INGENICO SOFTWARE DEVELOPER PROGRAM TERMS
INGENICO SOFTWARE DEVELOPER PROGRAM TERMS
CAUTION/NOTICE TO USER – READ THESE TERMS CAREFULLY BEFORE USING THE ISDP PORTAL AND ITS RESOURCES: THESE TERMS APPLY TO YOUR USE OF THE ISDP PORTAL AND ITS RESOURCES AS DEVELOPER AND ARE BETWEEN (A) YOU, THE LEGAL PERSON OR ENTITY WHICH BY ITS AGENTS OR REPRESENTATIVES WILL USE THE ISDP PORTAL AND ITS RESOURCES AND (B) INGENICO TERMINALS SAS, A CORPORATION REGISTERED WITH THE PARIS TRADE AND COMPANY REGISTER UNDER THE NUMBER B 538 600 412, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 28-32 BOULEVARD DE GRENELLE, 75015 PARIS, FRANCE, DULY REPRESENTED.
PROVIDED THAT YOU ACCEPT THESE TERMS IN ACCORDANCE WITH THE FOLLOWING PARAGRAPH, YOUR ACCESS TO AND USE OF THE ISDP PORTAL AND ITS RESOURCES SHALL BE GRANTED AS PER THE AGREEMENT AS DEFINED IN THESE TERMS.
BY CLICKING THE ACCEPT BUTTON REFERRING TO THESE TERMS AND/OR BY USING THE ISDP PORTAL AND ITS RESOURCES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED THESE TERMS.
YOU ACKNOWELDGE AND AGREE THAT THE ISDP PORTAL AND ITS RESOURCES ARE STRICTLY AND EXCLUSIVELY INTENDED FOR A COMMERCIAL AND BUSINESS USAGE, FOR AND BY BUSINESSES WITHIN THE EXERCISE OF THEIR COMMERCIAL ACTIVITIES. THE AGREEMENT IS CONCLUDED BETWEEN BUSINESSES ONLY WHO ARE ACTING SOLELY FOR BUSINESS PURPOSES.
IF YOU DO NOT AGREE WITH THESE TERMS DO NOT FINISH THE REGISTRATION PROCESS.
1. Definitions
“Agreement” means these Ingenico Software Developer Program Terms, including the License Terms, and the Platform Specific Addendum executed by You;
“API” stands for Application Programming Interfaces;
“Application” means any software programs developed by you in compliance with the Documentation, and for specific use with the INGENICO Platform, including Minor Updates and Major Updates thereof;
“Documentation” means any technical or other specifications or documentation that INGENICO may make available or provide to you relating to the INGENICO Platform and/or the INGENICO Development Framework; Documentation includes the guide(s) for the development of applications;
“FOSS” stands for “Free and Open Source Software” and means any software program that is subject to terms that require such software and derivative works thereof to be disclosed or distributed in source code form or to be redistributed free of charge, including without limitation software distributed under the GNU General Public License or GNU LGPL;
“Framework Updates” means any new maintenance release, minor release or major release of the INGENICO Development Framework made generally available by INGENICO to all ISDP developers;
“INGENICO” means INGENICO TERMINALS SAS a corporation having its principal place of business at 28-32 boulevard de Grenelle, 75015 Paris, France or any of its affiliate it may designate in writing;
“INGENICO Development Framework” means the API and development tool made available to you by INGENICO under a Platform Specific Addendum; Framework Updates made available to you shall be deemed part of the INGENICO Development Framework;
“INGENICO Platform” means the hardware and software architecture and infrastructure developed by INGENICO, referred to in the Platform Specific Addendum executed by You, in association with which your Application is designed to run;
“ISDP” stands for “INGENICO Software Developer Program” and means the partner program created and administered by INGENICO to offer, to developers, information and resources for the creation of applications running in association with INGENICO Platforms;
“Minor Update” shall mean bug fixes, patches and maintenance releases which do not change the features of the Application and do not add new features to the Application;
“Major Update” shall mean new releases or versions of the Application adding new features or modifying the features of the Application initially submitted to INGENICO hereunder;
“Program Requirements” mean the requirements to become and remain a developer under the ISDP, as set forth in this Agreement. Such requirements may be modified from time to time by INGENICO in accordance with this Agreement;
“Platform Specific Addendum” means the addendum to these general terms, executed by You at the time of your registration to the ISDP or further, through the ISDP Portal;
“Redistributables” means the portion of the INGENICO Development Framework which may be required by the Application to run on the INGENICO Platform;
“You” means the legal person or entity that by its representative or agent applies for the “ISDP” membership under this Agreement, and “your” is to be interpreted accordingly.
1. ISDP Enrollment.
1.1 ISDP Eligibility criteria
INGENICO will consider membership application from companies having a profile complying in INGENICO’s reasonable opinion with the objectives of the ISDP and matching the following cumulative criteria (the “Eligibility Criteria”):
a) the ISDP is open to companies willing to develop applications designed to run on an INGENICO Platform and to add functionalities and/or services to such INGENICO Platform, which are not already existing, as equivalent or similar functionalities and/or services, in such INGENICO Platform;
b) you, as a company, must be credit worthy and not conduct actions or activities which are or could be detrimental to INGENICO or the INGENICO group reputation and/or image;
You acknowledge that additional criteria may be specified in each Platform Specific Addendum; you must comply with such additional criteria in order to access the INGENICO Development Framework corresponding to the INGENICO Platform specified in such Platform Specific Addendum.
1.2 Enrollment in the ISDP requires the following steps:
– you must fill-in the ISPD enrollment form on the ISDP Portal (the “ISPD Enrollment Form”);
– INGENICO will check your compliance with the ISPD Eligibility Criteria as defined above;
– Upon positive outcome INGENICO will grant you access to the ISDP; such notification provides the effective date of the enrollment (the “Effective Date”).
1.3 The Information and data that you provide to INGENICO through the Enrollment Form need to be accurate and complete. INGENICO reserves the right to check accuracy of such information and data. Acceptance by INGENICO of your application to become a ISDP developer does not imply that INGENICO acknowledges that such information and data are accurate and complete.
2. ISDP Program Requirements
2.1 You must at all times comply with the following requirements, as they may be modified by INGENICO from time to time:
(i) You must ensure that the Application is developed in the manner prescribed by INGENICO in the Documentation;
(ii) You shall not develop or have developed any Application or other program knowing that such Application or other program would or would enable others to in whole or in part, directly or indirectly disable, bypass, break, hack or otherwise interfere with any security, signing, authentication or payment feature implemented in or by the INGENICO Platform, or other Ingenico software, services or technology;
(iii) You shall ensure that the Application complies at all times with all applicable laws and regulations; in particular, you shall ensure that the Application is not developed for the purpose of violating the law or the rights of others, or causing prejudice to any person or organization, and/or to facilitate or encourage any of the foregoing;
(iv) You shall provide commercially reasonable efforts to ensure that the Application is free of defects and does not contain any malicious or harmful code which could adversely impact or damage the INGENICO Platforms or other software, product, systems, data, networks or services.
2.2 INGENICO may change the Program Requirements or the terms of this Agreement at any time subject to prior written information delivered to you either in an email communication or through the website dedicated to the ISDP.
3. ISDP Program benefits
Acceptance of your membership according to section 1 above, grants you, for the Term and the Extended Term (if applicable), as defined below, the status of ISDP developer and the following benefits:
(i) you have access to the ISDP part of the INGENICO website, providing information and resources for ISDP members;
(ii) provided you execute the relevant Platform Specific Addendum and comply with the terms and conditions thereof, you have access to and right to use the INGENICO Development Framework referred to in such Platform Specific Addendum, for the purpose specified herein and in such addendum;
(iii) you have the possibility to ask INGENICO for technical support as per section 7 below.
4. Price, payment, taxes
4.1 The rights granted to you under this Agreement are subject to the duly payment of the applicable ISDP membership fee set forth in the ISDP Portal, if any. If no membership fee is specified in the ISDP Enrollment Form, the membership is free until further update of the membership fee by INGENICO. INGENICO reserves the right to modify at any moment the membership fee. Any change to the membership fee is applicable on the first day of the next Extended Term.
4.2 Invoices are payable, without withholding deduction or set off, thirty (30) days from the invoice date. Payment shall be made at INGENICO’s order, in Euros, by bank transfer. If any invoice has not been paid by the date indicated on said invoice, the amounts due shall be increased by late payment interests of an amount equal to the ECB rate plus seven (7) points, from the day following the payment date indicated on the invoice, until payment has actually been made. In addition, in case of non-payment by you, INGENICO shall automatically have the right to suspend its deliveries and the rendering of its services and/or to terminate the Agreement and/or the License Terms for breach according to section 5 below.
4.3 Taxes. Prices do not include, and you shall as applicable pay and/or reimburse INGENICO for, any and all VAT, sales taxes, withholding taxes or similar charges assessed against or payable by INGENICO or you, in connection with the sale of the services and/or licensing of the INGENICO Development Framework. The applicable taxes are those in force at the time of the invoicing.
5. Term and termination
5.1 Your membership under this Agreement is for the period starting from the Effective Date until December 31st of the then current calendar year (the “Term”). Unless terminated by written notice sent three (3) month before the end of the then current Term or Extended Term, this Agreement will be automatically renewed for successive one-year terms (each an “Extended Term”). If at the time of renewal, the ISDP terms and conditions have been updated by INGENICO, then this Agreement shall be deemed renewed on the basis of such updated ISDP terms and conditions.
5.2 Either party hereto shall have the right to terminate this Agreement immediately, without any proceedings or formalities other than a written notice to the other, in the event that the other party fails to perform any of its material obligations under this Agreement and such failure continues for a period of thirty (30) days following the receipt by the defaulting party of written notice of the other party’s intent to terminate.
5.3 In case of termination or expiration of this Agreement for whatever reason, the following shall apply:
· All your licenses to the INGENICO Development Framework shall immediately terminate;
· you shall (i) cease acting as ISDP developer, (ii) refrain from using any logo, sign or description to identify you as a ISDP developer, (iii) cease using INGENICO trademarks, trade names and logos, and (iv) return to INGENICO any INGENICO materials provided to you under this Agreement.
6. License to the INGENICO Development Framework
6.1 The INGENICO Development Framework content depends on the INGENICO Platform to which such framework is dedicated. A given INGENICO Development Framework is licensed to You as per the terms below, provided you have executed the corresponding Platform Specific Addendum listing such INGENICO Development Framework.
6.2 License terms for the INGENICO Development Framework:
(i) Subject to the license terms of this section 6 and, when applicable, the terms of the Platform Specific Addendum executed by you, (altogether the “License Terms”), INGENICO grants to you a non-exclusive and non-transferable right to use the INGENICO Development Framework, in packaged binary format, solely to develop the Applications and not for redistribution (except the Redistributables as expressly authorized hereunder) or sublicensing. You may make a reasonable number of copies of the INGENICO Development Framework solely to the extent necessary to develop the Application in accordance with the License Terms;
(ii) You are authorized (a) to distribute the Application in packaged binary format and (b) to distribute the Redistributables as embedded in the Application only to the extent such Redistributables are necessary for the Application to run on an INGENICO Platform;
(iii) The INGENICO Development Framework is licensed for the Term and any Extended Terms, but may be terminated by INGENICO at the end of the Term or each Extended Term, independently from this Agreement, with a thirty (30) day prior notice. In case of termination of your license for a given INGENICO Development Framework, you shall immediately (a) cease all use of such INGENICO Development Framework and (b) at INGENICO’s sole option, return to INGENICO such INGENICO Development Framework and any copies thereof and the Documentation, or destroy the same and certify such destruction in writing within fourteen (14) days. Expiration or termination of your license for a given INGENICO Development Framework shall not affect the licenses granted by you to your customers on the Application, whether such Application includes or not Redistributables;
(iv) The INGENICO Development Framework is licensed for the version specified in the Platform Specific Addendum executed by you;
(v) Except in respect of the Redistributables as embedded in the Application, you shall not sublicense, transfer, sell or otherwise communicate or make available the INGENICO Development Framework to any third party and shall protect and secure the INGENICO Development Framework using the same degree of care you use to protect your own proprietary rights, but in any case not less than reasonable care;
(vi) You shall not directly or indirectly correct, modify, distribute (except the Redistributables as expressly authorized hereunder), or adapt all or part of the INGENICO Development Framework’s component or features thereof;
(vii) You shall use the INGENICO Development Framework in accordance with the Documentation, instructions and training provided by INGENICO;
(viii) It shall be your sole and exclusive responsibility to install the INGENICO Development Framework, including but not limited to determining if the INGENICO Development Framework is appropriate for your information systems, needs and objectives, to implement adequate backup procedures to protect against loss or error resulting from the use of the INGENICO Development Framework and to verify any output resulting from the use of the INGENICO Development Framework if you intend to use or rely on such output;
(ix) You acknowledge that it may be necessary to prepare the environment within which the INGENICO Development Framework will be used, including but not limited to parameterization of the INGENICO Platforms or computer programs with which the INGENICO Development Framework will be used, integrated or interfaced. In particular, it shall be your responsibility to obtain from INGENICO, the INGENICO Platforms and other devices, apparatus and software programs necessary to test the Application, at the then prevailing conditions;
(x) The INGENICO Development Framework and Framework Updates are delivered via a download link;
(xi) All of the intellectual property rights in and to the INGENICO Development Framework, including in the Redistributables, as well as all adaptations, transpositions, or improvements whatsoever, other than the Applications, are and shall remain INGENICO’s property. There is no implied license granted hereunder. In that respect, the License Terms shall in no event be construed as being a sale of intellectual property rights, a sale of a software copy, or a transfer of ownership of the rights to the INGENICO Development Framework in whole or in part;
(xii) The INGENICO Development Framework may contain « open source » or « free software » components which are governed by their own license terms, such as but not limited to the GPL GNU license. In such case, the license terms and conditions for such components are those set forth in the license files accompanying such components, as delivered with the INGENICO Development Framework. You shall comply with such components’ license terms provided however that (a) in no event shall you embed or link in whole or in part the INGENICO Development Framework into or with such Open Source Elements in such a way that the license terms relating to such Open Source Elements oblige you or INGENICO to license such INGENICO Development Framework in whole or in part under such Open Source Elements’ license terms, and (b) these License Terms shall in no event be deemed a permission to do the foregoing. Moreover, the installation of third party components, including as applicable Open Source Elements, may be required to be able to use the INGENICO Development Framework (“Third Party Elements”); in such case, you shall procure such Third Party Elements and obtain the usage rights thereof under your sole and exclusive responsibility;
(xiii) Certain certifications are provided by INGENICO with its INGENICO Platforms. If any other certification or approval is required from any certification body or authority in order for the Application to be distributed such certification or approval shall have to be obtained by you at your costs and expenses;
(xiv) You hereby acknowledge that the INGENICO Development Framework, and its License Terms, are subject to change. In particular, Ingenico reserves the right to modify at any time in whole or in part content and conditions of availability, licensing and/or pricing of the INGENICO Development Framework and does not warrant that the license granted hereunder will be renewed or extended, or that the conditions of such license will remain unchanged in case of a renewal if any. The changes of the content and conditions of availability, licensing and/or pricing of the INGENICO Development Framework will in such case apply as follows:
· For new requests for INGENICO Development Framework, changes will apply immediately;
· For Framework Updates to the INGENICO Development Framework which is already licensed to you, changes will apply upon the date such Framework Updates are provided;
· For renewal of your INGENICO Development Framework license, changes will apply upon the date of such renewal.
Your consent to the new terms and conditions may condition the supply of such Framework Updates, the renewal of such license or the grant of a license for any new INGENICO Development Framework. In no event shall INGENICO be liable for the consequences that the above changes could have on your activity in particular the activity relying upon the developments made by or for you using the INGENICO Development Framework licensed hereunder.
7. Support
7.1 Upon your request and subject to availability of adequate resources, INGENICO may provide you with support services remotely by phone or email regarding the use of the INGENICO Development Framework, in accordance with the prevailing INGENICO terms and conditions for such support. INGENICO shall have no obligation to develop or provide error corrections or new releases or versions for the INGENICO Development Framework. The provision of technical support by INGENICO to you requires that your personnel calling the technical support be properly trained by INGENICO on INGENICO Platforms and the corresponding INGENICO Development Framework and corresponding training services have to be purchased from INGENICO.
7.2 Framework Updates. INGENICO may make Framework Updates available for download by you from time to time. In case a Framework Update is made available by INGENICO, you shall provide commercially reasonable efforts to replace the former version of the INGENICO Development Framework by such Framework Update, and to continue to develop and test the Application only by using the latest Framework Update.
8. Submission of your Application
8.1 You understand and agree that INGENICO may want to review your Application when developed. In such case, upon request from INGENICO you shall send to INGENICO the packaged format and documented source code of the final version of the Application and/or Major Update, via email or any other means as instructed by INGENICO (herein the “Submitted Materials”). You also agree in such case to provide INGENICO with other information and materials in connection with your submission, as reasonably requested by INGENICO.
INGENICO may, in its sole discretion determine that the Application and/or Major Update does not comply in whole or in part with the Documentation. In such case the submission of such Application and/or Major Update shall be deemed rejected and you will be informed of such rejection in writing, including via email sent by INGENICO. You hereby agree that INGENICO is under no obligation to return to you, or to certify the destruction of the Submitted Materials provided to INGENICO.
In order for INGENICO or any INGENICO subcontractor to analyze and test the Application, you hereby grant INGENICO a non-exclusive, free of charge, non-transferable license to (i) install, use and reproduce the Application in source form and packaged format on computers or INGENICO Platforms owned or controlled by INGENICO, and (ii) use and reproduce the documentation of the Application.
8.2 In no event shall the review performed by INGENICO be deemed a certification, warranty, endorsement, guarantee or representation in respect of the Application and INGENICO hereby disclaims any and all liabilities in this respect.
8.3 For the avoidance of doubt, You do not by this Agreement transfer or assign any of your intellectual property rights to INGENICO in and to the Application.
9. Representations and warranties – Indemnification
9.1 You represent and warrant to INGENICO that:
(i) you have the lawful right to disclose the Application under this Agreement and that the Application does not to the best of your knowledge infringe upon or violate any patent, copyright, trademark, trade secret or other proprietary right of any third party or of INGENICO,
(ii) you will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by you as a result of your development and distribution efforts, including those made upon INGENICO’s request or recommendation in order to render the Application compliant with the Documentation.
9.2 Indemnification
You shall indemnify and defend INGENICO, its directors, officers and employees (each an “INGENICO Indemnified Party”) against, and hold the INGENICO Indemnified Party harmless from, any and all third party claims, actions, proceedings, liabilities, losses, damages, costs or expenses (including reasonable attorneys’ fees) incurred by the INGENICO Indemnified Party resulting from, or arising out of or in connection with:
(i) any breach by you of any covenant, representation or warranty made or provided by you under this Agreement;
(ii) any claims that the use of the Application violates or infringes any third party intellectual property rights.
In no event may you enter into any settlement agreement with a third party that adversely affects INGENICO’s rights or binds INGENICO in any way, without the prior written consent of INGENICO.
10. WARRANTY DISCLAIMER
YOU ACCEPT THE INGENICO DEVELOPMENT FRAMEWORK “AS IS” AND “WITH ALL FAULTS”. THE INGENICO DEVELOPMENT FRAMEWORK IS PROVIDED WITHOUT ANY WARRANTY WHATSOEVER. INGENICO DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. INGENICO NEITHER WARRANTS THAT THE INGENICO DEVELOPMENT FRAMEWORK WILL MEET YOUR REQUIREMENTS NOR THAT THE OPERATION OF THE INGENICO DEVELOPMENT FRAMEWORK WILL BE UNINTERRUPTED OR ERROR FREE.
11. Limitation of Liability
INGENICO shall not be liable for any costs, expenses, damages, losses (including without limitation lost business opportunities or lost profits) or other liabilities you may incur as a result of the Application development, use of any services, or participation in the ISDP Program.
INGENICO will not be liable for compensation, indemnity, or damages of any sort as a result of the termination of this Agreement in accordance with the terms above. You understand and agree that INGENICO does not hereby expressly or by implication make, and has not before the entry into force of the Agreement made, any promises that you will be able to license, sell or distribute a given number of copies of your Applications, on any number of countries, or that you will achieve a certain level of revenue.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER INGENICO NOR ANY OF ITS AFFILIATES, PARENT OR SISTER COMPANIES, DIRECTORS, EMPLOYEES OR LICENSORS WILL BE LIABLE UNDER THIS AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO LOSS OF USE, DATA, LOSS OF PROFITS, INCOME, BUSINESS, ANTICIPATED SAVINGS, REPUTATION AS WELL AS FINANCING COSTS OR INCREASE IN OPERATING COSTS OR OTHER ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT OR ANY TERMINATION THEREOF.
IN THE EVENT THE ABOVE LIMITATION OF LIABILITY WOULD NOT BE ENFORCEABLE, THEN INGENICO’S LIABILITY UNDER THIS AGREEMENT MAY NOT EXCEED THE LESSER OF 10.000 EUROS OR THE AMOUNT OF ALL SUMS PAID BY YOU UNDER THIS AGREEMENT DURING THE TERM.
12. Non-exclusivity
There is no exclusivity granted or obtained hereunder, expressly or by implication. INGENICO retains to the fullest extent any and all rights to directly or indirectly market and/or license and/or sub-license any software or product on any platform or system or as a standalone product, to any third party at any time, worldwide.
Nothing contained in this Agreement shall prevent INGENICO from developing, acquiring or marketing, either through the use of its own personnel or through third parties, products similar to the Application provided INGENICO does not violate your rights. Nothing herein shall be construed to grant you any rights in any such similar products so developed or acquired, or any rights to the revenues of any portion thereof derived by INGENICO from the use, sale, lease, sublicense or other disposal of any such products.
13. Confidentiality and non-disclosure
Each party agrees to keep confidential the information it receives from the other party during the Term and/or any Extended Term, regardless of the nature thereof when such information is marked “Confidential” or when such information should reasonably be deemed to be confidential given the circumstances surrounding the disclosure (herein the “Confidential Information”). Each party must take the measures needed to ensure that this confidentiality obligation is complied with by its employees and by third parties who may use such information or become aware thereof. This obligation shall start from the Effective Date and shall continue for a period of five (5) years after the date of termination of this Agreement. These confidentiality obligations shall not apply to Confidential Information which the receiving party can prove that:
(i) it has been developed by it independently without breaching its contractual obligations or any other proprietary right of the other party;
(ii) it was in or has entered the public domain (other than by means of an unauthorized disclosure by it);
(iii) it was known to it before it received it, with no corresponding obligation of confidentiality;
(iv) an applicable law or authority requires it to disclose the Confidential Information, it being agreed that in such case it shall inform the other party in advance and in writing, and that such disclosure shall be strictly limited to what is necessary according to such law or authority.
14. Feedback
Upon INGENICO’s request or at your own initiative, you may provide feed-back and information in writing regarding the configuration, installation, parameterization, usage, behavior, connection, functioning, maintenance and/or support of the INGENICO Development Framework, including but not limited to (i) any bugs discovered by you in the INGENICO Development Framework, and/or (ii) any recommended INGENICO Development Framework improvements (herein the “Feedback”). Notwithstanding the foregoing, INGENICO is under no obligation to make any changes or modifications suggested by you. Any Feedback provided by you to INGENICO shall be provided by you to INGENICO at no charge, and with the right for INGENICO to use, copy, disclose, license, distribute and exploit such Feedback in any way and for any purpose without any obligation or restriction based on intellectual property rights or otherwise. You shall not give Feedback to INGENICO that comprises or includes confidential or proprietary information or materials of a third party, or other information or materials which are subject to a third party license. You hereby agree not to share or communicate Feedback on the INGENICO Development Framework to any third party other than with or to INGENICO.
15. Assignment
You may not assign this Agreement in whole or in part without INGENICO’s prior written consent. You hereby acknowledge and agree that INGENICO may assign this Agreement in whole or part without your consent, provided that INGENICO notifies you of such assignment.
16. Entire Agreement
This Agreement shall constitute the agreement between the parties and shall replace and supersede all documents previously exchanged concerning the same subject matter.
17. Electronic contracting
You acknowledge and agree that this Agreement and all approvals, transactions, purchases, licenses and other agreements or contracts arising out of the use of the ISDP Portal, are concluded by electronic and are fully enforceable. INGENICO’s electronic records of such approvals, transactions, purchases, licenses, agreements and contracts shall constitute admissible evidence thereof. You hereby waive any right to invoke the electronic form of the approvals, transactions, purchases, licenses and other agreements to question, reconsider or reject their validity or enforceability. Any reference herein to “execution” of documents shall be deemed a reference to an electronic contracting, signature and approval process performed through the ISDP Portal. In this respect, it is hereby expressly agreed that this clause is in derogation to article 1° to 5° of section 1127-1 and section 1127-2 of the French civil Code.
18. Notices
All notices which any of the Parties is required or desires to serve upon the other pursuant to the terms of this Agreement shall, unless otherwise provided for in this Agreement, be in writing and shall be delivered to the following addresses:
To you: at the address set forth in the ISDP Enrollment Form mentioned in section 1 above.
To INGENICO: at the email address set forth in the ISPD Portal.
19. Audits.
INGENICO shall have the right, at its expenses, at any time during the Term or Extended Term hereof, during your working hours, to perform or have performed by an independent third party, an audit at your premises where the INGENICO Development Framework is used, to verify compliance by you with the terms and conditions of this Agreement, including the License Terms.
20. No agency
Under these License Terms, you have no authority to act as an agent, representative or otherwise on INGENICO’s behalf and do not have any right on any basis, express or implied, to bind INGENICO in any way.
21. Marketing credentials
You hereby authorize INGENICO to use your name as reference in general marketing materials.
22. Applicable law and dispute resolution
This Agreement and all claims or issues regarding its execution or interpretation shall be governed by the laws of France, to the exclusion of its conflict of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, shall be excluded. Any dispute arising out of or concerning this Agreement which dispute cannot be settled amicably within fifteen (15) days shall be resolved definitely and exclusively by the Courts of Paris, France.
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“AXIUM” PLATFORM SPECIFIC ADDENDUM
This “Axium” Platform Specific Addendum is made part of, and incorporates by the reference the terms of the INGENICO SOFTWARE DEVELOPER PROGRAM TERMS, and is between the legal person having accepted online the INGENICO SOFTWARE DEVELOPER PROGRAM TERMS (herein “PARTNER”) and (b) Ingenico Terminals SAS, a corporation registered with the Paris trade and company register under the number b 538 600 412, having its principal place of business at 28-32 boulevard de Grenelle, 75015 Paris, France, duly represented (“INGENICO”).
Whereas INGENICO manufactures a payment terminal based on the Android operating system, able to run applications developed for the Android platform;
Whereas PARTNER is in the business of development and commercialization of ECR products and/or applications and is interested in porting certain of its ECR applications onto the INGENICO Android based payment terminal (the “Project”);
NOW, THEREFORE, PARTNER and INGENICO agree as follows:
1. Definitions.
Capitalized terms used in this Platform Specific Addendum have the meanings given to them in the INGENICO SOFTWARE DEVELOPER PROGRAM TERMS, or below:
« INGENICO Product » means the INGENICO payment terminal based on the Android operating system, as described in Appendix 1, including updates, new releases and enhancements to such product.
« ISVP » stands for « Independent Software Vendor Program » and means the partner program created and administered by INGENICO to offer to independent software vendors, information and resources for the creation and deployment of Application running in association with the INGENICO Platform;
« PARTNER Product » means the computer software programs and related documentation described in Appendix 2, including updates, new releases and enhancements to these programs. When ported onto the INGENICO Product, the ported PARTNER Product shall become part of this definition.
« Product » means either the INGENICO Product or the PARTNER Product or both as the context requires.
« Solution » means a combined technical solution based on an INGENICO Product running in association with a PARTNER Product.
« Territory » means worldwide.
For the purpose of this “Axium” Platform Specific Addendum:
* The “API” is the one referred to in Appendix 1;
* The “INGENICO Platform” is the Android/Telium Tetra payment terminal platform, developed by INGENICO; and
* The “INGENICO Development Framework” is the API and related development tools developed by INGENICO to develop Applications able to run on the INGENICO Platform
2. Scope
2.1 INGENICO and PARTNER will contract separately and independently of each other with Customers. Each party will be solely responsible for and liable to Customers for its own Products and services. However, the parties may on a case by case basis decide to enter into written agreements to jointly provide services for specific customer engagements, with one party acting as the prime contractor and the other party acting as the subcontractor or otherwise.
2.2 The parties expressly agree that they have no obligation hereunder to generate a minimum turnover for the other party during the Term hereof or thereafter, and each party expressly waives any claim or right to compensation in the case where for whatever reason the other party has not made a minimum volume of sales of its Products or has not received whole or part of the turnover it had expected to receive irrespective of whether such expectation was known by the other party or whether forecast were provided or not.
3. Responsibilities of INGENICO
3.1 INGENICO shall deliver to PARTNER the API, to be used by PARTNER solely for the porting of the PARTNER Product onto the INGENICO Product. INGENICO hereby grants PARTNER, for the Term, a limited, personal, fully paid-up, non-transferable and non-exclusive right to use such API in object code form solely for such porting activity, but not for deployment or distribution of the Application so ported.
If PARTNER wants to deploy its Application so ported on the INGENICO Platform, PARNTER must execute with INGENICO or the relevant INGENICO Affiliate, the INGENICO ISV PROGRAM TERMS AND CONDITIONS, giving access to the ISVP.
3.2 INGENICO may provide PARTNER with, and PARTNER may order, maintenance and support services from INGENICO to assist PARTNER in the porting of the PARTNER Product onto the INGENICO Product.
4. Responsibilities of the parties
4.1 Marketing events. Each party agrees, upon the other party’s request, to consider any invitation to participate in the organization and implementation of jointly sponsored marketing events, road shows, exhibitions, user conferences, on conditions to be agreed upon by the parties as part of the business plan referred to below. Cost of such marketing events will be shared on a mutually agreed upon basis, except that each party will be responsible for its own travel and lodging expenses.
4.2 Promotional materials. Each party will provide the other, free of charge, with one complete set of its promotional, sales and marketing materials as necessary for Product demo and promotion during marketing events or for external communication, in a format suitable for electronic distribution.
4.3 Use of name and logo. Each party shall have the right to use the other party’s logo and/or name as necessary to conduct promotional and communication activities authorized hereunder, in accordance with such other party’s then current marketing communications standards protocols and procedures, and provided it obtains prior written permission from such party for each such use. Each party shall submit to the other party for written prepublication approval, any materials which may use or display any name, trademark or logo of the other party.
4.4 Road-map. During the Term of this Agreement each party (the “Disclosing party”) shall endeavor to provide the other with a twelve (12) month road-map for the products to be made generally available as successor to or enhancement of its current Product (the « Road-Map »), to be updated every six (6) months when required. Reasonably in advance of the announcement of general availability to end-users of a new Product, the Disclosing party will provide the other with more detailed information on specifications of such new Product, and preliminary pricing information if available; the Disclosing party shall also provide the other party, at the same time, free of charge, with binary copies of early-release and pre-release of its new Product, if generally available to all Disclosing party’s privileged partners, for testing and hardware and software compatibility qualification purpose. The parties shall meet every six (6) months to discuss the implementation of the Road-Map and exchange their respective approach thereto; the Disclosing party may require the other to execute a pre-release software license agreement or a non-disclosure agreement prior to supplying the other any such early release or pre-release software.
Appendix1: INGENICO Product and API
The INGENICO Product is the high-end range of Ingenico point of interaction based on dual system approach: One based on proprietary operating system (Telium Tetra), the other being based on Android operating system. The INGENICO Product is also called Axium.
