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:
- 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;
- 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;
- the form and nature of the App Market that Clover provides may change from time to time without prior notice to you;
- 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:
- 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;
- 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
- 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:
- your acts and/or omissions in connection with the App Market (including any resulting loss or damage that Clover may suffer); and
- 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:
- obtain validation by Clover of your Developer Account;
- 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
- 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:
- any information provided by you regarding the Installed App is not true, accurate, current and/or complete; or
- 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:
- 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
- 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:
- to use the Clover API solely on computers owned or controlled by you; and
- 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:
- use, modify, adapt, reformat or reproduce the Clover API or any portion thereof, except as expressly permitted under these Terms;
- distribute, sublicense, assign, transfer or otherwise make available the Clover API to any third party without the prior written consent of Clover;
- 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;
- interfere with, bypass, or disable any features or functionality that is embedded in or included with the App Market or the Clover API; or
- 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:
- to publish and enable the installation of your Apps via the App Market; and
- 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:
- 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
- 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:
- 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;
- 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;
- 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;
- 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;
- 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
- 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:
- your use of the Clover API or the App Market to publish and/or allow the installation of your Apps;
- your violation of these Terms or Applicable Laws;
- 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;
- the breach by any of the Published Apps and/or Installed Apps of the Clover App Market Developer Program Policies;
- your material breach of an App Agreement in respect of any of the Installed Apps
- your failure to maintain reasonable security in connection with your App, your use of the Clover API or the App Market
- any data breach, information security incident, or similar, arising from your action or inaction; and/or
- 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:
- is or becomes public knowledge without your fault or action;
- is received by you from a third party who received and disclosed the information without violation of any confidentiality restriction;
- is independently developed by you without use of or access to any Confidential Information; or
- 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:
- 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
- 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
- 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:
- Clover will terminate your Developer Account and you will no longer have the right to access or use your Developer Account;
- 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;
- any and all amounts outstanding and any unpaid amounts due and owed under the Contract will become immediately due and payable;
- you must promptly return to Clover any loaned Clover hardware devices in your possession or control;
- 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;
- 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;
- please refer to the Part of these Terms that applies to the App Market in the relevant jurisdiction(s) for any additional provisions; and
- 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:
- Clover will terminate your Developer Account and you will no longer have the right to access or use your Developer Account;
- 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;
- you must ensure that all App Agreements for the Installed Apps automatically terminate with immediate effect;
- any and all amounts outstanding and any unpaid amounts due and owed under the Contract will become immediately due and payable;
- you must promptly return to Clover any loaned Clover hardware devices in your possession or control;
- 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;
- 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
- 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