable information,” “personal data,” or similar term under Applicable Law.
• Published App: An App that is published in the App Market.
• Remittance Amount: the amount of the Net Revenue less the Transaction Fees, Distribution Fees and Developer Taxes that is to be remitted to your Payment Account.
• Standard Contractual Clauses: means the Standard Contractual Clauses (issued by EU Commission Implementing Decision (EU) 2021/914 of 4 June 2021, excluding all clauses marked as optional and where the applicable modules will be either
• (i) (i) where you are determined by the App Agreement to act as a Processor on behalf of Merchant, module two (in which case, option 2, general written authorisation will be the applicable option for clause 9(a) and the time period to authorise a new sub-processor shall be thirty days or
• (ii) where you are determined by the App Agreement to act as a Controller, module one; and
• in respect of UK Personal Data:
• the International Data Transfer Addendum to the above Standard Contractual Clauses, issued by the Information Commissioner and laid before Parliament in accordance with s.119A of the Data Protection Act 2018 on 2 February 2022 but, as permitted by clause 17 of such addendum, the format of the information set out in Part 1 of the addendum will be changed so that:
• the details of the parties in table 1 shall be as set out in Schedule 1 (with no requirement for signature) as may be updated from time to time.
• for the purposes of table 2, the addendum shall be appended to the EU Standard Contractual Clauses (including the selection of modules and disapplication of optional clauses as noted above); and

the appendix information listed in table 3 is set out in Schedule 1, as may be updated from time to time.

• Territory: the territory in which the App Market is accessed.
• User: a person authorized by a Merchant to use an Installed App, and such term may include staff, employees, officers, agents, subcontractors and customers of the Merchant.
• UK Personal Data means the processing of Personal Data to which data protection laws of the United Kingdom were applicable prior to its processing by the Developer.

26.2 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.

26.3 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.

26.4 Any phrase introduced by the term “including” shall be construed as illustrative and shall not limit the sense of the words proceeding such term.

PART II – TERMS APPLICABLE TO THE APP MARKET IN THE UNITED STATES

1. DEFINITIONS

1.1 For the purposes of this Part II of these Terms the following term shall have the following meaning:

• CheckFreePay: CheckFreePay Corporation (NMLS# 908760), a business with offices at 2900 Westside Parkway, Alpharetta, Georgia 30004.
• Payment Processor: The third-party payment processor(s) appointed by Clover to process the App Fees.

2. OPERATOR OF THE APP MARKET

2.1 The App Market is operated by Clover Network, LLC, a Delaware limited liability corporation, with its principal place of business at 415 N. Mathilda Avenue, Sunnyvale, CA 94085.

3. COLLECTION AND REMITTANCE OF THE APP FEES TO YOU

3.1 You authorize Clover to appoint CheckFreePay as the Payment Processor and to join the Payment Processor as a party to the Contract.

3.2 The Payment Processor will act as your agent to collect and hold all Gross Revenue on your behalf and to remit the Remittance Amount to your Payment Account. You must enter into any additional terms and conditions required by the Payment Processor and you must comply with any such terms.

3.3 You agree and Clover will make it clear in its dealings with the Merchants that:

1. the Payment Processor collects any and all Gross Revenue on your behalf; and
2. payment by a Merchant to the Payment Processor of any and all Gross Revenue will constitute full and final settlement of such Gross Revenue (except for Merchant Taxes) payable by such Merchant to you. The Payment Processor, not the Merchant, is solely liable to you if the Payment Processor fails to remit payments received from the Merchant to you.

3.4 The Payment Processor will remit the Remittance Amount to your Payment Account on a monthly basis by electronic direct deposit (ACH, electronic transfer or similar method) or check. Such amount will be remitted to you in the currency(s) that the Gross Revenue is collected.

3.5 If there are any outstanding or uncollected amounts owed by you to Clover under these Terms or otherwise, Clover will be entitled at any time to:

1. offset such amounts from any Remittance Amount that the Payment Processor would otherwise transfer into your Payment Account pursuant this Section; or
2. instruct the Payment Processor to debit such amounts from your Payment Account.

3.6 You acknowledge and agree that:

1. all representations and warranties that you make under these Terms are also for the benefit of the Payment Processor;
2. the Payment Processor may incur any losses that Clover incurs or may incur arising from or in connection with these Terms;
3. all disclaimers and limits of liability applicable to Clover under these Terms also apply to the Payment Processor;
4. the definition of “Contract” is expanded to include the Payment Processor as a party;
5. the definition of “Confidential Information” is expanded to include equivalent information regarding the Payment Processor;
6. the definition of “Net Revenue” is amended to include any fees paid by the Payment Processor to third parties for processing payments in respect of the Installed Apps; and
7. all indemnities that you make under Section 17 (Indemnification) of Part I are also for the benefit of the Payment Processor.

3.7 You represent and warrant to the Payment Processor that you will not do or omit to do, or cause or permit anything to be done or omitted to be done, in respect of all of the personal data that this Agreement relates, that may cause or otherwise result in a breach of the Data Protection Laws by the Payment Processor.

3.8 You must notify Clover promptly if you believe any improper, erroneous or unauthorized transaction is processed by the Payment Processor on your behalf.

3.9 Clover reserves the right to replace the Payment Processor at any time and will notify you accordingly in such event.

4. LIMITATION OF LIABILITY

4.1 DEATH OR PERSONAL INJURY. NOTHING IN THESE TERMS WILL LIMIT THE LIABILITY OF CLOVER OF ITS AFFILIATES TO YOU FOR CAUSING DEATH OR PERSONAL INJURY THROUGH OUR GROSS NEGLIGENCE, FOR FRAUD BY CLOVER OR ITS AFFILIATES OR FOR ANY OTHER MATTER WHERE IT WOULD BE UNLAWFUL TO LIMIT OR EXCLUDE OUR LIABILITY.

4.2 LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT CLOVER, ITS AFFILIATES, ITS OR THEIR RESPECTIVE REPRESENTATIVES OR LICENSORS AND CLOVER DISTRIBUTION PARTNERS 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 CLOVER API, THE APP MARKET OR ANY MATERIAL INSTALLED OR OTHERWISE OBTAINED THROUGH THE USE 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 CLOVER DISTRIBUTION PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

4.3 SUBJECT TO THIS SECTION 4 AND THE OTHER RELEVANT PROVISIONS OF THESE TERMS, CLOVER’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THESE TERMS, YOUR ACCESS TO OR USE OF THE CLOVER API OR APP MARKET TO PUBLISH AND/OR ALLOW THE INSTALLATION OF YOUR APPS OR ANY MATERIAL INSTALLED OR OTHERWISE OBTAINED THROUGH THE APP MARKET DURING EACH CONSECUTIVE TWELVE (12) MONTH PERIOD BEGINNING ON DATE YOU CLICKED TO ACCEPT THESE TERMS WILL NOT EXCEED THE AVERAGE MONTHLY AMOUNT OF TRANSACTION FEES RECEIVED BY CLOVER FOR YOUR APPS DURING SUCH TWELVE (12) MONTH PERIOD MULTIPLIED BY TWELVE (12), REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

5. (RESERVED)

6. NOTICES AND COMMUNICATIONS

6.1 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, by phone or by posting notices in the App Market. You consent to receive notices and communications from Clover electronically and 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.

6.2 All notices that you are required or desire to give to Clover and/or the Payment Processor must be in writing and given by overnight mail (e.g., FedEx) to 415 N Mathilda Avenue Sunnyvale, CA 94085 Attention: General Counsel's Office and will be deemed received by Clover on the next business day after being deposited with an overnight carrier.

7. GOVERNING LAW AND JURISDICTION

7.1 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, Clover and the Payment Processor 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.

8. GENERAL

8.1 You must not issue any press release or make any other public statements regarding these Terms or your relationship with Clover and the Payment Processor without Clover’s prior written approval.

8.2 A failure by Clover or the Payment Processor to enforce any right or provision of these Terms will not constitute a waiver by Clover or the Payment Processor (respectively) of future enforcement of that right or provision or any other right or provision.

8.3 You must not assign or transfer any of your rights or obligations under these Terms, in whole or in part, by operation of law or otherwise, without the prior written approval of Clover. You must enter into any documents required by Clover to effectuate an assignment or transfer by Clover and/or the Payment Processor of its rights and obligations under these Terms.

8.4 Except as expressly stated in these Terms, these Terms establish an independent contractor relationship between you, Clover and the Payment Processor, and do not create any affiliate relationship, partnership, joint venture, employment relationship, agency, or fiduciary or other special relationship between you, Clover and the Payment Processor.

8.5 Except as expressly stated in these Terms, no party has the authority to act or purport to act as the agent or representative of another party for any purpose.

8.6 These Terms and the Clover App Market Developer Program Policies constitute the entire and complete legal agreement between you, Clover and the Payment Processor regarding its subject matter, and completely replaces any prior or contemporaneous agreements or understanding, written or oral, between you, Clover and the Payment Processor regarding 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 these Terms. Nothing in this Section 8.6 shall limit or exclude any liability for fraud.

PART III – TERMS APPLICABLE TO THE APP MARKET IN THE UNITED KINGDOM AND EUROPEAN UNION

1. DEFINITIONS

1.1 For the purposes of this Part III of these Terms the following terms shall have the following meanings:

• CheckFreePay: CheckFreePay Corporation (NMLS# 908760), a business with offices at 2900 Westside Parkway, Alpharetta, Georgia 30004.
• Customer: A person who purchases goods or services from a Merchant
• Developer Personal Data: Personal data relating to the Developer and its employees and other staff.
• Merchant Personal Data: Personal data relating to a Merchant.
• Payment Processor: The third party payment processor(s) appointed by Clover to process the App Fees.
• Third Party Personal Data: Personal data relating to Customers and to the Merchant’s employees and other staff (excluding its owners), in each case whether current, past or prospective.

1.2 The following terms will have the meaning given to them in the GDPR and UK GDPR (as applicable): “controller”, “processor”, “process”, “processing” and “data subject”.

2. OPERATOR OF THE APP MARKET

2.1 The App Market is operated by MarketPlace Merchant Solutions Limited with registered number 539224 and with registered address at Unit 9, Richview Office Park, Clonskeagh Road, Dublin 14, Ireland.

3. COLLECTION AND REMITTANCE OF THE APP FEES TO YOU

3.1 For App Fees paid by U.S. Merchants, you authorize Clover to appoint CheckFreePay as the Payment Processor and join the Payment Processor as a party to the Contract. The Payment Processor will act as your agent to collect and hold all Gross Revenue on your behalf and to remit the Remittance Amount to your Payment Account. You must enter into any additional terms and conditions required by the Payment Processor and you must comply with any such terms. You agree and Clover will make it clear in its dealings with the U.S. Merchants that:

• the Payment Processor collects any and all Gross Revenue on your behalf; and
• payment by a U.S. Merchant to the Payment Processor of any and all Gross Revenue will constitute full and final settlement of such Gross Revenue (except for Merchant taxes) payable by such Merchant to you. The Payment Processor, not the Merchant, is solely liable to you if the Payment Processor fails to remit payments received from the Merchant to you.

3.2 For App Fees paid by non-U.S. Merchants, you hereby appoint Clover as your agent to collect and hold on your behalf all Gross Revenue. Clover will make it clear in its dealings with non-U.S. Merchants that:

• Clover collects any and all Gross Revenue on your behalf; and
• payment by a Merchant to Clover of any and all Gross Revenue will constitute full and final settlement of such Gross Revenue (except for Merchant Taxes) payable by such Merchant to you.

3.3 Clover or the Payment Processor, as applicable, will remit the Remittance Amount to your Payment Account on a monthly basis by electronic direct deposit (ACH, electronic transfer or similar method) or check. Such amount will be remitted to you in the currency(s) that the Gross Revenue is collected.

3.4 If there are any outstanding or uncollected amounts owed by you to Clover under these Terms or otherwise, Clover will be entitled at any time to:

• offset such amounts from any Remittance Amount that Clover or the Payment Processor, as applicable, would otherwise transfer into your Payment Account pursuant to this Section; or
• debit, or instruct the Payment Processor to debit, as applicable, such amounts from your Payment Account.

3.5 You acknowledge and agree that:

1. all representations and warranties that you make under these Terms are also for the benefit of the Payment Processor;
2. the Payment Processor may incur any losses that Clover incurs or may incur arising from or in connection with these Terms;
3. all disclaimers and limits of liability applicable to Clover under these Terms also apply to the Payment Processor;
4. the definition of “Contract” is expanded to include the Payment Processor as a party;
5. the definition of “Confidential Information” is expanded to include equivalent information regarding the Payment Processor; t6. he definition of “Net Revenue” is amended to include any fees paid by the Payment Processor to third parties for processing payments in respect of the Installed Apps; and
6. all indemnities that you make under Section 17 (Indemnification) of Part I are also for the benefit of the Payment Processor.

3.6 You represent and warrant to the Payment Processor that you will not do or omit to do, or cause or permit anything to be done or omitted to be done, in respect of all of the personal data that this Agreement relates, that may cause or otherwise result in a breach of the Data Protection Laws by the Payment Processor.

3.7 You must notify Clover promptly if you believe any improper, erroneous or unauthorized transaction is processed by Clover or the Payment Processor, as applicable, on your behalf.

3.8 A third party payment processor is not involved in the collection and remittance of the App Fees to you paid by non-U.S. Merchants.

3.9 Clover reserves the right to replace the Payment Processor at any time and will notify you accordingly in such event.

4. LIMITATION OF LIABILITY

4.1 Nothing in these Terms excludes or limits the liability of either party for:

• death or personal injury caused by its negligence;
• breach of any obligation as to title implied by Section 12 of the United Kingdom’s Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
• fraud or fraudulent misrepresentation.

4.2 Subject to Section 4.1 of this Part III, the maximum aggregate liability of Clover arising to you under or in connection with the Contract in respect of the year that the liability arises, whether arising from tort (including negligence), breach of contract, statutory duty or otherwise, shall in no event exceed the aggregate amount of the fees received by Clover for your Installed Apps under the Contract during the twelve (12) months immediately prior to the date that the cause of action first arose.

4.3 Subject to Section 4.1 of this Part III, 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.

4.4 You hereby acknowledge and agree that enforcement action by any applicable data protection authority or other regulator and claims by any person pursuant to the Data Protection Laws shall not amount to incidental, special or consequential loss.

4.5  Except as expressly stated in these Terms, all warranties and conditions, whether expressed or implied by statute, common law or otherwise, are hereby excluded to the fullest extent permitted at law.

5. INDEMNIFICATION

5.1 You will defend, indemnify and hold harmless Clover, its Affiliates, its or their respective representatives or licensors and Clover distribution partners from and against any and all third party claims, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees), and enforcement action by any applicable data protection authority or other regulator, arising out of or in connection with the following, in addition to the provisions set out in Section 16.1 of Part I of these Terms:

1. your processing of any of the Third Party Personal Data and/or the Merchant Personal Data, including your acts and omissions or those of your sub-processors in respect of the same; and/or
2. the processing by Clover of the Developer Personal Data pursuant to and in accordance with these Terms.

6. DATA PRIVACY

6.1 Relationship of the Parties. You acknowledge and agree that (a) Clover acts as a processor on behalf of Merchant when transferring any personal data to you on behalf of Merchant, and when receiving personal data from you on behalf of Merchant; (b) your relationship with Merchant, including your status as a data processor or data controller, is based on your contract with Merchant; (c) in no event shall Clover act as a processor on your behalf, and in no event shall Clover act as a joint controller with you. In all cases, you agree to comply with applicable European Data Protection Law.

6.2 Obligations When Receiving Personal Data from Clover on Behalf of Merchant. To the extent that Clover transfers personal data to you in connection with your App, such data is provided on behalf of a Merchant with which both you and Clover have a contractual relationship. You acquire no greater rights to any personal data received from Clover than such rights (if any) as you may obtain directly from Merchant.

(a) If Clover transfers personal data to you in connection with your App on behalf of a Merchant, then you represent and warrant to Clover that:

(1) the Merchant has authorized you under your App Agreement to receive that personal data from us in connection with your App;

(2) If you are determined by the App Agreement to act as a processor on behalf of Merchant, you represent and warrant to Clover that you have a data processing agreement in place with Merchant that meets the requirements of article 28 of the GDPR or the UK GDPR;

(3) you are receiving the personal data (i) within the United Kingdom or European Economic Area, or (ii) pursuant to a solution that you and the Merchant have implemented and established that enables the lawful transfer of personal data to a third country outside the European Economic Area in accordance with Article 45-47 of the GDPR and/or outside the United Kingdom (for example, the European Commission’s Standard Contractual Clauses) (a “Data Transfer Solution”). For the purposes of this Section 6.2, “Restricted Transfer” means a transfer of personal data from a Merchant to you via Clover (acting on that Merchant’s behalf), which would be prohibited by European Data Protection Laws without a Data Transfer Solution.

(b)(1) Subject to Section 6.2(b)(5) below, if at any time, and in each case where, no Data Transfer Solution has been implemented and established in respect of any Restricted Transfer(s) under an App Agreement, you (acting as ‘data importer’) hereby enter into the relevant EU Standard Contractual Clauses with Merchant (acting as ‘data exporter’, by and through Clover, as Merchant’s agent for these limited purposes) in respect of such Restricted Transfer(s). Subject to Section 6.2(b)(4) below, any Standard Contractual Clauses entered into pursuant to the foregoing sentence of this Section 6.2(b)(1) shall be deemed to come into effect, and be incorporated into the relevant App Agreement, automatically upon the commencement of the relevant Restricted Transfer. You will provide a link to the relevant Standard Contractual Clauses that will form part of the App Agreement between you and the Merchant for the Merchant to access or otherwise be responsible for providing contact information and details as to how the Merchant can contact you in order to obtain a copy of the relevant Standard Contractual Clauses that will form part of the App Agreement between you and the Merchant prior to its acceptance of the App Agreement.

(b)(2) In respect of any Standard Contractual Clauses entered into pursuant to Section 6.2(b)(1) (above),

(i) the appendices and annexes of those Standard Contractual Clauses shall be deemed to have been completed as set out in Schedule 1 to this Part III, as may be updated from time to time,; and

(ii) the Developer shall incorporate into the App Agreement, the Supplementary Measures set out in Schedule 2 Part III.

(b)(3) If at any time any alternative Data Transfer Solution is established and implemented between you and any relevant Merchant in respect of any Restricted Transfers (e.g., the third country in which you are established becomes the subject of an adequacy decision of the European Commission or the Government of the United Kingdom): (i) the operation of Section 6.2(b)(1) shall be suspended with respect to all Restricted Transfers to which that alternative Data Transfer Solution applies; and (ii) such Data Transfer Solution shall supersede Section 6.2(b)(1) (including any Standard Contractual Clauses entered into pursuant to that Section) with respect to such Restricted Transfers.

6.3 Obligations When Transferring Personal Data to Clover on Behalf of Merchant. To the extent that you will transfer personal data to Clover in connection with your App, you agree to transfer to Clover personal data only where all of the following apply: (a) Merchant is a controller of the data you are transferring to Clover; and (b) you are performing the data transfer on behalf of and pursuant to the instructions of Merchant. You may not transfer personal data to Clover except on a behalf of and for the benefit of Merchant. If you act as a processor on behalf of Merchant, you represent and warrant to Clover that you have a data processing agreement in place with Merchant that meets the requirements of article 28 of the GDPR and UK GDPR.

6.4 Notwithstanding Section 6.1 above, in the event that applicable European Data Protection Law deems you to be a processor acting on behalf of Clover or Clover’s subprocessor acting on behalf of a Merchant, then you agree to execute a supplemental agreement provided by Clover designed to meet the requirements of applicable European Data Protection Law.

6.5 You acknowledge that Clover processes Developer Personal Data as a data controller. Clover shall process Developer Personal Data in accordance with the applicable Data Protection Laws. Accordingly, you hereby acknowledge that Clover may process Developer Personal Data in accordance with Clover’s Privacy Notice.

7. TERM AND TERMINATION OF THE CONTRACT

7.1 Upon the termination of any App Agreement for an Installed App following termination of the Contract for any reason other than your breach of any of these Terms, and in addition to the provisions set out in Section 20.4 of Part I of these Terms:

1. subject to Section 7.2(b), in respect of each terminated App Agreement for an Installed App you must promptly and securely return to Clover (or at Clover’s request destroy) all hard copies and permanently and securely delete from all of your computer equipment all electronic copies of all Third Party Personal Data and Merchant Personal Data for which you are the processor and that is in your possession or control, and upon the termination of the last App Agreement for an Installed App you must provide Clover with written certification, signed by one of your officers, certifying to the return, destruction or deletion, as relevant, of all Third Party Personal Data and Merchant Personal Data for which you are the processor and that is in your possession or control; and
2. upon request by Clover made within thirty (30) days after such date of termination of the last App Agreement for an Installed App, you must make available to Clover a file of Third Party Personal Data and Merchant Personal Data for which you are the processor under any App Agreement for an Installed App in a format determined by Clover.

7.2 If Clover terminates the Contract as a result of your breach of any of these Terms, then upon termination of the Contract, and in addition to the provisions set out in Section 20.6 of Part I of these Terms:

1. subject to Section 7.2(b) you must promptly and securely return to Clover (or at Clover’s request destroy) all hard copies and permanently and securely delete from all of your computer equipment all electronic copies of all Third Party Personal Data and Merchant Personal Data for which you are the processor and that is in your possession or control, and you must provide Clover with written certification, signed by one of your officers, certifying to the return, destruction or deletion, as relevant, thereof; and
2. upon request by Clover made within thirty (30) days after the date of termination of the Contract, you must make available to Clover a file of Third Party Personal Data and Merchant Personal Data for which you are the processor in a format determined by Clover.

8. NOTICES AND COMMUNICATIONS

8.1 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, by phone or by posting notices in the App Market. You consent to receive notices and communications from Clover electronically and 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.

8.2 All notices that you are required or desire to give to Clover and/or the Payment Processor must be in writing and given by overnight mail (e.g., FedEx) to Clover at Unit 9, Richview Office Park, Clonskeagh Road, Dublin 14, Ireland and marked for the attention of the Legal Counsel. Such notices will be deemed to be received by Clover on the next business day after being deposited with an overnight carrier.

8.3 You must provide notices to and obtain valid consents from all persons who are your proprietors, employees and other staff in order to facilitate all communications, including marketing communications, from Clover, to the extent the same is required by the Data Protection Laws

9. GOVERNING LAW AND JURISDICTION

9.1 The Contract is governed by English law. The parties irrevocably submit to the exclusive jurisdiction of the courts of England 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).

10. GENERAL

10.1 You must not issue any press release or make any other public statements regarding these Terms or your relationship with Clover and the Payment Processor without Clover’s prior written approval.

10.2 A failure by Clover or the Payment Processor to enforce any right or provision of these Terms will not constitute a waiver by Clover or the Payment Processor (respectively) of future enforcement of that right or provision or any other right or provision.

10.3 You must not assign or transfer any of your rights or obligations under these Terms, in whole or in part, by operation of law or otherwise, without the prior written approval of Clover. You must enter into any documents required by Clover to effectuate an assignment or transfer by Clover and/or the Payment Processor of its rights and obligations under these Terms.

10.4 Except as expressly stated in these Terms, these Terms establish an independent contractor relationship between you, Clover and the Payment Processor, and do not create any affiliate relationship, partnership, joint venture, employment relationship, agency, or fiduciary or other special relationship between you, Clover and the Payment Processor.

10.5 Except as expressly stated in these Terms, no party has the authority to act or purport to act as another party’s agent or representative for any purpose.

10.6 These Terms and the Clover App Market Developer Program Policies constitute the entire and complete legal agreement between you, Clover and the Payment Processor regarding its subject matter, and completely replaces any prior or contemporaneous agreements or understanding, written or oral, between you, Clover and the Payment Processor regarding 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 these Terms. Nothing in this Section 10.6 shall limit or exclude any liability for fraud.

APPENDIX TO STANDARD CONTRACTUAL CLAUSES | DETAIL INCORPORATED INTO RELEVANT STANDARD CONTRACTUAL CLAUSES

Annex 1 A List of Parties:

Data exporter: Merchant, by and through Clover, acting as Merchant’s agent

Merchant’s address and contact person’s name, position and contact details (including of any DPO and EU representative) as designated under the App Agreement. This information will be deemed to be the name of the merchant agreeing to the App Agreement and using the application.

Activities relevant to the data transferred under these Clauses: Merchant is a business which accepts card-based payments and which wishes to use the data importer to process this data or the data of staff managing this process

Signature and date: the Merchant will be deemed to have signed and dated the Standard Contractual Clauses by its entry into the App Agreement.

Role: controller

Data importer: Developer

Developer’s address and contact person’s name, position and contact details as designated under the App Agreement

Activities relevant to the data transferred under these Clauses:

App-based services for Merchants:

• Marketing
• Employee management
• CRM
• Data analytics
• Financing and insurance
• Merchant tools (e.g. inventory management)
• Other, please specify

Specify briefly activities relevant to the transfer:

• Hosting data on behalf of the Merchant;
• Sending direct marketing to customers on behalf of the Merchant;
• Sending customer satisfaction surveys;
• Loyalty programme management including creation of personalized discounts on behalf of Merchants;
• Transferring data between the device and the server to facilitate all of the above;
• Transferring data to You on the instruction of the Merchant where the Merchant uses a third party app for services such as the above;
• Hosting data and processing to support managing payments and refunds;
• Hosting data on behalf of Merchant for staff management purposes;
• Transferring data between the device and the server to facilitate all of the above;
• Transferring data between Merchant and Clover; and
• Transferring data to You on the instruction of the Merchant where the Merchant uses a third party app for services such as the above;
• Specific any other activities relevant to the transfer

Signature and date: the Developer will be deemed to have signed and dated the Standard Contractual Clauses by its entry into the App Agreement

Role: processor (unless otherwise stipulated as controller in the App Agreement in which case Developer acts as a controller).

B. Description of Transfer Categories of data subjects whose Personal Data is transferred The Personal Data transferred concern the following categories of data:

• Customers
• Merchant
• Employees of Merchant

Categories of Personal Data transferred

Categories of data:

The Personal Data transferred concern the following categories of data:

(A) Customers:

• name
• email address
• phone number
• address
• order ID
• unique customer ID,
• purchase history (date & time, amount, type and method, item)

(B) Merchant Staff / personnel:

• Employee name and/or nickname
• Staff/employee/principle ID data
• Staff/employee/principle role
• Merchant address
• staff shift data
• associated sales, orders & tips data

Sensitive data transferred if applicable Special categories of data (if appropriate):

Frequency of the transfer:

• One-off
• Monthly sync
• Weekly sync
• Hourly (or higher frequency)
• Other, please specify

Nature of the processing: Subject matter and nature of the processing.

The Personal Data transferred will be subject to the basic processing activities set out in Annex I (A) and (B) above and the App Agreement.

Purpose(s) of the data transfer and further processing: Provision of app-based service to Merchant as set out in Annex I (A) and (B) above and as set out in the App Agreement.

Period for which the Personal Data will be retained or, if that is not possible, the criteria used to determine that period (Annex 1):

• Until Merchant deletes app
• Other, please specify

For transfers to sub-processors, specify subject matter, nature and duration of processing (Annex 1 and 3): Complete where Developer is a data processor: The Merchant controller has authorised the use of the following sub-processors (include name, address, contact person’s name, position and contact details and description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised):

C: Competent supervisory authority: Supervisory authority will be determined in accordance with clause 13 of the Standard Contractual Clauses

Technical and organisational measures (Annex 2)

• Pseudonymisation and encryption of Personal Data
• Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
• Measures for ensuring the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident
• Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing
• Measures for user identification and authorisation
• Measures for the protection of data during transmission
• Measures for the protection of data during storage
• Measures for ensuring physical security of locations at which Personal Data are processed
• Measures for ensuring events logging
• Measures for ensuring system configuration, including default configuration
• Measures for internal IT and IT security governance and management
• Measures for certification/assurance of processes and products
• Measures for ensuring data minimisation
• Measures for ensuring data quality
• Measures for ensuring limited data retention
• Measures for ensuring accountability
• Measures for allowing data portability and ensuring erasure
• Other, please specify

Time period to submit a request for specific authorisation of a new sub-processor (Clause 9) Only complete if Developer is a processor: Developer to notify the Merchant with 30 days’ prior written notice in the event of a new or change to the list of sub-processors

Governing law (clause 17): The EU Member State in which the Merchant (as data exporter) is established. Where such law does not allow for third-party beneficiary rights, the laws of Developer to insert EU Member State shall apply.

PART IV – TERMS APPLICABLE TO THE APP MARKET IN CANADA

1. DEFINITIONS

1.1 For the purposes of this Part V of these Terms the following term shall have the following meaning:

• CheckFreePay: CheckFreePay Corporation (NMLS# 908760), a business with offices at 900 Westside Parkway, Alpharetta, Georgia 30004.
• Payment Processor: The third party payment processor(s) appointed by Clover to process the App Fees.

2. OPERATOR OF THE APP MARKET

2.1 The App Market is operated by Clover Network, LLC, a Delaware limited liability corporation, with its principal place of business at 415 N. Mathilda Avenue, Sunnyvale, CA 94085.

3. COLLECTION AND REMITTANCE OF THE APP FEES TO YOU

3.1 For App Fees paid by U.S. Merchants, you authorize Clover to appoint CheckFreePay as the Payment Processor and join the Payment Processor as a party to the Contract. The Payment Processor will act as your agent to collect and hold all Gross Revenue on your behalf and to remit the Remittance Amount to your Payment Account. You must enter into any additional terms and conditions required by the Payment Processor and you must comply with any such terms. You agree and Clover will make it clear in its dealings with the U.S. Merchants that:

• the Payment Processor collects any and all Gross Revenue on your behalf; and
• payment by a U.S. Merchant to the Payment Processor of any and all Gross Revenue will constitute full and final settlement of such Gross Revenue (except for Merchant taxes) payable by such Merchant to you. The Payment Processor, not the Merchant, is solely liable to you if the Payment Processor fails to remit payments received from the Merchant to you.

3.2 For App Fees paid by non-U.S. Merchants, you hereby appoint Clover as your payment processor to collect and process all of your Gross Revenue. Clover will make it clear in its dealings with the non-U.S. Merchants that:

1. Clover acts as your payment processor, collecting and processing Gross Revenue on your behalf;
2. Payment by a Merchant to Clover of any and all Gross Revenue will constitute full and final settlement of such Gross Revenue (except for Merchant Taxes) payable by such Merchant to you.

3.3  Clover or the Payment Processor, as applicable, will remit the Remittance Amount to your Payment Account on a monthly basis by electronic direct deposit (ETF, electronic transfer, or similar method) or cheque. Such amount will be remitted to you in the currency(s) that the Gross Revenue is collected.

3.4  If there are any outstanding or uncollected amounts owed by you to Clover under these Terms or otherwise, Clover will be entitled at any time to:

1. offset such amounts from any Remittance Amount that Clover or the Payment Processor, as applicable, would otherwise transfer into your Payment Account pursuant to this Section; or
2. debit, or instruct the Payment Processor to debit, as applicable, such amounts from your Payment Account.

3.5 You acknowledge and agree that: 1. all representations and warranties that you make under these Terms are also for the benefit of the Payment Processor; 2. the Payment Processor may incur any losses that Clover incurs or may incur arising from or in connection with these Terms; 3. all disclaimers and limits of liability applicable to Clover under these Terms also apply to the Payment Processor; 4. the definition of “Contract” is expanded to include the Payment Processor as a party; 5. the definition of “Confidential Information” is expanded to include equivalent information regarding the Payment Processor; 6. the definition of “Net Revenue” is amended to include any fees paid by the Payment Processor to third parties for processing payments in respect of the Installed Apps; and 7. all indemnities that you make under Section 17 (Indemnification) of Part I are also for the benefit of the Payment Processor.

3.6 You represent and warrant to the Payment Processor that you will not do or omit to do, or cause or permit anything to be done or omitted to be done, in respect of all of the personal data that this Agreement relates, that may cause or otherwise result in a breach of the Data Protection Laws by the Payment Processor. 3.7 You must notify Clover promptly if you believe any improper, erroneous or unauthorized transaction is processed by Clover or the Payment Processor, as applicable, on your behalf. 3.8 A third party payment processor is not involved in the collection and remittance of the App Fees to you paid by non-U.S. Merchants. 3.9 Clover reserves the right to replace the Payment Processor at any time and will notify you accordingly in such event.

4. LIMITATION OF LIABILITY

4.1 Nothing in these Terms excludes or limits the liability of either party for: death or personal injury caused by its negligence; fraud or fraudulent misrepresentation; or other matters for which it would be unlawful to limit or exclude liability.

4.2 CClover’s maximum aggregate liability to you under or in connection with the Contract, whether arising from tort (including negligence), breach of contract, statutory duty or otherwise, shall in no event exceed the aggregate amount of the fees received by Clover for your Installed Apps under the Contract during the twelve (12) months immediately prior to the date that the cause of action first arose.

4.3 Clover shall not be liable to you 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 it has been advised of the possibility of incurring the same. Clover shall not be liable to you in tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties to this Contract, regardless of whether such damages were foreseeable or whether either party has been advised of the possibility of such damages.

5. DATA PRIVACY

5.1 Relationship of the Parties. You acknowledge and agree that (a) Clover acts as a service provider to Merchant when transferring any Personal Data to you on behalf of Merchant, and when receiving Personal Data from you on behalf of Merchant; (b) your relationship with Merchant, including your status as a service provider or accountable entity under Canadian Data Protection Laws, is based on your contract with Merchant; (c) in no event shall Clover act as a service provider to you, and in no event shall Clover be jointly accountable with you under Canadian Data Protection Laws in connection with the Personal Data in your custody and control. In all cases, you agree to comply with Data Protection Laws. 5.2 Obligations When Receiving Personal Data from Clover on Behalf of Merchant. To the extent that Clover transfers Personal Data to you in connection with your App, such data is provided on behalf of a Merchant with which both you and Clover have a contractual relationship. You acquire no greater rights to any Personal Data received from Clover than such rights (if any) as you may obtain directly from Merchant. If Clover transfers Personal Data to you in connection with your App on behalf of a Merchant, then you represent and warrant to Clover that:

(1) the Merchant has authorized you under your App Agreement to receive that Personal Data from us in connection with your App; and (2) If you are determined by the App Agreement to act as a service provider to Merchant, you represent and warrant to Clover that you have a contractual agreement in place with Merchant relating to your processing of Personal Data, including provisions regarding your agreement to implement reasonable security measures to protect Personal Data against loss, theft and unauthorized use, disclosure or other compromise, and as may otherwise be required under Data Protection Laws.

5.3 Obligations When Transferring Personal Data to Clover on Behalf of Merchant. To the extent that you will transfer Personal Data to Clover in connection with your App, you agree to transfer to Clover Personal Data only where all of the following apply: (a) Merchant is the accountable entity (for the purposes of Canadian Data Protection Laws) of the Personal Data you are transferring to Clover; and (b) you are performing the data transfer on behalf of and pursuant to the instructions of Merchant. You may not transfer Personal Data to Clover except on a behalf of and for the benefit of Merchant. If you act as a service provider to Merchant, you represent and warrant to Clover that you have a contractual agreement in place with Merchant relating to your processing of Personal Data, as set out in 6.2(a)(2) above. 5.4 You acknowledge that Clover will collect, use and process Developer Personal Data hereunder as an accountable entity under Canadian Data Protection Laws. Clover shall process Developer Personal Data in accordance with Data Protection Laws. You hereby acknowledge and agree that Clover may collect, use and otherwise process Developer Personal Data in accordance with Clover’s Privacy Notice.

6. NOTICES AND COMMUNICATIONS

6.1 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, by phone or by posting notices in the App Market. You consent to receive notices and communications from Clover electronically and 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.

6.2 All notices that you are required or desire to give to Clover and/or the Payment Processor must be in writing and given by overnight mail (e.g., FedEx) to Clover, Attn: EVP – Operations, 415 N. Mathilda Avenue, Sunnyvale, CA 94085, USA; with copies to First Canada Ltd., Attn: President, 2630 Skymark Drive, Suite 400, Mississauga, ON L4W 5A4, Canada; and to Clover, Attn: Legal, 4000 Coral Ridge Drive, Coral Springs, FL 33065. Such notices will be deemed to be received by Clover on the next business day after being deposited with an overnight carrier.

6.3 English Language. Developer and Clover expressly confirm this Agreement, and any documents and notices related thereto, be drawn up in English and declare themselves to be satisfied therewith, the whole, however, without prejudice to any documents which may from time to time be drawn up in French and English. Par les présentes, les parties confirment qu’elles souhaitent expressément que cette convention et tous les documents et avis connexe soient rédigés en anglais; elles s’en déclarent satisfaites sans préjudice, toutefois, à tout document ou avis qui pourrait, de temps à autre, être rédigé à la fois en français et en anglais.

7. GOVERNING LAW AND JURISDICTION

7.1 The Contract is governed by Ontario law. The parties irrevocably submit to the exclusive jurisdiction of the courts of Toronto, Ontario, Canada 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).

8. GENERAL

8.1 You must not issue any press release or make any other public statements regarding these Terms or your relationship with Clover and the Payment Processor without Clover’s prior written approval.

8.2 A failure by Clover or the Payment Processor to enforce any right or provision of these Terms will not constitute a waiver by Clover or the Payment Processor (respectively) of future enforcement of that right or provision or any other right or provision.

8.3 You must not assign or transfer any of your rights or obligations under these Terms, in whole or in part, by operation of law or otherwise, without the prior written approval of Clover. You must enter into any documents required by Clover to effectuate an assignment or transfer by Clover and/or the Payment Processor of its rights and obligations under these Terms.

8.4 Except as expressly stated in these terms, these Terms establish an independent contractor relationship between you, Clover and the Payment Processor, and do not create any affiliate relationship, partnership, joint venture, employment relationship, agency, or fiduciary or other special relationship between you, Clover and the Payment Processor.

8.5 Except as expressly stated in these Terms, no party has the authority to act or purport to act as another party’s agent or representative for any purpose.

8.6 These Terms and the Clover App Market Developer Program Policies constitute the entire and complete legal agreement between you, Clover and the Payment Processor regarding its subject matter, and completely replaces any prior or contemporaneous agreements or understanding, written or oral, between you, Clover and the Payment Processor regarding 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 these Terms. Nothing in this Section 10.6 shall limit or exclude any liability for fraud.