Clover Terms of Service

August 19, 2023

All capitalised terms used in these Terms of Service have the meanings set out in clause 16.

These Terms of Service are between:

• (1) Marketplace Merchant Solutions Limited, trading as Clover ™, and

• (2) the Merchant entering into these Terms of Service.

In consideration for the parties entering into a Contract (such consideration being agreed by the parties to be good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged and agreed), the parties agree to the below terms in connection with the provision and receipt of Services.

1. USE OF THE SERVICES

1.1 The Merchant may access the Services via a Device using a wired (Ethernet) or wireless (Wi-Fi or cellular) connection to the Internet. Certain components of the Services may also be accessed via Third Party Applications and Clover Applications delivered via the App Market.

1.2 Use of the Services is at the risk of the Merchant. To the maximum extent permitted by Applicable Laws, the Services are provided “as is”. Except as set out in the Contract, Clover makes no representations or warranties of any kind (express or implied) with regard to the Services, including warranties of accuracy, merchantability, fitness for a particular purpose or non-infringement, or that the Services will function uninterrupted or error-free, or that the Services are secure, free of viruses or other harmful components or that any defects or errors will be corrected.

1.3 Clover may perform maintenance on the Services from time to time which may result in service interruptions, delays or errors. Clover will not be liable for any such interruptions, delays or errors. The Merchant agrees that its merchant acquirer or other merchant services provider may contact the Merchant in order to assist the Merchant with the Services and to obtain information needed to identify and fix any errors.

1.4 The Merchant acknowledges and agrees that the form and nature of the Services which Clover provides may change from time to time without prior notice to the Merchant provided that the Services (including the processing of Third Party Personal Data by Clover) remain in compliance with clause 10. As part of Clover's efforts at continuing innovation, the Merchant acknowledges and agrees that Clover may at its sole discretion, and without prior notice to the Merchant, stop (permanently or temporarily) providing the Services (or any features within the Services) to the Merchant and the Users, and Clover shall assume no liability to Merchant, Users or other third party for such permanent or temporary cessation of the Services or specific features within the Services.

1.5 If the merchant acquirer permits the Merchant to conduct point of sale activities when the Services are offline, the transactions will be queued and submitted for authorisation when Internet connectivity to the Services is restored. The Merchant assumes all risk, responsibility and liability associated with any such transactions.

1.6 The Services may automatically download and install updates from time to time, which are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. The Merchant agrees to receive such updates (and to permit Clover, or any third party on Clover's behalf, to deliver these to the Merchant) as part of the Merchant’s use of the Services. Clover will install critical and non-critical software updates automatically on any and all of the Devices (acting where necessary in coordination with any third party reseller, lessor or distributor of the applicable Devices) unless the Merchant indicates at the time of an attempted non-critical software installation that it wishes to delay such non-critical software update. If the Merchant delays such update, Clover will re-attempt an update installation automatically at a later time.

2. PROHIBITED ACTIVITIES

2.1 The Merchant shall not access or use the Services in any manner or for any purpose other than as expressly permitted by the Contract. Any obligations of the Merchant set out in these Clover Terms of Service relating to the use of Devices are in addition and not in substitution of any other obligations imposed on the Merchant by any authorised third party reseller, lessor or distributor of such Devices (under any separate agreement covering purchase or lease of such Devices).

2.2 The Merchant shall not, and shall not permit any third party, to: (a) access or attempt to access the Services and the Devices (or any part) or any related systems or networks that are not intended or made available for public use, or access and/or engage in any use of the Services and the Devices for fraudulent or illegal purposes; (b) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover by any means any source code, underlying ideas or algorithms in connection with any aspect of the Services and the Devices (or any part), except to the extent permitted by law; (c) probe, scan or test the vulnerability of the Services and the Devices or any related systems or networks, or breach the security or authentication measure of the Services and the Devices or any network or systems connected to the Services and the Devices; (d) circumvent, disable or defeat any of the security features or components (such as digital rights management software or encryption) that protect the Services and the Devices; (e) directly or indirectly copy the Services (or any part) except for backup and archival purposes, or modify, translate, or alter in any manner, the Services (or any part), or create derivative works based on the Services (or any part); (f) create Internet ‘links’ to the Services or ‘frame’ or ‘mirror’ any part of the Services, other than on the Merchant’s own intranets or otherwise for its own internal business purposes; (g) republish, upload, post, transmit, disclose, or distribute (in any format) the Services (or any part) except as permitted herein; (h) access or use (in any format) the Services (or any part) through any time-sharing service, service bureau, network, consortium, or other means; (i) rent, lease, sell, sublicense, assign, or otherwise transfer the Merchant’s license rights to any third party, whether by operation of law or otherwise; (j) remove, relocate, or otherwise alter any proprietary rights notices from the Services and the Devices (or any part); (k) perform or attempt to perform any actions that would interfere with the proper working of the Services and/or the Devices, prevent access to or use of the Services by other users, or in Clover’s reasonable judgment impose an unreasonable or disproportionately large load on the infrastructure, network capability or bandwidth; or (l) build a competitive product or service or a product or services using similar ideas, features, functions or graphics of the Services and/or the Devices; or copy any ideas, features, functions or graphics of the Services and/or the Devices.

2.3 The Merchant shall not upload to, transmit through or otherwise post or share through the Services any content which is: (a) deemed harassing, threatening, indecent, obscene, pornographic, libellous, defamatory or otherwise objectionable, unlawful or tortious, harmful to children, or which violates third party privacy rights; or (b) an infringement of the Intellectual Property Rights of a third party.

2.4 The Merchant shall not send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, or send spam or otherwise duplicative or unsolicited messages in violation of any Applicable Laws.

3. MERCHANT RESPONSIBILITIES

3.1 The Merchant shall only use the Services and Devices for commercial purposes and will not use the Services and Devices for any household or personal purposes.

3.2 The Merchant is responsible for: (a) using and accessing the Services, and performing its obligations under the Contract, in accordance with the Contract, the Clover Ops Guide and all Applicable Laws; (b) the compliance by the Users with the obligations of the Merchant under the Contract; and (c) ensuring that there are all necessary power and Internet connections and all communications infrastructure on its premises for the proper working of the Devices, and for the payment of any fees that may be imposed by the providers of such services; and the Merchant acknowledges that its use of the Services may be subject to the terms of the Merchant’s agreements with the Merchant’s Internet/data provider, and the availability or uptime of the services provided by the Merchant’s Internet/data provider.

3.3 If the Merchant becomes aware of any breach of the Contract by a User, the Merchant shall immediately terminate such User’s access to the Services.

4. PRICES AND PAYMENT ARRANGEMENTS

4.1 This section does not apply to payments for Third Party Applications, which are governed by the Clover App Market Terms.

4.2 The Merchant shall make the payments in advance in the amounts and on the dates or with the frequency set out in the Application Form. All such amounts shall be paid in the currency specified in the Application Form unless agreed otherwise in writing by Clover.

4.3 The monthly payments shall be fixed during any agreed minimum term, but may otherwise be subject to change by Clover at any time following thirty (30) days’ notice.

4.4 All sums payable under the Contract are exclusive of value added tax and any other taxes, charges or duties to which the supply of goods or services may be subject or give rise. VAT at the relevant rate will be added to the sums payable if applicable

4.5 If any payment is not made by the Merchant in full when due, the Merchant shall pay to Clover a late fee of £5 + VAT or €7.50 + VAT, as applicable, for each month during which it remains unpaid but in no event more than the maximum permitted by law. The Merchant shall also pay to Clover a fee of £10 + VAT or €15 + VAT, as applicable, for any debit Clover attempts to make against the Merchant Bank Account that is for any reason rejected, but in no event more than the maximum amount permitted by law.

4.6 If the Merchant Bank Account is placed into collections for past due payment amounts, the Merchant agrees that Clover may recover a collection expense fee of £190 + VAT or €235 + VAT, as applicable, or for each aggregate payment requiring a collection effort, but in no event more than the maximum amount permitted by law.

4.7 The Merchant may not withhold payment of any sum by reason of any set-off of any claim or dispute with Clover or any of its Affiliates whether relating to the quality or performance of the Services or otherwise.

5. THE REGISTERED ACCOUNT

5.1 The Merchant is solely responsible for ensuring that all information regarding the Merchant and its business as set out in the Registered Account is true, accurate, current and complete, and for maintaining and updating this information to keep it true, accurate, current and complete. If at any time any such information is not true, accurate, current and complete, Clover may suspend the Registered Account and terminate any and all current or future use of the Services. As between Clover and Merchant, Merchant is solely responsible for any activities under a Registered Account or any other party’s access and/or use of the Services with the Merchant’s unique username, password or other appropriate security code, including, without limitation, Applications authorized to access Merchant’s Registered Account.

5.2 The Merchant is solely responsible for ensuring that all details regarding access to the Registered Account and any other security or access information to use or access the Services are kept safe and confidential.

5.3 The Merchant shall prevent unauthorised access to and use of the Registered Account and the Services or any other security breach. The Merchant must immediately notify Clover of any such unauthorised access or use. Clover shall not be liable for any Losses that the Merchant may incur as a result of any such unauthorised access, and refunds will not be provided if an unauthorised person has used the Registered Account, except where such use arises due to the negligence or wilful misconduct of Clover. However, the Merchant may be held liable for any Losses incurred by Clover as a result of any such unauthorised use except where such use arises due to the negligence or wilful misconduct of Clover.

5.4 Clover reserves the right to deny the Merchant access to the Services, in whole or in part, if Clover believes that any loss, theft or unauthorised use of, or access to, any data or information has occurred.

6. THIRD PARTY WEBSITES

6.1 The Services may include a web browser via which the Merchant may access other websites provided by third parties. Clover has no control over the contents of those websites. Clover does not warrant, endorse, guarantee, or assume responsibility for any such websites, their contents or their privacy practices. Clover shall not be responsible for, and expressly disclaims any and all liability related to, any loss or damages caused by use or reliance on any content, features, goods or services made available through such websites. Clover will not be a party to or in any way monitor any transaction entered into by the Merchant in connection with other websites provided by third parties.

7. OWNERSHIP AND LICENSING

7.1 Clover grants to the Merchant and its Users a personal, non-exclusive, non-transferable, revocable licence for the term of the Contract to access and use the Services to manage the Merchant’s establishment and to conduct associated point of sale activities for its internal business use only in accordance with the Contract, without the right to sub-licence or assign in any way.

7.2 All Intellectual Property Rights in or related to the Services are and remain the sole and exclusive property of Clover, and all right, title and interest associated with the Services not expressly granted by Clover in clause 7.1 are withheld.

7.3 The Merchant is not granted any rights or licence in respect of the trademarks, service marks or logos of Clover, which are and will remain the sole and exclusive property of Clover.

7.4 The Merchant may choose or Clover may invite the Merchant to submit comments or ideas about the Services, including about how to improve the Services (“Ideas”). By submitting any Idea, the Merchant agrees that: (a) Clover expressly disclaims any confidentiality obligations or use restrictions, express or implied, with respect to any Idea, (b) the Merchant’s submission will be non-confidential, and (c) Clover is free to use and disclose any Idea on an unrestricted basis without notifying or compensating the Merchant. The Merchant releases Clover from all liability and obligations that may arise from Clover’s receipt, review, use or disclosure of any portion of any Idea.

8. INDEMNITIES

8.1 The Merchant shall indemnify and hold harmless Clover and its Affiliates from and against any Losses incurred by Clover and its Affiliates for any third party claims arising from or in connection with:

• (a) any breach of the Contract by Merchant or any of the Users of the Services;

• (b) the Merchant’s use of any Third Party Personal Data obtained in connection with the Merchant’s use of the Services or any Application;

• (c) the use by the Merchant and the Users of any Application;

• (d) any activities under the Registered Account, or any other party’s access and/or use of the Services with the Merchant’s unique username, password, API key, or other appropriate security code;

• (e) Merchant’s failure to maintain reasonable security in connection with a Registered Account or Device;

• (f) any data breach, information security incident, or similar, arising from Merchant’s or its Users’ action or inaction; and

• (g) insofar as Clover processes Personal Data as a processor (as set out in clause 10), the processing by Clover of (i) Merchant Personal Data and/or (ii) Third Party Personal Data, in each case in accordance with the Contract.

9. LIMITATION OF LIABILITY

9.1 Nothing in the Contract excludes or limits the liability of either party for:

• (a) death or personal injury caused by its negligence;

• (b) breach of any obligation implied by law (or applicable Irish law for Merchants registered in the Republic of Ireland); or

• (c) fraud or fraudulent misrepresentation.

9.2 Subject to clause 9.1 , the maximum aggregate liability of Clover arising to the Merchant under or in connection with the Contract in respect of the year in which the liability arises, whether arising from tort (including negligence), breach of contract, statutory duty or otherwise, shall in no event exceed the lesser of either (a) thirty thousand pounds sterling (£30,000); or (b) the aggregate amount of the fees paid and payable by the Merchant to Clover under the Contract during the twelve (12) months immediately prior to the date on which the cause of action first arose.

9.3 Subject to clause 9.1 , 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.

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

9.5 The Merchant acknowledges that:

• (a) The merchant acquirer is not a party to the Contract and has no responsibility for the provision of the Services which shall remain Clover's sole responsibility; and

• (b) The Services do not include acquiring services or the provision of Devices or peripherals; the merchant acquirer is responsible for the provision of merchant acquiring services and (unless otherwise agreed by Clover) for Devices and peripherals to the Merchant under a separate contractual arrangement.

10. PRIVACY AND DATA USE

10.1 Clover shall process Personal Data that it receives under the Contract in accordance with the Data Protection Laws. The Merchant shall process Merchant Personal Data and Third-Party Personal Data in accordance with the Data Protection Laws. Merchant shall not cause Clover to breach the Data Protection Laws, whether directly or indirectly, or by action or inaction.

10.2 The parties acknowledge that, in relation to Personal Data processed by Clover under the Contract, Clover may act as a controller or processor, depending on the processing activities it performs. Clover processes Personal Data as a processor on behalf of the Merchant as stated in Section 10.3 below and when it carries out the following data processing activities:

Merchant instructs Clover to retain records in accordance with Clover’s standard record retention schedule, as may be amended from time to time, and which is available upon request. In all other circumstances, Clover processes Personal Data as controller and determines the purposes and means of the processing of Personal Data. Where Clover and Merchant both act as controllers, the parties acknowledge and agree that both parties are independent controllers and do not act as joint controllers. Clover’s Privacy Notice, which may be updated from time to time, is currently available at https://www.eu.clover.com/privacy-policy. The Merchant acknowledges that, as controller, it chooses to use the Services and the Applications to process Third Party Personal Data and as such it is deciding the manner in which and the purposes for which the Third-Party Personal Data is processed.

10.3 If and when the Merchant subscribes to, installs or downloads an Application from the App Market that involves the transfer of any Third-Party Personal Data from Clover to a Developer, or from a Developer to Clover:

• (a) The parties agree that for the purpose of transferring of Merchant’s Third Party Personal Data between Clover and Developer, Merchant acts as the controller, Clover acts as the processor. The parties further acknowledge and agree that Developer’s role in processing Third Party Personal Data is determined by the App Agreement; and that Clover does not act as a processor on behalf of Developer.

• (b) the Merchant hereby authorises and instructs Clover to process the Third Party Personal Data to facilitate the Merchant’s ongoing use of the Application, including the disclosure of certain categories of Third Party Personal Data to the Developer and the receipt of Third Party Personal Data from the Developer, as may be required by the Application, until such time as Merchant instructs Clover otherwise. Merchant acknowledges and agrees that it is solely responsible for instructing a Developer to cease processing and/or destroy Third Party Personal Data; and

• (c) Merchant must ensure that the App Agreement complies with Data Protection Laws, including (i) where the Developer is determined by the App Agreement to act as a processor on behalf of Merchant, by meeting the requirements of GDPR article 28; and (ii) where performance of that App Agreement involves a Restricted Transfer (as defined below), by establishing and implementing a legal basis under articles 45-47 of the GDPR and the UK GDPR (as applicable) in respect of that Restricted Transfer (a “Data Transfer Solution”). For the purposes of this Section 10.3, “Restricted Transfer” means a transfer of Merchant Personal Data and/or Third Party Personal Data from Merchant to a Developer based outside the United Kingdom and / or European Economic Area via Clover, which would be prohibited by the Data Protection Laws without a Data Transfer Solution. The Merchant acknowledges and agrees that Clover is not, and the Merchant is solely, responsible for ensuring that any Restricted Transfer complies with Data Protection Law (including ensuring that adequate safeguards are in place in relation to such Restricted Transfer).

• (d) Standard Contractual Clauses.

  • (i) Subject to Section 10.3(d)(ii) 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, Merchant agrees that Clover shall, subject to and pursuant to Clover’s agreement with the relevant Developer, enter into the relevant Standard Contractual Clauses (having regard to the Developer’s status as a Controller or Processor for the purposes of the App Agreement) with the relevant Developer (as ‘data importer’) on behalf of Merchant (as ‘data exporter’), and Merchant hereby irrevocably appoints Clover as its agent for this limited purpose for the duration of the term of the relevant App Agreement. Subject to Section 10.3(d)(ii) below, any Standard Contractual Clauses entered into pursuant to the foregoing sentence of this Section 10.3(d)(i) shall be deemed to come into effect, and be incorporated into the relevant App Agreement, automatically upon the commencement of the relevant Restricted Transfer. A copy of the relevant Standard Contractual Clauses shall be made available through the link provided to the Merchant by the Developer in the relevant App Agreement or on request directly to the Developer.

  • (ii) If at any time an alternative Data Transfer Solution is established and implemented between Merchant and any relevant Developer in respect of any Restricted Transfers (e.g., the third country in which Developer is established becomes the subject of an adequacy decision of the European Commission): (A) the operation of Section 10.3(d)(i) above shall be suspended with respect to all Restricted Transfers to which that alternative Data Transfer Solution applies; and (B) such alternative Data Transfer Solution shall supersede Section 10.3(d)(i) (including any Standard Contractual Clauses entered into pursuant to that Section) with respect to such Restricted Transfers.

10.4 The Merchant shall maintain and make available to Customers and employees and other staff and Users in each case whether actual, prospective or past, and all other relevant third parties, and any other data subject whose personal data it may ask Clover to process in accordance with the Contract, a Privacy Policy applicable to Merchant’s use of the Services, Device, and Applications in accordance with Data Protection Laws. The Privacy Policy must include disclosures that Clover may act as a controller, and such notices must include details of the categories of Third Party Personal Data processed, the purposes for which the processing takes place and any possible disclosures of the Third Party Personal Data to other third parties, in each case as is more particularly referred to in the Contract.

10.5 To the extent that Clover processes Third Party Personal Data as a processor on behalf of the Merchant pursuant to the Contract, Clover shall, solely with respect to the Third Party Personal Data processed in the capacity of a processor:

• (a) only process Third Party Personal Data to the extent necessary to comply with its obligations or to receive the benefit of its rights, in each case under the Contract, or as may be required for compliance with the Applicable Laws;

• (b) only process Third Party Personal Data in accordance with the Contract and with the written instructions of the Merchant as such instructions are (i) set out in these Terms of Service; or (ii) agreed in writing between the parties;

• (c) ensure that Clover staff authorised to process the Third Party Personal Data will be subject to appropriate obligations of confidentiality;

• (d) take all measures required by Article 32 (Security of Processing) of the GDPR;

• (e) taking into account the nature of the processing, Clover will assist Merchant by appropriate technical and organizational measures, insofar as this is possible, to respond to requests for exercising of data subject rights set out in Chapter III of the GDPR and the UK GDPR (Rights of the data subject). Clover will be entitled to refuse or limit its assistance with a request where, in Clover’s reasonable opinion:

• (i) the right the data subject is seeking to exercise does not exist;

• (ii) there is an exemption applicable to the exercise of that right; or

• (iii) Merchant is in the position to fulfil the request without Clover’s assistance;

• (f) if requested, provide reasonable assistance to Merchant to comply with its obligations pursuant to Articles 32 to 36 of the GDPR and UK GDPR, taking into account the nature of processing and the information available to Clover;

• (g) following termination of these Terms of Service, Clover will delete all Third Party Personal Data and/or transfer all Third Party Personal Data to Merchant as agreed between the parties, unless the laws applicable to Clover require storage of the Third Party Personal Data;

• (h) where requested, provide reasonable information to Merchant, solely to the extent required to demonstrate compliance with Clover’s obligations under this clause 10, and permit Merchant, or a third-party auditor acting under Merchant’s direction, to conduct audits, including inspections, subject to the audit terms notified to Merchant by Clover provided that they are consistent with the GDPR and the UK GDPR;

• (i) Clover may notify Merchant if, in Clover’s opinion, an instruction received from Merchant is in violation of Data Protection Law and may refuse to perform such instruction;

• (j) notify the Merchant about any significant unlawful disclosure of Third Party Personal Data;

• (k) be entitled to utilize sub-processors for performing the Services, provided that such sub-processors shall process the Third Party Personal Data in compliance with the Contract;

• (l) will inform the Merchant of any intended additional or replacement sub-processor by:

• (i) in respect of Affiliates, publishing such changes at https://www.firstdata.com/privacy; or

• (ii) in respect of sub-processors which are not Affiliates, providing prior notice to the Merchant; and

• (m) enter into a written agreement with all sub-processors containing obligations which are equivalent to those applicable to Clover in this clause 10. Clover will remain liable to Merchant for the performance of any sub-processor's obligations.

10.6 To the extent that Clover processes Third Party Personal Data as a processor on behalf of the Merchant, the Merchant warrants and undertakes that at all times:

• (a) the Merchant is and shall be lawfully permitted to process, and to instruct Clover to process, Third Party Personal Data in accordance with the Contract; and

• (b) where required by the Data Protection Laws, it will provide notices to and obtain valid consents from its Customers and employees and other staff and Users in each case whether actual, prospective or past, and all other relevant third parties, and any other Data Subject whose Personal Data it may ask Clover to process in accordance with the Contract, and that it has appropriate policies and procedures in place for giving such notices and obtaining such consents.

10.7  Insofar as Clover is a processor in respect of Third Party Personal Data, Merchant instructs Clover to transfer such Third Party Personal Data to a BCR Member, which may be located in a third country, where such transfer relates to the provision of the Services and is permitted by the Processor BCRs. To the extent Clover transfers the Third Party Personal Data to a third country in accordance with this clause, Clover will (and will procure that each BCR Member will) perform its obligations under the Processor BCRs. The Merchant will, prior to the transfer of the Third Party Personal Data to Clover, inform the relevant data subjects:

• (a) that the Third Party Personal Data may be processed by processors based outside the United Kingdom and European Union;

• (b) to the extent that the Third Party Personal Data includes any special categories of personal data (as described in article 9 of the GDPR and UK GDPR), that the Third Party Personal Data could be transmitted to a third country not providing adequate protection; and of the existence of the Processor BCRs and will make available to the data subjects upon request a copy of the Processor BCRs, as well as a copy of the relevant sections of these Terms of Service relating to data protection.

10.8 Clover may process Third Party Personal Data to create aggregated, anonymized, or de-identified information. Any aggregated, anonymized, or de-identified information shared in this context will not contain Merchant Personal Data or Third Party Personal Data. Clover may use and disclose to third parties such aggregated, anonymized or de-identified information, including for purposes of industry analysis and demographic profiling.

10.9 Merchant may not use the Services to 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, unless you have received prior written consent to do so from Clover.

10.10 Merchant agrees to provide reasonable assistance to help Clover comply with its privacy or data protection legal obligations, or defend against any claims or investigations, in either case, in any way arising from or related to the Contract. Merchant acknowledges and agrees that Merchant is solely responsible for all privacy and information security obligations and liabilities relating to any data that Merchant downloads, exports, or otherwise transfers from the Services to Merchant’s own information environment. Merchant agrees to promptly notify Clover of any opt-outs and legally valid data subject rights requests relating to data with Clover’s possession, custody, or control.

10.11 Merchant acknowledges and agrees that Clover may process, transfer and use Merchant Personal Data for purposes of performance of the contract, the Services, and for analytics and optimization of Clover’s services, generally.

11. CONFIDENTIALITY

11.1 Each party (“Recipient Party”) which receives Confidential Information of the other party (“Disclosing Party”) shall:

• (a) keep confidential the Confidential Information of the Disclosing Party; and

• (b) not disclose the Confidential Information of the Disclosing Party in whole or in part to any other person without the Disclosing Party’s prior written consent, save to its Representatives to the extent necessary for the performance of its obligations under the Contract, and then provided that the Recipient Party ensures that its Representatives are aware of and comply with these confidentiality obligations.

11.2  The obligations of confidentiality under clause 11.1 shall not apply to any Confidential Information which:

• (a) must be disclosed by law or in response to a valid, legally compliant request by a law enforcement, regulatory or governmental authority, provided that (to the extent it is permitted to do so) the Recipient Party gives all reasonable notice of such disclosure to the Disclosing Party;

• (b) was known to the Recipient Party before its receipt from the Disclosing Party;

• (c) is lawfully in the public domain or possession of a third party other than by reason of breach;

• (d) is independently developed without access to the Disclosing Party’s Confidential Information; or

• (e) is authorised for release by the written consent of the Disclosing Party.

12. SUSPENSION AND TERMINATION

12.1  Upon as much notice as is commercially practical, Clover may suspend the Services or terminate the Contract without liability to the Merchant and with immediate effect if:

• (a) Clover determines that the use by the Merchant or any User of the Services (i) poses a material security risk to Clover or any third party; (ii) may have a material adverse impact on the Services or the systems or data of any other merchant; or (iii) may subject Clover, its Affiliates, or any third party to material liability;

• (b) Clover has reasonable grounds to suspect that the Merchant and/or any of the Users is using the Services for fraudulent, illegal or unauthorised purposes;

• (c) the Merchant commits a material breach of any term of the Contract and such breach is not capable of remedy or, if capable of remedy, is not remedied within a period of thirty (30) days of being notified in writing to do so; or

• (d) an Insolvency Event of the Merchant occurs, or the Merchant ceases or threatens to cease to carry on the whole or any material part of its business.

12.2  The expiry or termination of the Contract for any reason shall not prejudice or affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

12.3  Upon the expiry or termination of the Contract for any reason:

• (a) any and all amounts outstanding and any unpaid amounts due and owed under the Contract and/or any App Agreement or Clover App Agreement shall become immediately due and payable; and

• (b) neither party shall have any further right or obligation with respect to the other party except as set out in this clause 12 and in the following additional clauses which shall continue with full force and effect: clause 7 (Ownership and Licensing), clause 8 (Indemnities), clause 9 (Limitation of Liability), clause 10 (Privacy and Data Use), clause 11 (Confidentiality), clause 15 (General) and clause 16 (Definitions).

13. CHANGES TO THESE TERMS OF SERVICE

13.1 Clover reserves the right to make changes to these Terms of Service at any time by publishing a revised version of these Terms of Service on the Website. The revised version of the Terms of Service will take effect from the time at which it is first published. The Merchant will be subject to the Terms of Service in force at the time that the Merchant uses the Services. The Merchant’s continued use of the Services indicates its acceptance of such updates and changes. The Merchant is advised to check the Terms of Service from time to time for any updates or changes that may affect the Merchant. Clover last modified these Terms of Service on the date stated at the beginning of these Terms of Service.

14. ELECTRONIC COMMUNICATIONS

14.1 The Merchant agrees that Clover may provide notices and other information regarding the Services to the Merchant via the method(s) described in the relevant clause of these Terms of Service or in the manner set out below:

• (a) Clover may provide disclosures required by law and other information about the Merchant’s legal rights and duties to the Merchant electronically;

• (b) where required or requested, the Merchant’s electronic signature (via “click-through” or other method) on agreements and documents relating to the Services has the same effect as if the Merchant signed them in ink;

• (c) Clover may send all communications, billing statements, amendments to the Services, notices, and other disclosures or information regarding the Services (collectively defined as “Disclosures”) to the Merchant electronically (i) via e-mail, (ii) by access to a web site that Clover designates in an e-mail notice which it sends to the Merchant at the time the information is available, or (iii) to the extent permissible by law, by access to a website that Clover will generally designate in advance for such purpose;

• (d) if the Merchant wants a paper copy, the Merchant can print a copy of the Disclosure or download the information for its records; and

• (e) this consent applies to all future Disclosures sent to the Merchant in connection with the Services or the Contract.

14.2 By consenting, the Merchant agrees that electronic Disclosures have the same meaning and effect as if Clover provided paper Disclosures to the Merchant. When Clover sends the Merchant an email or other electronic notification alerting the Merchant that the Disclosure is available electronically and makes it available online that shall have the same meaning and effect as if Clover provided a paper Disclosure to the Merchant, whether or not the Merchant chooses to view or print or download the Disclosure.

15. GENERAL

15.1 The waiver by either party of any breach of the Contract by the other party shall not operate as a waiver of subsequent or other earlier breaches of the same or a different kind. No failure or delay by a party to exercise any of its rights under the Contract shall constitute a waiver of such rights.

15.2 If any provision of the Contract is found to be invalid, unenforceable or illegal, then such provision shall be severed and the remainder of the Contract shall continue with full force and effect.

15.3 The Merchant shall not assign the Contract, or delegate or sublicense any of its rights under the Contract, without the prior written consent of Clover. Any assignment or transfer in breach of this clause 15.3 will be void. Subject to the foregoing, the Contract will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

15.4 The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 15.5 No third party will have any rights under, or be able to enforce, the Contract.

15.6 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to 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 the Contract. Nothing in this clause 15.6 shall limit or exclude any liability for fraud.

15.7 The Contract is governed by English law unless the Merchant is registered in the Republic of Ireland in which event Irish law shall govern the Contract. The parties irrevocably submit to the exclusive jurisdiction of the courts of England (or Ireland in the event that the Merchant is registered in the Republic of Ireland) 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).

15.8 For the avoidance of doubt, this Contract does not include provisions regarding the specifications and features of Devices and peripherals, related maintenance, warranty or support commitments (which where applicable shall be the subject of separate terms between Merchant and third party Device/peripherals reseller/leasing entity.

16. DEFINITIONS

16.1 In these Clover Terms of Service the following terms shall have the following meanings:

Affiliate means any present or future legal entities that are directly or indirectly owned or controlled by Fiserv, Inc. (or its successor entities. The term “control” in the preceding sentence means the ability to direct the management of a legal entity and the term “owns” or “ownership” mean the beneficial ownership of more than fifty percent (50%) of the equity interest in a legal entity;

“App Agreement” means for any Application which is subscribed to, installed or downloaded by the Merchant from the App Market, the contract which is created between the Merchant and the Developer regarding the Merchant’s use of that Application;

“App Market” means the electronic marketplace operated by Clover through which the Merchant may browse, locate, subscribe to, install, download, access and uninstall Applications;

App Terms means for any Application the terms and conditions of the Developer which govern the Merchant’s use of such Application;

Applicable Laws means 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;

Application means any software, content or digital materials which are available for download by the Merchant through the App Market and includes any subsequent bug fixes, updates, upgrades, modifications, enhancements, revisions, new releases or new versions of such software, content or digital materials. Under the Contract references to "Application(s)" shall be read as references to any relevant Third Party Application(s) unless otherwise indicated;

Application Form means the application form completed for the Merchant;

BCR Member means each Affiliate that has entered into a binding agreement with First Data Corporation to comply with the Processor BCRs;

Clover means Marketplace Merchant Solutions Limited with registered number 539224 and with registered address at Unit 9, Richview Office Park, Clonskeagh Road, Dublin 14, Ireland;

Clover Application means an application that is owned by or licensed to Clover;

Clover App Market Terms means the terms regulating the access to and use of the App Market which shall apply if the Merchant uses the App Market; such terms supplement these Clover Terms of Service and can be found at https://www.eu.clover.com/app-market-terms.

Clover Ops Guide means the operating procedures, requirements and guidelines regarding the Merchant’s use of the Services that are published on the Help section of the Website or otherwise notified to the Merchant in accordance with these Clover Terms of Service;

Confidential Information means any information, whether in written or any other form, which has been disclosed by a party to the other party (i) in confidence; or (ii) which by its nature ought to be regarded as confidential (regardless of whether it is marked in writing as “confidential”);

Contract means the contract created between the Merchant and Clover on the date on which Clover notifies the Merchant by email that the Registered Account has been created, and such contract incorporates the Application Form, these Terms of Service as may be amended from time to time, and any other documents (including the Clover App Market Terms) incorporated by reference;

Customer means a person who purchases goods or services from the Merchant, where such purchase is facilitated by the Services;

Data Protection Laws means (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;

Developer means any person or entity that is authorised by Clover to distribute, support and maintain one or more Applications through the App Market;

Device means the hardware manufactured by Clover and supplied by a Clover authorised third party reseller or leasing company to the Merchant under separate agreement to enable the Merchant to receive the Services; and this term excludes the Peripherals;

Disclosing Party has the meaning in clause 11.1 ;

EU personal data means the processing of Personal Data to which Data Protection Laws of the European Union, or of a Member State of the European Union or European Economic Area, was applicable prior to its processing by Clover and / or the Developer (as the case may be);

Insolvency Event occurs, with respect to a party, in the event of: (i) that party passing a resolution, or a court making an order, that such party be wound up (except for the purposes of a bona fide, solvent reconstruction or amalgamation); (ii) an order being made for the appointment of an examiner or administrator (or notice of any such actual or proposed appointment) in relation to that party or a receiver, examiner or manager being appointed over all or any part of that party’s assets or undertaking; (iii) that person being unable to pay its debts as they fall due; (iv) an encumbrancer taking possession of, or execution, sequestration or other process being levied or enforced upon, any part of the undertaking, assets, rights or revenues of that party; (v) there being proposed, in respect of that party, any voluntary arrangement with creditors under Applicable Laws or any compromise, or arrangement with creditors under Applicable Laws; or (vi) any circumstances occurring that are the equivalent of (i) to (v) above under the legislation and related case law and practice applicable to that party (where (i) to (v) above do not apply for any reason to that party);

Intellectual Property Rights means 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 which subsist or will subsist now or in the future in any part of the world;

Losses means any and all losses, damages, settlement payments, awards, expenses and other charges (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs) of an entity, together with any fines or penalties which might be imposed or assessed on an entity by a government body;

Merchant means the merchant whose details are set out in the Application Form;

Merchant Bank Account means the merchant’s bank account, the details of which are set out in the Registered Account;

Merchant Personal Data means personal data relating to the Merchant including personal data relating to the Merchant’s employees and other staff insofar as such information is not received by virtue of the use of the Services;

Peripherals means the cash drawer, kitchen printer, scanner, cable and any other peripherals supplied by a Clover authorised third party reseller or leasing company to the Merchant in connection with the Devices;

Personal Data means the personal data processed by Clover under the Contract and shall include Merchant Personal Data and / or Third Party Personal Data as applicable;

Processor BCRs means Clover’s processor binding corporate rules (as defined in the GDPR);

Recipient Party has the meaning in clause 11.1 ;

Registered Account means the account registered in the name of the Merchant for the use of the Services;

Representatives of the Merchant means its employees, officers, directors, agents, legal advisors, auditors and sub-contractors; and, in respect of Clover, means its Affiliates and the employees, officers, directors, agents, legal advisors, auditors and sub-contractors of Clover and its Affiliates;

Services means (i) the functionality provided by Clover that may be accessed by the Clover Applications which are pre-installed on and accessible via the Devices; (ii) storage of data which is generated from transactions and/or input by the Merchant onto the Devices; (iii) the capture, management and transmission of data to facilitate the merchant acquiring services provided by the merchant acquirer; (iv) integration with merchant acquiring services; and (v) the ability to perform split- tender transactions; and this term excludes payment card acceptance services and acquiring services;

Standard Contractual Clauses means the Standard Contractual Clauses (issued by EU Commission Implementing Decision (EU) 2021/914 of 4 June, excluding all clauses marked as optional, where the Appendix and Annexes to the Standard Contractual Clauses are available through the link made available by the Developer or on request directly to the Developer and where the applicable modules will be either (i) module two where, in accordance with the App Agreement, Developer acts as a Processor on behalf of Merchant (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) module one where, in accordance with the App Agreement, Developer acts as a Controller; and in respect of UK Personal Data means 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 link made available by the Developer or on request directly to the Developer shall set out:

• the details of the parties in table 1 (with no requirement for signature); and

• the appendix information listed in table 3; and

• for the purposes of table 2, the addendum shall be appended to the Standard Contractual Clauses (including the selection of modules and disapplication of optional clauses) all as described above;

Third Party Application means an Application that is owned by or licensed to a third party;

Third Party Personal Data means personal data relating to Customers and, insofar as such information is received by Clover by virtue of the use of the Services, data relating to the Merchant’s employees and other staff, in each case whether current, past or prospective;

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 Clover and / or the Developer (as the case may be);

User means an individual who is authorised by the Merchant to use the Services; and such term may include customers, employees and other staff, consultants, contractors and agents of the Merchant;

Website means the Clover website at https://www.eu.clover.com and any successor or related site designated by Clover.

The following expressions shall be construed as follows: (a) the terms “controller”, “processor”, “personal data”, “process” and “processing” have the meaning given to those terms in the Data Protection Laws; and (b) any phrase introduced by the term “including” shall be construed as illustrative and shall not limit the sense of the words proceeding such term.

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. 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.