V2 – POSTED August 22nd, 2014
THANK YOU FOR YOUR INTEREST IN HEARTLAND PAYMENT SYSTEMS, INC. (“HEARTLAND”). PLEASE SCROLL DOWN AND READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. BY INDICATING YOUR ACCEPTANCE IN THE MANNER SPECIFIED BELOW, YOU ARE AGREEING, ON YOUR OWN BEHALF AND/OR ON BEHALF OF YOUR CLIENT AND/OR ANY OTHER ORGANIZATION THAT YOU REPRESENT, TO THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT, OR DO NOT HAVE THE AUTHORITY TO, AGREE TO SUCH TERMS AND CONDITIONS, YOU CANNOT USE THE TECHNICAL INFORMATION TO BE PROVIDED BY HEARTLAND OR DEVELOP ANY APPLICATION USING HEARTLAND’S TECHNICAL INFORMATION (“DEVELOPER APPLICATION”) PURSUANT TO THIS AGREEMENT. IF YOU DO USE SUCH TECHNICAL INFORMATION, YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO HAVE FORMED A LEGALLY BINDING CONTRACT WITH HEARTLAND ON THE TERMS AND CONDITIONS SET FORTH BELOW.
In addition to this Agreement, Heartland may require you to enter into additional agreements governing other Heartland products or services and/or governing other permitted uses of Heartland’s Technical Information or other permitted aspects of your Developer Application’s interfacing with Heartland’s systems (each, an “Additional Agreement”). In the event of a conflict between a term or condition set forth in this Agreement and a term or condition set forth in an Additional Agreement, the term or condition set forth in this Agreement will control with respect to the use of the Technical Information permitted in this Agreement.
Please maintain a copy of this Agreement for your records. Please also refer to this URL (or a successor URL specified by Heartland) for updated versions of this Agreement (indicated by the version number and posting date displayed above), which shall be legally binding upon posting, whether or not Heartland provides you with any other notice of such changes. Your continued use of Heartland’s Technical Information or continued interfacing of Your Developer Application with Heartland’s systems will constitute your consent to be bound by, and your agreement to, the terms of any updated version of this Agreement. If you do not agree to the terms of any updated version of this Agreement, you must discontinue your use of Heartland’s Technical Information or must not permit Your Developer Application to continue to interface with Heartland’s systems.
This Developer’s Agreement (“Agreement”) is between Heartland Payment Systems, Inc., a Delaware corporation, with its principal place of business at 90 Nassau Street, Princeton, New Jersey 08542 (“Heartland”), and the software developer accepting the terms of this Agreement in the manner specified below, including any organization that such developer represents for the purposes of this Agreement and/or any third party on whose behalf such developer or such organization has been retained in connection with the use of Heartland’s Technical Information (collectively, “Developer” or “you”). This Agreement shall be effective as of the date that you indicate your acceptance in the manner specified below (“Effective Date”).
Accordingly, Heartland and Developer agree as follows:
1.1 Developer Application. Developer wishes to integrate a payment application or payment gateway (“Developer Application”) to be compatible with Heartland’s payment processing platform.
1.2 Technical Information. Heartland will provide Developer with Technical Information for the sole and limited purpose of permitting Developer to develop the Developer Application to connect and process with Heartland’s payments processing platform. The term “Technical Information” means, as applicable, the Software Development Kit, application programming interface information, data, software code, specifications, plug-ins, plans, computer software, screen layouts, flow charts, drawings and any other materials, documents and information provided by Heartland to Developer as well as any updates and/or upgrades thereto.
2. License Grant
2.1 Limited License. Subject to Developer’s compliance with the terms of this Agreement, Heartland grants to Developer a, non-exclusive, non-transferable, limited and revocable license to use the Technical Information solely to internally develop the Developer Application to communicate with, and allow for, payment processing solely with Heartland’s card processing platforms.
2.2 Termination of Merchants. Developer acknowledges and agrees that Heartland may, at any time and without notice to Developer, terminate any merchants serviced by Developer if Heartland in its sole discretion determines that any such merchant(s) is or are not meeting industry standards for security. Developer expressly waives Heartland from any liability incurred by Developer or a merchant resulting from such termination.
2.3 License Restrictions. Except as permitted in this Agreement, Developer’s use of the Technical Information shall be subject to the following restrictions:
2.3.1 Developer agrees to use the Technical Information only in accordance with the license set forth in Section 2 and any applicable law, regulation or guidelines prevalent in the payments processing industry;
2.3.2 Developer shall not disclose, in any manner, the Technical Information or any portion thereof to any third party, except as required by law, rule or regulation;
2.3.3 Developer shall not cause the Technical Information, or any part thereof, in any way to be disassembled, decompiled or reverse engineered, nor shall any attempt to do so be undertaken or permitted;
2.3.4 Developer shall not assign, sell, rent, sublicense, or lease any portion of the Technical Information to any third party;
2.3.5 Developer shall not (i) modify, (ii) create derivative works of or (iii) use for general application development purposes the Technical Information, or any part thereof;
2.3.6 Developer agrees not to attempt to connect to the Heartland network other than through the Technical Information provided hereunder.
2.3.7 Developer may make a reasonable number of copies of the Technical Information only to the extent required to use the Technical Information for the limited purposes set forth in this Agreement; provided that Developer must reproduce and include the copyright, trademark symbols or other restrictive and proprietary notices and markings from the original on all copies. All copies will be subject to the terms of this Agreement; and
2.3.8 Except as otherwise expressly permitted by Heartland in the Technical Information or as otherwise approved by Heartland in writing, Developer shall not use any Open Source Materials in connection with the Developer Application, in any manner that would cause the Technical Information to be subject to any licensing terms or obligations applicable to Open Source Materials. For the purposes of the preceding sentence, the term “Open Source Materials” means any software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge, including, without limitation, software distributed under the GNU General Public License or GNU Lesser/Library GPL.
2.4 API Keys. In order to access the Technical Information, Heartland may require Developer to register for a unique security key or other security mechanism. Heartland may then issue Developer one or more unique security keys, tokens, passwords and/or other credentials (collectively, “Keys”) for accessing the Technical Information. Developer may only access the Technical Information with the Keys issued by Heartland. Developer may not sell, transfer, sublicense or otherwise disclose Keys to any third party or use such Keys with any third-party product or service. Developer shall be responsible for all activities that occur using its Keys, regardless of whether such activities are undertaken by Developer or a third party and will notify Heartland of any unauthorized use of the Keys.
2.5 Modifications. Developer acknowledges and agrees that Heartland retains the right to modify and release subsequent versions of the Technical Information. Developer may be required to obtain and use the most recent version of the Technical Information in order for the Developer Application to continue to be compatible with Heartland’s payment processing platform. The features, functionality, form and components of the Technical Information may change without prior notice to Developer and Developer acknowledges and agrees that future versions of the Technical Information may be incompatible with any Developer Application developed on previous versions of the Technical Information. The Technical Information is currently provided on a royalty-free basis, but Heartland reserves the right to charge for the Technical Information (or additional features or functionality) in the future.
2.6 Support Acknowledgement. Developer acknowledges and agrees that Heartland has no obligation to provide Developer and/or its merchants support, software upgrades or updates, enhancements or modifications to the Technical Information (“Support”). If Heartland elects at any time to provide Support, Heartland may terminate the Support at any time without notice to Developer for any or no reason.
3. Developer Commitments
3.1 Compliance with Law. Developer shall, at all times, comply with all applicable federal and state laws and regulations or other requirements of any governmental or industry authority with respect to its performance under this Agreement, including those related to data security as well as privacy. Developer shall, at all times, comply with applicable security standards as designated by Heartland and the Payment Card Industry Security Standards Council, including, but not limited to, and as applicable, Payment Card Industry Data Security Standard (PCI DSS), the Payment Applications Data Security Standard (PA-DSS) and the PIN Transaction Point of Interaction (PTS POI) standard, as modified from time to time. Developer acknowledges that Heartland reserves the right to suspend or terminate completely certification of the Developer Application and cease processing any transactions originating from a Developer Application.
3.2 Background Check. Developer acknowledges and agrees that Heartland or its designee may, and Developer grants to Heartland or such designee the right to, conduct a background check to evaluate Developer and/or the Developer Application. In connection with any such background check, Developer (i) grants to Heartland or its designee the right to indicate to third parties (e.g., past employers of Developer, etc.) that Developer has granted such permission and (ii) in any instance where the further permission of Developer is required by a third party in order for Heartland or its designee to obtain any data or information in connection with any such background check, Developer agrees to grant such permission.
3.3 Heartland Application Development. Developer acknowledges and agrees that Heartland, whether on its own behalf or in connection with a third party, may be independently creating applications, content and other products or services that may be similar to or competitive with the Developer Application. Nothing in this Agreement will be construed as restricting or preventing Heartland from creating and fully exploiting such applications, content and other items, without any obligation to Developer.
4. Intellectual Property Rights
Nothing herein shall be construed to restrict or deprive either party of its rights or interest in intellectual property, technology or products that existed prior to and independent of this Agreement. All applicable common law and statutory rights, title and interest in Heartland’s systems, networks, platforms, software, hardware, Technical Information or other material owned by Heartland, including, but not limited to, rights in confidential and trade secret material, object code, source code, trademarks, service marks, patents and copyrights, will be Heartland’s sole property. Subject to the terms of Section 3.3, above, all applicable common law and statutory rights, title and interest in the Developer Application will be Developer’s sole property
5.1 Restrictions on Disclosure. Developer acknowledges and agrees that the Technical Information is, and that it may have access to other information which is, Confidential Information. (The term “Confidential Information” means the Technical Information and testing and certification results provided to Developer by Heartland or accessed by Developer through use of the Technical Information.) Developer will: (i) hold all Confidential Information of Heartland in confidence and (ii) use such Confidential Information only for the purposes of performing its obligations and exercising its rights under this Agreement; Developer will be responsible for any breach of this Section 5 by any of its employees, agents or representatives. The obligations of confidentiality and limitation on use set forth herein will survive the termination of this Agreement for any reason for a period of three (3) years thereafter, except for trade secrets which shall survive thereafter.
5.2 Exceptions. Developer may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that Developer uses reasonable efforts to notify Heartland in advance of such disclosure so as to permit Heartland to request confidential treatment or a protective order prior to such disclosure and redacts the Confidential Information to only disclose Confidential Information to the extent required by law.
5.3 Title. Title to all tangible forms of Confidential Information and all copies thereof, will remain with Heartland. No right or license is granted by Heartland to Developer with respect to Confidential Information, except as expressly set forth in this Agreement. Developer will not copy or otherwise reproduce, in whole or in part, any Confidential Information without the prior written authorization of Heartland, except as may be reasonably necessary to fulfill its obligations under this Agreement. Developer will promptly return or destroy all tangible forms of Confidential Information, and copies thereof, upon Heartland’s request or termination of this Agreement, and, upon Heartland’s request or upon termination of this Agreement, certify that it has taken such action.
5.4 Remedies for Breach. Developer acknowledges that the Confidential Information of Heartland is unique property of extreme value to Heartland and that Heartland will suffer substantial damages not readily ascertainable or fully compensable by monetary damages in the event of any violation or infringement by or on behalf of Developer of any Heartland intellectual property rights and/or the breach by Developer or any of its representatives of any of the obligations set forth in this Agreement. Accordingly, Developer agrees and consents that Heartland will be entitled (without limitation of any other rights or remedies otherwise available to the Heartland) to seek an injunction without posting any bond from any court of competent jurisdiction preventing or prohibiting the continuance or recurrence of such violation or infringement and/or any breach of the confidentiality provisions contained in this Section 5.
6. General Warranties
6.1 General. Developer represents and warrants that: (i) it is a legal entity duly organized, validly existing and in good standing; (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) it is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except when the failure to be so licensed, authorized or qualified would not have a material adverse effect on its ability to fulfill its obligations hereunder; (iv) it will avoid deceptive, misleading or unethical practices that could adversely affect the performance of Heartland’s obligations under this Agreement or damage the reputation of Heartland; (v) it is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability or the ability of Heartland to perform fully its obligations hereunder; and (vi) its performance of its obligations under this Agreement will not violate any other agreement between Developer and any third party.
6.2 DISCLAIMER. DEVELOPER ACKNOWLEDGES AND AGREES THAT THE TECHNICAL INFORMATION IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. HEARTLAND EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HEARTLAND DOES NOT WARRANT THAT THE TECHNICAL INFORMATION WILL MEET DEVELOPER’S REQUIREMENTS OR THAT THE TECHNICAL INFORMATION IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM. DEVELOPER FURTHER ACKNOWLEDGES AND AGREES THAT HEARTLAND IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ALL LIABILITY ARISING OUT OF, EXPLOITATION OF SECURITY VULNERABILITIES IN NON-HEARTLAND TECHNOLOGIES (SUCH AS APIS AND PLUGINS), EVEN WHEN THOSE SECURITY VULNERABILITIES CAUSE HARM THROUGH, OR BY WAY OF, THE TECHNICAL INFORMATION.
Developer, at its own expense, will indemnify and hold harmless Heartland, its subsidiaries, affiliates and assigns, and its and their directors, officers, employees and agents from and against any claim, loss, demand, cause of action, debt or liability, including attorneys’ fees, arising out of or related to (a) any breach or alleged breach of Developer’s obligations, covenants, representations and warranties under this Agreement; (b) Developer’s use of the Technical Information and any connection between the Developer Interface, as such term is defined in Schedule A to this Agreement, and Heartland’s systems permitted by Heartland; and (c) Developer’s products and services, including the Developer Application and other materials developed using the Technical Information, including any claims that the Developer Application or the use thereof infringes any intellectual property rights of such third party.
8. Limitation of Liability
EXCEPT WITH REGARD TO (A) DEVELOPER’S FAILURE TO COMPLY WITH THE CARD BRAND RULES, INCLUDING THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARDS (“PCI DSS”); (B) DEVELOPER’S INDEMNIFICATION OBLIGATIONS, (C) CLAIMS ARISING OUT OF BREACHES OF CONFIDENTIALITY AND (D) CLAIMS ARISING OUT OF THE ACTUAL OR ALLEGED INFRINGEMENT OR VIOLATION OF ANY HEARTLAND INTELLECTUAL PROPERTY RIGHTS (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) NEITHER PARTY’S LIABILITY FOR DIRECT DAMAGES TO THE OTHER PARTY UNDER THIS AGREEMENT WILL EXCEED $500,000.
9. Term and Termination
9.1 Term. The term of this Agreement shall begin on the Effective Date and will continue through and until terminated by either party in accordance with the terms of this Agreement.
9.2 Termination for Convenience. Notwithstanding any other provision hereof, Heartland or Developer may terminate this Agreement at any time and for any reason, in whole or in part, by providing the other party thirty (30) days prior written notice of termination.
9.3 Termination for Breach. If Developer shall be in breach or default of any of the provisions of this Agreement and the breach or default shall continue for a period of ten (10) days after Heartland gives written notice to Developer, then, in addition to all other rights and remedies that Heartland may have under this Agreement, at law or equity, or otherwise, Heartland shall have the right to cancel this Agreement upon written notice without any charge to, or obligation or liability of, Heartland.
9.4 Return of Information. Upon termination, Developer shall immediately (i) deliver to Heartland via certified mail or nationally recognized courier service all copies of the materials and any documents or other materials related to this Agreement in the possession of Developer and Developer’s personnel and (ii) Developer shall remove or erase from all electronic devices, Technical Information and Confidential Information retained in any form or medium. At Heartland’s written request, Developer shall furnish Heartland with a document signed by Developer’s authorized representative verifying that the destruction of Technical Information and other Confidential Information has occurred pursuant to the provisions of this Agreement.
10. General Terms
10.1 Amendments. The parties shall not amend this Agreement, except by a written amendment executed by duly authorized representatives of each party.
10.2 Publicity. Developer may use Heartland’s name, trademark or issue any press release or public announcement regarding the existence of this Agreement or subject matter thereof with Heartland’s prior written approval.
10.3 Remedies. Notwithstanding any other provision herein, all rights and remedies of a party hereunder are in addition to any other rights and remedies to which such party may be entitled, are cumulative and are not in the alternative.
10.4 Notices. All notices and other communications required or permitted to be given by this Agreement shall be in writing. Notices will be deemed given by Heartland when sent to Developer at the email address Developer provides to Heartland, whether in connection with this Agreement or otherwise. Developer consents to receive notices by email sent to such address and agrees that any such notices that Heartland sends to Developer electronically will satisfy any legal communication requirements. Notices will be deemed given by Developer when received by Heartland at the address set forth above, with a copy to Heartland Payment Systems, Inc., Attention: General Counsel, at the same address.
10.5 Survival. The obligations of the parties under this Agreement that by their nature, would continue beyond the termination of this Agreement shall survive termination of this Agreement.
10.6 Governing Law, Venue and Jurisdiction. This Agreement shall be construed and governed by the laws of the State of New Jersey without regard to legal principles related to conflict of laws. Any suit, action or proceeding (collectively “action”) arising out of or relating to this Agreement shall be brought only in the Superior Court of the State of New Jersey, or the United States District Court for the District of New Jersey. Developer hereby agrees and consents to the personal and exclusive jurisdiction of said courts over it as to all such actions, and Developer further waives any claim that such action is brought in an improper or inconvenient forum. In any such action, the parties waive trial by jury. In any judicial proceeding arising out of or relating to this Agreement, the prevailing party shall recover, in addition to all damages awarded, all court costs, fees and expenses of experts and reasonable attorneys’ fees.
10.7 EXPORT RESTRICTIONS. THE TECHNICAL INFORMATION IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. DEVELOPER AGREES TO COMPLY WITH ALL APPLICABLE EXPORT LAWS AND REGULATIONS, WHICH MAY INCLUDE RESTRICTIONS ON USE, USERS AND DESTINATIONS.
10.8 Relationship of the Parties. Nothing contained herein shall be deemed to create a partnership, joint venture or any agency relationship between Heartland and Developer.
10.9 No Waiver. Any waiver or alleged waiver of any breach or term of this Agreement shall not constitute a waiver of any other breach or term hereof.
10.10 No Assignment. Developer may not assign any of the rights, interests, or obligations hereunder, by operation of law or otherwise, without the prior written consent of Heartland.
10.11 Successors and Assigns. This Agreement binds and benefits the parties and their respective permitted or authorized successors and assigns.
10.12 No Third-Party Beneficiaries. Except as may otherwise be provided herein (e.g., with respect to affiliates), this Agreement is intended for the sole and exclusive benefit of the parties hereto, is not intended to benefit any third party, and only the parties may enforce this Agreement.
10.13 Headings. The headings in this Agreement are solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
10.14 Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement, but such terms or provisions shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth herein.
10.15 Contract Interpretation. Ambiguities, inconsistencies or conflicts in this Agreement will not be strictly construed against either party, but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time this Agreement is entered into and common practice in the industry.
10.16 Entire Agreement. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, supersedes all previous written or oral agreements between the parties, including, but not limited to, all representations, warranties, statements, correspondence, purchase orders, and understandings previously made by Developer or Heartland with respect to the subject matter hereof, and may not be modified except by a written agreement signed by both parties.
V2 – POSTED AUGUST 22ND, 2014
Schedule A – Interface Connection Terms and Conditions
YOU HAVE PREVIOUSLY AGREED TO A DEVELOPER’S AGREEMENT WITH HEARTLAND PAYMENT SYSTEMS, INC. (“HEARTLAND”). PLEASE SCROLL DOWN AND READ THE FOLLOWING SCHEDULE A – INTERFACE CONNECTION TERMS AND CONDITIONS CAREFULLY. BY INDICATING YOUR ACCEPTANCE, YOU ARE AGREEING, ON YOUR OWN BEHALF AND/OR ON BEHALF OF YOUR CLIENT AND/OR ANY OTHER ORGANIZATION THAT YOU REPRESENT, TO THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT, OR DO NOT HAVE THE AUTHORITY TO, AGREE TO SUCH TERMS AND CONDITIONS, YOU CANNOT USE THE TECHNICAL INFORMATION TO BE PROVIDED BY HEARTLAND OR DEVELOP ANY APPLICATION USING HEARTLAND’S TECHNICAL INFORMATION (“DEVELOPER APPLICATION”) PURSUANT TO THIS SCHEDULE A. IF YOU DO USE SUCH TECHNICAL INFORMATION, YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS AND CONDITIONS OF THIS SCHEDULE A AND TO HAVE FORMED A LEGALLY BINDING CONTRACT WITH HEARTLAND ON THE TERMS AND CONDITIONS SET FORTH BELOW. THIS SCHEDULE A SHALL BE EFFECTIVE AS OF THE DATE THAT YOU INDICATE YOUR ACCEPTANCE.
This Schedule A, upon its execution, is made a part of the Developer’s Agreement. Developer agrees that each Developer Interface, as defined below, is subject to the terms and conditions of the Developer’s Agreement and the terms in this Schedule A (together, the “Agreement”). This Schedule A shall not be deemed an amendment to the Developer’s Agreement, but is a supplement thereto.
The connection of your Developer Interface with Heartland’s systems will further constitute Developer’s consent to be bound by, and agreement to, the terms of any updated version of this Schedule A. If Developer does not agree to the terms of any updated version of this Schedule A, Developer must not permit your Developer Interface to continue to connect with Heartland’s systems. Developer and Heartland agree as follows:
1.1 Development. Pursuant to the terms of the Developer’s Agreement, Heartland granted to Developer a limited license to use Heartland’s Technical Information (as such term is defined in the Developer’s Agreement) for the sole and exclusive purpose of developing a connection to Heartland’s payment processing platform (“Developer Interface”).
1.2 Evaluation. Developer will provide Heartland with written notification at such time that, in Developer’s determination, the Developer Interface is ready to connect with Heartland’s systems. Upon receipt of such notification, Heartland may, in its sole discretion, provide Developer with testing data, information and materials necessary to permit the Developer Interface to connect with Heartland’s systems for the purposes of processing “dummy” (i.e., not actual) transactions. Heartland may, in its sole discretion, but Heartland shall not be obligated to, review the output of such “dummy” transactions in order to evaluate whether to permit the Developer Interface to connect with Heartland’s systems in a production environment (i.e., one that processes actual transactions).
1.3 Criteria. The following reflects a non-exclusive list of criteria that Heartland may, in its sole discretion, consider when undertaking any review provided for above, and for which Developer may be denied access to Heartland’s systems:
1.3.1 Developer Interfaces that themselves crash, or that cause any Heartland, merchant or third-party hardware, software or systems to crash.
1.3.2 Developer Interfaces that exhibit bugs located in the credit/debit card processing code which would cause a merchant to “downgrade.”
1.3.3 Developer Interfaces that do not perform as advertised by the Developer.
1.3.4 Developer Interfaces that include undocumented or hidden features inconsistent with the description of the Developer Interface.
1.3.5 Developer Interfaces that store or write prohibited sensitive cardholder information in violation of PA DSS and PCI DSS standards (i.e., magnetic stripe, CVV2 or PIN data).
1.3.6 Developer Interfaces that store or write data to Heartland’s systems or applications purchased by and for use by Heartland (i.e., embedded code which tracks transactions passing through a payment gateway).
1.3.7 Developer Interfaces that provide incorrect diagnostic or other inaccurate device data.
1.3.8 Developer Interfaces from any Developer who Heartland determines to be “spamming” Heartland with many versions of similar Developer Interfaces.
1.3.9 Developer Interfaces that suggest or infer that Heartland is a source or supplier of the Developer Interface, or that Heartland endorses any particular representation regarding quality or functionality.
1.3.10 To the extent that a Developer Interface uses protected third-party material (e.g., trademarks, copyrights, trade secrets, inventions, otherwise proprietary content), Developer must provide Heartland, upon request, with reasonable evidence that all necessary third-party rights have been obtained. If a Developer does not have the necessary third-party rights to permit a Developer Interface to interface with Heartland’s systems, Developer should not permit Heartland to evaluate such Developer Interface under this Agreement.
1.3.11 Developer Interfaces must comply with all legal requirements in any location where they are made available to users. Heartland prohibits Developer Interfaces that promote or may lead to the production of an illegal item or illegal activity. Developer shall be responsible for researching to ensure that each Developer Interface is in compliance with all local, state, national and international laws.
1.4 Updating Developer Interface. Heartland will, from time to time, release updates to the Technical Information. In some instances, such updates will include improvements or enhancements as required by law or the Card Brands (i.e., VISA or MasterCard). Heartland reserves the right to suspend or terminate the Developer Interface if the Developer Interface is not upgraded to be in compliance with those releases that are mandated by law or the Card Brands.
1.5 Continuing Evaluation. In the event that Heartland permits the Developer Interface to connect with Heartland’s systems, Heartland retains the right, in its sole discretion, but Heartland shall not be obligated, to review the operation of the Developer Interface to determine, in its sole discretion, whether (i) to continue to permit such connection; (ii) the Developer Interface functions as outlined in Developer’s product description, (iii) the Developer Interface continues to meet the criteria set forth above; (iv) the Developer Interface puts any Heartland, merchant, consumer or any other third party data at risk; and (v) the Developer Interface complies with the terms of this Agreement.
1.6 Developer Evaluation. Notwithstanding any evaluation conducted by Heartland, any such evaluation is not intended to take the place of Developer’s pre-release testing. Developer should complete any and all pre-release testing before providing Heartland with written notification that Developer’s Developer Interface is ready to connect with Heartland’s systems.
1.7 Communication. In the event that Heartland has a question about the Developer Interface during Heartland’s evaluative process, or if Heartland determines, in its sole discretion, that one of the criteria is not met, Heartland may notify Developer using the email address or telephone number associated with Developer’s account and may provide guidance on next steps. Heartland will also notify Developer once a Developer Interface is permitted to connect, or if Heartland determines that a Developer Interface is not permitted to connect, with Heartland’s systems. If a Developer Interface is not permitted to connect with Heartland’s systems, Heartland may provide Developer with details on the reason(s) therefore and guidance on necessary revisions.
1.8 Heartland Discretion. Heartland reserves the right to determine the appropriateness of permitting a Developer Interface to interface with Heartland’s systems in Heartland’s sole and absolute discretion. Heartland may also determine, in its sole discretion, to permit any third-party application to interface with Heartland’s systems. Heartland may terminate any transaction, or take other actions as needed to restrict access to or availability of any content, product or service that does not comply with this Agreement or that otherwise might adversely affect Heartland, merchants, consumers, end users or other third parties. Permitting a Developer Interface to interface with Heartland’s systems, or withdrawing any such permission previously granted, does not relieve Developer of responsibility to ensure the Developer Interface complies with this Agreement or to perform other obligations under this Agreement. For the avoidance of doubt, and notwithstanding anything in this Schedule A, the Developer’s Agreement or any other additional agreement to the contrary, Heartland shall have no liability, whether to Developer, any merchant or any other third party, arising out of, relating to, or as a result of Heartland’s acts or omissions pursuant to this Section 1.8.
1.9 Developer Feedback. If Developer provides suggestions, ideas or other feedback to Heartland, Heartland will be free to exercise all rights in such feedback without restriction and without owing any compensation to Developer.
1.10 Developer End User License Agreement. Any license or other agreement between Developer and any merchant or other third party relating to a Developer Interface and/or a Developer Interface’s connection with Heartland’s systems (“Developer EULA”) shall not be inconsistent with the terms of this Agreement. Developer agrees that Heartland’s agreements with its merchant customers and other third parties (“Heartland Agreements”) may involve such third parties’ use of the Developer Interface. The Heartland Agreements may specify, among other terms and conditions, that Heartland is not the licensor of any Developer Interface and that Heartland is not a party to the Developer EULA. If there are any conflicts between any Heartland Agreement and the Developer EULA, then to the extent of such conflict, the Heartland Agreement will control. Heartland does not have any responsibility or liability related to compliance or non-compliance by Developer or any merchant, consumer, end user or other third party under any Heartland Agreement or Developer EULA.
1.11 Prohibited Actions. Neither Developer nor the Developer Interface shall interfere with damage, access or use in any unauthorized manner, the hardware, software, networks, technologies or other properties or services of Heartland.
1.12 Support. Developer will provide reasonable (and, as between Developer and Heartland, Developer will be solely responsible for providing) technical and product support for Developer Interfaces as requested by any merchant, consumer, end user or other third party. Developer will also be solely responsible for receiving and responding to complaints from any of the foregoing relating to the Developer Interface.
2. LIMITED LICENSE GRANT.
Subject to Developer’s compliance with the terms of this Agreement, in the event and to the extent that Heartland permits the Developer Interface to connect with Heartland’s systems, Heartland grants to Developer a non-exclusive, non-transferable, limited and revocable license to permit the Developer Interface to communicate with, and allow for, payment processing solely with Heartland’s card processing platforms. Heartland makes no representations or warranties, implied or otherwise, about its platforms.
2.1 Termination of Merchants. Developer acknowledges and agrees that Heartland may, at any time and without notice to Developer, terminate any merchants serviced by Developer, if Heartland, in its sole discretion, determines that any such merchant(s) is or are not meeting industry standards for security. For avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, Heartland shall have no liability, whether to Developer, any merchant or any other third party, arising out of, relating to, or as a result of Heartland’s acts or omissions pursuant to this Section 2.1.
2.2 Modifications. Heartland retains the right to modify and release subsequent versions of the Technical Information. Developer may be required to obtain and use the most recent version of the Technical Information in order for the Developer Interface to continue to be compatible with Heartland’s payment processing platform. The features, functionality, form and components of the Technical Information may change without prior notice to Developer and Developer acknowledges and agrees that future versions of the Technical Information may be incompatible with any Developer Interface developed on previous versions of the Technical Information
3. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
3.1 Representations and Warranties. Developer represents and warrants that:
3.1.1 Developer will obtain the third-party rights necessary to develop and use the Developer Interface and permit the Developer Interface to connect with Heartland’s systems pursuant to this Agreement and Developer will be solely responsible for, and will paylicensors or co-owners any royalties or other monies due to them related to such Developer Interface;
3.1.2 None of the following will violate any law, rule or regulation, contain any defamatory materials, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, privacy or moral rights): (i) any materials embodied in the Developer Interface; or (ii) the use of the Developer Interface as contemplated by this Agreement;
3.1.3 The Developer Interface will not contain any viruses, spyware, “Trojan horses” or other malware or harmful code and will not cause any injury to any person or damage to any property; and
3.1.4 Developer will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users (e.g., as part of the Developer EULA) based on Developer’s use of third party “open source” software or other third party intellectual property in the Developer Interface. Developer also will promptly make available to Heartland, end users and any other third party that is entitled to it, the source code corresponding to any Developer Interface or portion thereof if and in the manner required by applicable third party terms and conditions (e.g. open source software licenses).
3.2 DISCLAIMER. DEVELOPER ACKNOWLEDGES AND AGREES THAT ANY INTERFACING WITH HEARTLAND’S SYSTEMS OR PLATFORMS IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. HEARTLAND EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HEARTLAND DOES NOT WARRANT THAT THE CONNECTION WITH HEARTLAND’S SYSTEMS OR PLATFORMS WILL MEET DEVELOPER’S REQUIREMENTS OR THAT HEARTLAND’S SYSTEMS OR PLATFORMS ARE, OR WILL CONTINUE TO BE, COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE.
4. DEVELOPER COMMITMENTS
4.1 Compliance with Law. Developer shall, at all times, comply with all applicable federal and state laws and regulations or other requirements of any governmental or industry authority with respect to its performance under this Agreement, including those related to data security as well as privacy. Developer shall, at all times, comply with applicable security standards as designated by Heartland and the Payment Card Industry Council, including, but not limited to, and as applicable, Payment Card Industry Data Security Standard (PCI DSS), the Payment Applications Data Security Standard (PA-DSS) and the PIN Transaction Point of Interaction (PTS POI) standard, as modified from time to time.
4.2 Heartland Application Development. Developer acknowledges and agrees that Heartland, whether on its own behalf or in connection with a third party, may be independently creating applications, content and other products or services that may be similar to, or competitive with, the Developer Interface. Nothing in this Agreement will be construed as restricting or preventing Heartland from creating and fully exploiting such applications, content and other items without any obligation to Developer.
4.3 TO THE EXTENT THAT THE DEVELOPER APPLICATION IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS, DEVELOPER AGREES TO COMPLY THEREWITH, WHICH COMPLIANCE MAY INCLUDE RESTRICTIONS ON USE, USERS AND DESTINATIONS.