4D Payments Gateway – SOFTWARE LICENSE
THE FOLLOWING IS A SOFTWARE LICENSE RELATED TO YOUR USE OF 4D Payments Gateway AND RELATED DOCUMENTATION (THE “LICENSED SOFTWARE”). BY CLICKING ON THE “YES” BUTTON OF THE INSTALL PROGRAM, OR BY OPENING THE PACKAGE CONTAINING THE CDs, YOU ARE CONSENTING TO BE BOUND BY THIS LICENSE AGREEMENT, AND THE TERMS SHALL BE BINDING WITH RESPECT TO YOUR USE OF THE LICENSED SOFTWARE. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, CLICK ON THE “NO” BUTTON, AND THE INSTALLATION PROCESS WILL CEASE, OR IF YOU HAVE RECEIVED SOFTWARE ON CDs, THEN RETURN THE PRODUCT TO THE PLACE OF PURCHASE.
4D Payments Gateway – SOFTWARE LICENSE
1. DEFINITIONS. “Authorized User” means one person, named developer, employee or other temporary worker authorized to Use the Licensed Software for personal use or while performing duties within the scope of their employment or assignment. “Commercial Use” means any Use or handling of the Licensed Software by any person or entity, including but not limited to the Authorized User, for financial reasons, whether or not profitable. “License Key” means a unique key-code that enables the Authorized User to Use the Licensed Software. Only 4D PAYMENTS and or its representatives are permitted to produce License Keys for Licensed Software. “Licensed Software” means the object code version of the software product(s) listed in the order for which valid License Keys have been issued by 4D PAYMENTS or its representatives to the Authorized User. Although the program media may contain other software products, you are licensed to Use only the designated Licensed Software listed in the order for which valid License Keys have been issued. “Use” means to install, load, view, print, update, access, utilize, or store the Licensed Software. “Server” or “Server Environment” means any computer where more than one person can simultaneously either directly or remotely access the Licensed Software. For the avoidance of doubt, the definition of Server includes physical hardware servers located on your premises or in a hosted environment or in a cloud environment, whether or not the physical server is a dedicated machine or a virtual server installation. “Workstation or Desktop” means an attended or remotely controlled computer upon which the Licensed Software is loaded, that is operated by no more than one person at a time.
2. LICENSE GRANTS. Your rights to Use the Licensed Software differ based on the product option you have purchased as listed in the order:
2(a). SINGLE DESKTOP LICENSE. If the product option you have purchased is marked as a “DESKTOP”, “SINGLE DESKTOP”, “WORKSTATION”, or “SINGLE WORKSTATION” license, the following terms apply: In consideration of your payment of applicable license fees, and subject to the terms, conditions, and restrictions set forth in this Agreement, 4D PAYMENTS hereby grants to you a limited, non-exclusive, non-transferable license to Use the Licensed Software as follows: (i) install and Use the most recent version and edition of the Licensed Software specified in the License Key; (ii) Use the Licensed Software in conjunction with the maximum number of Desktop(s) or Workstation(s) specified in the order; and (iii) make one backup copy of the Licensed Software for archival purposes.
2(b). SERVER LICENSE. If the product option you have purchased is marked as a “SERVER” or “SINGLE SERVER” license, the following terms apply: In consideration of your payment of applicable license fees, and subject to the terms, conditions, and restrictions set forth in this Agreement, 4D PAYMENTS hereby grants to you a limited, non-exclusive, non-transferable license to Use the Licensed Software as follows: (i) install and Use the most recent version and edition of the Licensed Software specified in the order; (ii) Use the Licensed Software in conjunction with the maximum number of Servers specified in the order; and (iii) make one backup copy of the Licensed Software for archival purposes.
3. LICENSE RESTRICTIONS. The following restrictions apply to all of the licenses set forth in Section 2 above. You may NOT: (i) sell, redistribute, encumber, give, lend, rent, lease, sublicense, or otherwise transfer the Licensed Software, or any portions of the Licensed Software (except as set forth herein), to anyone without the prior written consent of 4D PAYMENTS; (ii) reverse-engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Licensed Software, or create derivative works from the Licensed Software; (iii) share the same License Key between different Authorized Users unless specified in the license grant. You acknowledge and agree that any breach of this Section 3 will constitute a material breach of this Agreement and will result in an immediate termination of the licenses granted herein.
4. APPLICATION DISTRIBUTION. You may not distribute the Licensed Software as a runtime component of your Application(s) without explicit permission from 4D PAYMENTS.
5. TRIAL, EVALUATION, DEMONSTRATION, OR BETA LICENSES. If the Licensed Software product you have downloaded or otherwise obtained is marked as “TRIAL SOFTWARE” or “EVALUATION COPY” or “DEMONSTRATION COPY” or “BETA LICENSE”, (hereinafter collectively referred to as “Trial Software”) the following license terms apply: Subject to the terms, conditions, and restrictions set forth in this Agreement, 4D PAYMENTS hereby grants to you a limited, non-exclusive, non-transferable license to Use the Trial Software as follows: (i) you may install one copy of the Trial Software for internal testing purposes only for a period of 30 calendar days from the date of installation (“Evaluation Time”). Upon expiration of the Evaluation Time, the Trial Software must be erased from the computer it was installed on and all copies destroyed. Under no circumstances should Trial Software be employed for Commercial Use. Trial Software may contain mechanisms that inhibit its ability to function at a later date.
6. NON-COMMERCIAL LICENSE. If the Licensed Software product you have downloaded or otherwise obtained is marked as “PERSONAL”, “HOBBYIST”, “NON-COMMERCIAL”, or “EDUCATIONAL” the following license terms apply: Subject to the terms, conditions, and restrictions set forth in this Agreement, 4D PAYMENTS hereby grants to you a limited, personal, non-exclusive, non-transferable license to Use the Licensed Software as follows: (i) personal and non-Commercial Use of the most recent version and edition of the Licensed Software specified in the License Key; (ii) non-Commercial Use of the Licensed Software in conjunction with the maximum number of Authorized User(s) specified in the product option You have purchased; and (iii) make one backup copy of the Licensed Software for archival purposes. You may not distribute Applications that use the Non-Commercial Software as a runtime component.
7. RIGHTS IN LICENSED SOFTWARE. You acknowledge that the Licensed Software and any copies, regardless of the form or media in which the original or copies may exist, are the sole and exclusive property of 4D PAYMENTS; by accepting this License, you do not become the owner of the Licensed Software recorded on the media. You further acknowledge that the Licensed Software, including the code, logic and structure of the Licensed Software, contain valuable trade secrets belonging to 4D PAYMENTS. You agree to use your best efforts to prevent the use of the Licensed Software in an unlicensed manner, including but not limited to, on or by non-licensed Workstations or Servers or by persons, programs or interfaces not licensed to access or use the Licensed Software. You further agree to secure and protect the Licensed Software consistent with the maintenance of 4D PAYMENTS’s rights in the Licensed Software, as set forth in this License. You agree that 4D PAYMENTS can use the information provided during the purchase of the Licensed Software to deliver and confirm your purchase, in the marketing or promotion of the Licensed Software, or for other relevant purposes, as well as contact you again about other products, services, or offers.
8. SUBSCRIPTIONS; UPDATES and UPGRADES. Updates and upgrades to the Licensed Software, including those provided in a Subscription during the Subscription Term, may be provided by 4D PAYMENTS from time-to-time, and, if so provided by 4D PAYMENTS, are provided upon the terms and conditions offered at that time by 4D PAYMENTS in its sole discretion. 4D PAYMENTS may provide updates and upgrades to the Licensed Software for free or for any charge, at any time or never, and through its chosen manner of access and distribution, all in 4D PAYMENTS’ sole discretion.
9. OPEN SOURCE SOFTWARE. If you use open source software or any other third party software not supplied by 4D PAYMENTS in conjunction with the Licensed Software as part of the Application, you must ensure that its use does not: (i) create, or purport to create, obligations of use with respect to the Licensed Software; or (ii) grant, or purport to grant, to any third party any rights to or immunities under 4D PAYMENTS’s intellectual property or proprietary rights in the Licensed Software.
10. OWNERSHIP. You acknowledge that the Licensed Software is protected by U.S. Copyright Law and international treaty and that unauthorized reproduction or distribution is subject to civil and criminal penalties. The Licensed Software is licensed, not sold, to you for Use solely under the terms of this Agreement. The Licensed Software, and all worldwide copyrights and other intellectual property rights therein, are and shall remain the exclusive property of 4D PAYMENTS and its licensors, if any. Except for the limited rights expressly granted under this Agreement, You shall have no right, title, or interest (whether by implication, estoppel, or otherwise) in or to the Licensed Software or any intellectual property rights therein. 4D PAYMENTS reserves all rights (including without limitation any and all trademarks in and to any trade name, logo, or trademark of 4D PAYMENTS or 4D PAYMENTS’ affiliated companies or licensors) not expressly granted to you by virtue of this Agreement. Except as otherwise expressly provided for in this Agreement, You acquire no rights of any kind in or to, any product designation under which the Licensed Software was or is marketed and shall not make use of the same for any reason except as expressly authorized by this Agreement or otherwise authorized in writing by 4D PAYMENTS.
11. THIRD PARTIES. You acknowledge and agree that the Licensed Software may be used to connect to or integrate with software and other technology owned and controlled by third parties. In order to connect to or integrate with any and all other such third party software or technology you may be subject to a license agreement with that third party. You acknowledge and agree that you will look solely to the applicable third party and not to 4D PAYMENTS to enforce any of your rights with regard to such third party software or technology.
12. COPIES. The Licensed Software is copyrighted under the laws of the United States and international treaty provisions. Notwithstanding the copyright, the Licensed Software contains trade secrets and confidential information of 4D PAYMENTS. You agree not to disclose or otherwise make available any part of the Licensed Software to any third party on any basis, other than as set forth in this Agreement. You agree not to make any copies of the documentation that is provided in hard copy as part of the Licensed Software.
13. TERM AND TERMINATIONS. Subject to the limitations herein, the licenses granted under this Agreement shall be valid until the end of the subscription period specified in the purchase agreement unless (i) you fail to pay any required fee; (ii) otherwise fail to comply with any of the terms and conditions of the Agreement; in which case the license shall terminate immediately, and without additional prior notice. Upon termination or expiration of this Agreement, you shall return the original and all copies, complete or partial, of the Licensed Software to 4D PAYMENTS, and shall not access such media for the purpose of recovering any of the Licensed Software from any copies that may exist with respect to media containing regular backups of your computer or computer system. The provisions of this Agreement that require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding such expiration or termination.
14. DISCLAIMER OF WARRANTY. THE LICENSED SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, 4D PAYMENTS SPECIFICALLY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE LICENSED SOFTWARE OR DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE LICENSED SOFTWARE IS ASSUMED BY YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY 4D PAYMENTS OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. FURTHER, THE LICENSED SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE LICENSED SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). 4D PAYMENTS AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
15. LIMITATION ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL 4D PAYMENTS’ TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND ARISING HEREUNDER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY YOU FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM. 4D PAYMENTS’S LICENSORS AND THEIR SUPPLIERS SHALL HAVE NO LIABILITY TO YOU FOR ANY DAMAGES SUFFERED BY YOU OR ANY THIRD PARTY AS A RESULT OF USING THE LICENSED SOFTWARE, OR ANY PORTION THEREOF. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL 4D PAYMENTS, ITS LICENSORS, OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, ANY COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, OR ANY PORTION THEREOF, EVEN IF 4D PAYMENTS, ITS LICENSORS AND/OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY. EACH EXCLUSION OF LIMITATION IS INTENDED TO BE SEPARATE AND THEREFORE SEVERABLE.
16. INDEMNIFICATION. You agree to indemnify, hold harmless, and defend 4D PAYMENTS and its suppliers and resellers from and against any and all claims or lawsuits, including attorney’s fees, which arise out of or result from (a) your breach of any of the terms and conditions of this Agreement; and (b) the use, procurement, reproduction or distribution of Applications by you, your users or other third parties.
17. U.S. GOVERNMENT RESTRICTED RIGHTS. The Licensed Software is Commercial Computer Software provided with RESTRICTED RIGHTS under Federal Acquisition Regulations and agency supplements to them. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subsection (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFAR 255.227-7013 et. seq. or 252.211-7015, or subsections (a) through (d) of the Commercial Computer Software Restricted Rights at FAR 52.227-19, as applicable, or similar clauses in the NASA FAR Supplement. Contractor/manufacturer is 4D PAYMENTS INC., 10 Glenlake Pkwy, STE 130, Atlanta, GA 30328.
18. EXPORT REGULATIONS. The Licensed Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You agree to comply strictly with all such regulations, and agree to obtain all necessary licenses to export, re-export, or import the Licensed Software.
19. USE REPORTING, LICENSE VIOLATIONS AND REMEDIES. 4D PAYMENTS reserves the right, and you authorize 4D PAYMENTS, to gather data on key usage including license key numbers, Authorized Device IP addresses or other applicable device identifiers (including MAC address or UDID), domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. 4D PAYMENTS reserves the right, and you authorize 4D PAYMENTS, to remedy violations of any of the terms of this Agreement immediately upon discovery, by charging the then current list price of unauthorized keys to the payment instrument used to make the original, authorized purchase, or by any other means necessary, including remotely disabling the Software. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this Agreement is considered to be violation of this Agreement and will result in immediate termination of this Agreement pursuant to Section 13.
20. ENTIRE AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU ALSO AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN 4D PAYMENTS INC. AND YOU, WHICH SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT, OR LICENSE, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. This Agreement shall be construed in accordance with the internal laws of Georgia and all disputes shall have exclusive venue in the federal and state courts in Fulton County, Georgia, and both parties consent to the jurisdiction of these courts. If any term of this Agreement shall be found invalid, the term shall be modified or omitted to the extent necessary, and the remainder of the Agreement shall continue in full effect.