CANTALOUPE SYSTEMS, INC. SEED® MASTER SERVICE AGREEMENT TERMS AND CONDITIONS
a. “Access Transfer Agreement” means an agreement between Customer, Cantaloupe, and a third party allowing for the transfer of a license to use the Firmware.
b. “Activation Date” means, with respect to any Seed Hardware device, the date that such device is activated, as set forth in the Subscription Agreement.
c. “Agreement” means the SEED® MASTER SERVICE AGREEMENT TERMS AND CONDITIONS together with the Subscription Agreement.
d. “Application(s)” means any and all editions of the existing modules of Seed, SeedSync, and Seed Management executable software provided by Cantaloupe, and hosted on Cantaloupe’s Servers, enabling Cantaloupe’s customers to use the Service.
e. “Customer” means the Customer specified on the Subscription Agreement.
f. “Data” means data captured by the Seed Hardware or entered by Customer using the Service into the Applications.
g. “Firmware” means the firmware embedded in the Seed Hardware.
h. “Intellectual Property Rights” means all forms of intellectual property rights and protections that may be obtained for, or may pertain to, the Seed Hardware, the Applications, and/or other works of authorship, and may include, without limitation, all right, title, and interest in (i) all mask works, copyrights, other literary property, and authors’ rights, whether or not protected by copyright, under common law, state law, federal law, or the laws of foreign countries, (ii) all U.S. and foreign letters patent and all filed, pending, or potential applications for such letters patent, (iii) all trade secret rights and equivalent rights arising under common law, state law, federal law, or the laws of foreign countries, and (iv) all proprietary indicia, trademarks, trade names, symbols, logos, and/or brand names under common law, state law, federal law, or the laws of foreign countries.
i. “Peripheral Products” means any other physical goods or equipment shipped with the Seed Hardware which are related to the use of the Seed Hardware and the provision of Services.
j. “Sales Quote” means the purchase order provided to Customer by Cantaloupe pursuant to which Customer may order Seed Hardware, Peripheral Products and Services.
k. “Seed Hardware” means telemetry equipment manufactured by Cantaloupe used for remote monitoring of vending machines and other Cantaloupe-manufactured automated merchandising equipment, which shall include parts, cables, upgrades, additions, and accessories incorporated therein.
l. “Servers” means the servers hosting the Applications used to deliver the Service.
m. “Service” means the Cantaloupe Seed software as a service web-based platform that Cantaloupe offers its customers, by which such customers can enter Data into the applications, view Data, and otherwise manage their Seed Hardware using the Applications hosted on Cantaloupe’s Servers and delivered to customers through its websites.
n. “Subscription Agreement” means the Subscription Agreement to which these Terms and Conditions are incorporated into and made part of.
o. “Term Commitment” means, with respect to each Seed Hardware device, the Contract Term for which Customer is obligated to pay Monthly Seed Service Fees, as specified on a Subscription Agreement.
2. Relationship of Cantaloupe and Customer. Nothing contained in this Agreement shall be construed to (i) constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking, or (ii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. In addition, with respect to the relationship between Customer and the wireless carrier providing wireless services with respect to the Seed Hardware, Customer acknowledges and agrees to the terms and conditions attached hereto as Appendix C.
3. Sale of Hardware. Customer agrees to execute a Sales Quote that will include the quantity and price of Seed Hardware units and any Peripheral Products to be purchased on the terms set forth on a Subscription Agreement executed by Customer and Cantaloupe. Unless specified otherwise on the Subscription Agreement, Cantaloupe may modify the pricing for the Seed Hardware or the Peripheral Products at any time, and, in such event, the parties shall prepare and sign a supplemental Subscription Agreement which will govern subsequent orders by Customer.
4. Shipment Terms, Title, and Delivery. Seed Hardware and any Peripheral Products will be shipped FOB Cantaloupe’s point of shipment. At time of shipment, title of the Seed Hardware and Peripheral Products (exclusive of the Firmware) and risk of loss with respect thereto will pass to Customer. All freight, insurance, and other shipping expenses from the point of shipment will be borne by Customer.
5. Activation. All Seed Hardware devices purchased will be activated on the Activation Date and the Customer will be assessed an activation fee as specified on a Subscription Agreement.
6. Firmware License. In connection with sale of the Seed Hardware, Cantaloupe grants Customer a non-exclusive, non-transferable (except as otherwise set forth herein) right to use the Firmware. This is a license, not a transfer of title, to the Firmware, for use only under the terms of this Agreement. Cantaloupe retains ownership of all copies of the Firmware, and Cantaloupe reserves all rights not expressly granted to Customer with respect thereto. The rights granted herein are limited to Cantaloupe’s or its licensors’ Intellectual Property Rights in the Firmware and do not include any other third party Intellectual Property Rights.
7. Service. Subject to the terms and conditions set forth in this Agreement, Cantaloupe grants Customer during the term of this Agreement a non-exclusive license to use and execute the Applications, through Cantaloupe’s Servers. Cantaloupe may modify the Service, the Firmware or the Applications from time to time provided, however, that no such modification shall result in a material diminution of functionality of the Service, Firmware or the Applications.
8. Customer Responsibilities. Customer is solely responsible for all activity occurring under Customer’s user accounts and with Customer’s use of the Service. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and use the Service only in accordance with the terms of this Agreement.
9. Limitations on Licenses. Customer may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Applications, the Firmware, or any part thereof. Any attempt to do so is a violation of the rights of Cantaloupe and shall constitute a breach of this Agreement.
10. Restrictions. Customer may not access the Service if Customer is or becomes a direct competitor of Cantaloupe, except with Cantaloupe’s prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes. Customer shall not: (i) make the Services available to anyone other than authorized employees, independent contractors or other individual agents of Customer, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services, (v) sell, resell, rent or lease the Services, (vi) use the Services to knowingly store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (vii) knowingly use the Service to store or transmit malicious code, (viii) knowingly interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (ix) attempt to gain unauthorized access to the Service, their related systems or networks, or the accounts or data of other Cantaloupe customers. Customer shall notify Cantaloupe immediately of any unauthorized use of any password or account, or any other known or suspected breach of security. Customer agrees to comply with all applicable United States export control laws and regulations concerning export and re-export of the Seed Hardware, Peripheral Products, technology and documentation, including without limitation, the laws and regulations administered by the United States Department of Commerce and the United States Department of State.
11. Cashless Service Terms. In connection with the Service, Cantaloupe also offers “Cashless Services,” by which Cantaloupe acts as a payment gateway to enable merchant credit card transaction processing with one or more credit card processors. The terms and conditions for Cantaloupe Cashless Services are set forth in Appendix B. If Customer has enrolled in the Cantaloupe Cashless Services program, the terms of Appendix B shall apply.
12. Client Subscription for the Service; Early Termination Fees.
a. Customer is required to maintain its subscription for the Service with respect to each Seed Hardware device for the Contract Term specified on the Subscription Agreement and Customer is required to pay the Monthly Seed Service Fee with respect to each activated Seed Hardware device. At the end of the Term Commitment, Customer’s subscription with respect to any Seed Hardware device shall automatically and perpetually renew on a month-to-month basis at the same Monthly Seed Service Fee unless an alternative arrangement is agreed to in writing by Customer and Cantaloupe.
b. Customer is required to and hereby agrees to pay an Early Termination Fee (as indicated in the Subscription Agreement) for each Seed Hardware device that is deactivated/terminated from Service prior to satisfying the Term Commitment for such Seed Hardware device. The Early Termination Fee shall be assessed immediately upon deactivation/termination of such device and shall be due within thirty (30) days of the date of deactivation/termination. Failure to pay the Early Termination Fee will result in the continuing accrual of Monthly Seed Service Fees with respect to such device, which amount shall constitute an absolute payment obligation of Customer.
c. If a Seed Hardware device is returned to Cantaloupe on account of a hardware warranty issue and warranty conditions are satisfied (as set forth in Appendix A), RMA processing of a device shall not result in the imposition of an Early Termination Fee. However, in the event that (i) the warranty conditions set forth in Appendix A are not satisfied or (ii) Customer does not activate the replacement device for any reason, Customer shall be obligated to pay Cantaloupe the Early Termination Fee with respect to such returned device notwithstanding Cantaloupe’s acceptance of the RMA.
13. Term of Agreement; Termination.
a. This Agreement shall begin upon Cantaloupe’s acceptance of the Subscription Agreement and shall remain in full force and effect for an indefinite period of time until this Agreement is terminated in accordance with the terms hereof.
b. Cantaloupe shall be entitled to terminate this Agreement upon the occurrence of any of the following events:
(i) If Cantaloupe suspends Customer’s access to the Service pursuant to Section 15 and Customer has not remedied the payment delinquency within ten (10) days of such suspension;
(ii) If Customer is in breach of any of its other obligations hereunder (including without limitation Client’s obligations under the Section 10 – Restrictions) and does not cure such breach within thirty (30) days of receiving a written notice specifying such breach;
(iii) If receivership, liquidation or bankruptcy proceedings are initiated against Customer, and are not dismissed or terminated within thirty (30) days of their initiation; or
(iv) If any applicable law prevents the continuation of the performance of any party’s obligations under this Agreement.
c. Customer may terminate this Agreement upon thirty (30) days’ prior written notice to Cantaloupe and payment of all amounts due and payable to Cantaloupe, including any Early Termination Fees assessed pursuant to Section 12(b).
d. Upon termination of this Agreement, all rights granted to Customer will terminate automatically and revert to Cantaloupe. Termination will not entitle Customer to receive a refund of any payment or fee previously paid to Cantaloupe regardless of the basis of such termination.
e. If termination of this Agreement occurs prior to fulfillment of the Term Commitment with respect to any Seed Hardware, Customer shall pay the Early Termination Fee pursuant to Section 12.
f. The provisions of Sections 2, 9, 10, 11, 12(b), 14, 17, 18, 19, 20, 21, 22, 23(c), 23(d), 24, 25, 27 and 28 shall survive the termination of this Agreement. Without limiting the foregoing, all obligations of Customer to pay Cantaloupe all amounts accrued prior to the date of such termination, together with all Early Termination Fees, shall survive termination of this Agreement.
14. Fees and Payments.
a. Cantaloupe will invoice customer for (1) Seed Hardware, Peripheral Products, and associated shipping fees; (2) Seed Service Fees; (3) activation fees; (4) the Seed Cashless service and transaction fees; (5) Seed Sync; and (6) for other goods and services as may be provided at the request of Customer upon shipment or performance, as the case may be. Seed Hardware activated during the month will be assessed a prorated charge for that month.
b. Invoices not paid by the due (generally net thirty days) date will be subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection including without limitation legal fees.
c. Customer will promptly notify Cantaloupe of changes of billing and contact information.
d. If Customer believes that any billed amount or invoice is incorrect, Customer must contact Cantaloupe in writing (a “Payment Dispute Notice”) within thirty (30) days of the payment or invoice date, setting forth the details of the amount in question and Customer’s basis for asserting its inaccuracy in order for Customer to be considered eligible to receive an adjustment or credit.
e. Customer is solely responsible for payment of any taxes applicable by any law, resulting from Customer’s acceptance of this Agreement and\or Customer’s use of the Service, including without limitation, all sales and use taxes; provided, however, that Customer shall not be responsible for taxes based exclusively on Cantaloupe’s income. Client agrees to hold harmless Cantaloupe from all claims and liability arising from Customer’s failure to report or pay such taxes.
f. All amounts due to Cantaloupe hereunder shall be paid in cash or immediately available funds unless another payment method is otherwise specified on the Subscription Agreement.
15. Suspension of the Service on Account of Payment Delinquency.
a. In the event Customer’s account becomes delinquent by thirty (30) or more days, Cantaloupe will contact Customer via email and/or phone to notify Customer of the delinquency. If Customer and Cantaloupe do not agree on how to remedy the payment delinquency, or if Customer does not comply with the agreed upon payment remediation plan, Cantaloupe will place a banner notice on Customer’s website portal to the Application stating that Customer will be denied access to the Service if the delinquency is not promptly remedied and/or it may place a hold on future shipments of Seed Hardware. Denial of access to the Service shall occur no earlier than five (5) days from placement of the notice on the website portal. Following the specified grace period, if the payment delinquency is not remedied, Customer’s access to the Service will be denied.
b. Customer agrees and acknowledges that Cantaloupe will have no obligation to retain Customer’s Data after denial of access to the Service on account of a Customer payment default and that such Data may be irretrievably deleted by Cantaloupe.
c. In the event Customer wishes to renew Service after suspension, all amounts outstanding must be paid in full, including any assessed Early Termination Fees and re-activation fees.
d. Notwithstanding anything to the contrary in this Section 15, Cantaloupe shall not exercise any suspension rights if the applicable delinquent charges are under reasonable and good faith dispute and Customer has timely delivered to Cantaloupe a Payment Dispute Notice.
16. Additional Grounds for Suspension of Service. In addition to suspension for non-payment as set forth in Section 15, Cantaloupe may suspend Customer’s account and deny Customer access to the Service:
a. Upon 30 days written notice to Customer of a material breach (other than non-payment) if such breach remains uncured at the expiration of such thirty day period,
b. Immediately, if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors,
c. Immediately, if Cantaloupe has reason to believe that Customer has breached one or more of subsections (vii)-(ix) of Section 10, or
d. Immediately, if Cantaloupe has reason to belief that fraudulent transactions are being processed through the Service.
17. Dispute Resolution.
a. CANTALOUPE AND CUSTOMER AGREE THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES ARISING OUT OF, RELATING TO, OR RESULTING FROM THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION AS SET FORTH BELOW.
b. Cantaloupe and Customer (each a “Party” and collectively the “Parties”) shall use reasonable efforts to settle by amicable negotiations any dispute which may occur between them in connection with this Agreement and/or Customer’s use of the Service (a “Dispute”). In the event that a Party determines that a Dispute cannot be resolved by such amicable negotiations, such Party shall commence a formal dispute resolution process by sending the other party written notice of the Dispute (a “Dispute Notice”) which contains the factual basis of such Dispute. If the Dispute has not been settled within ten (10) days of receipt of the Dispute Notice, the Parties shall submit the Dispute to binding arbitration by three arbitrators in accordance with the commercial arbitration rules of American Arbitration Association then in effect, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be conducted in San Francisco, CA, by arbitrators familiar with the information technology industry. The arbitrators will have no authority to award punitive or consequential damages nor any other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms, limitations and conditions of this Agreement. The Parties shall have no rights to conduct discovery in any such arbitration proceeding unless so ordered by the arbitrators and the proceedings shall not be limited by federal or local evidentiary rules. The prevailing Party in any such arbitration shall be entitled to be paid its costs and expenses, in addition to any damages awarded, by the non-prevailing Party. Notwithstanding the above, nothing contained herein shall preclude Cantaloupe from exercising its rights to suspend Client’s access to the Service in accordance with the terms set forth in Section 15 or Section 16 above, as the case may be, and such suspension shall not be stayed during the dispute resolution process set forth herein unless (i) such stay is agreed to in writing by Cantaloupe or (ii) the subject matter of the Dispute is limited solely to a matter of a payment which is being contested in good faith by Client.
c. Notwithstanding the foregoing provisions of this Section 17, Cantaloupe shall be entitled to file suit in a court of competent jurisdiction to (1) enforce its Intellectual Property Rights; (2) seek relief for a breach of, or a declaration of rights pursuant to, Section 22; or (3) make a claim for breach of contract limited exclusively to the collection of undisputed amounts payable to Cantaloupe hereunder.
18. Notices. All notices and communications required or permitted under this Agreement shall be in writing and shall be sent to the postal or email addresses indicated in the Subscription Agreement, and in the case of postal notice, by a nationally known service that confirms delivery in writing. Notices shall be deemed to be given on the date of service shown on the delivery confirmation.
19. Transfer of Seed Hardware and Peripheral Products. This Agreement may be assigned by Customer without the prior written approval of Cantaloupe upon an acquisition of Customer (by means of merger, etc.) or a sale of substantially all of the assets of the Customer provided that the proposed assignee assumes all of the obligations of Customer under this Agreement and prompt written notice of such assignment is provided to Cantaloupe. In addition, Customer may sell, assign or transfer the Seed Hardware and the Peripheral Products in its sole discretion subject to the following terms and conditions:
a. Cantaloupe shall be under no obligation to approve the transfer of the Firmware license or to provide access to the Service to the proposed transferee, and it shall be in Cantaloupe’s sole and absolute discretion whether to approve such transfer and at what price and on what terms to provide Services to such transferee.
b. If approved by Cantaloupe, the transfer of the Firmware license shall be evidenced by an “Access Transfer Agreement” to be executed by Customer, as the assignor, the proposed transferee, as the assignee of the firmware license, and Cantaloupe, as licensor.
c. All amounts due and payable to Cantaloupe prior to the date of the proposed transfer must be paid in full, including any Early Termination Fees that may be applicable to the Seed Hardware devices proposed to be transferred.
20. Confidential Information. The terms of this Agreement are confidential and shall not be disclosed by Customer to any third party without the prior written consent of Cantaloupe. Each party acknowledges that it may receive as a result of the Agreement non-public information of the other party which relates to the past, present or future business activities of such party, its employees, suppliers or third party contractors including but not limited to any information relating to pricing, processes, financial data, statistics, future and current products and current services or related information (“Confidential Information”). Neither party shall disclose to any person, firm or enterprise, use for their own benefit or copy, adapt or otherwise reproduce any Confidential Information of the other party without such party’s prior written consent. The obligations of this Section 20 shall not apply to any information which: (a) becomes public other than by a breach by a party of its obligations pursuant to this Section 20; (b) is provided by a third party who lawfully acquired it and is under no obligation of confidentiality; (c) is independently developed by such party without use of any of the Confidential Information of the other party; or (d) is required to be disclosed by law, by any governmental authority or by the rules of any applicable stock exchange.
21. License to Incorporate Feedback/Enhancements. Cantaloupe shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Service or development of additional functionality of the Applications.
22. Intellectual Property Rights and Restrictions. Cantaloupe and its licensors are and shall remain at all times the sole and exclusive owners of all and any right, title, and interest in and to the Service, Applications, and Firmware, including but not limited to any and all Intellectual Property Rights in the same, whether registered or unregistered, already developed or that will be developed in the future pertaining to the Service, Applications, and Firmware and all modifications and enhancements thereof, subject only to the rights and privileges expressly granted to Customer herein by Cantaloupe. This Agreement does not provide Customer with any rights other than the right of a limited use as expressly set forth herein. “Seed®,” “Open VDI,” “Seedcashless,” “SeedSync™” and “Seed Management™” are current trademarks of Cantaloupe and no right, license, or interest to such trademarks is granted hereunder, and Customer agrees that no such right, license, or interest shall be asserted by Customer with respect to such trademarks, nor shall Customer oppose registration of, or seek to cancel, any such current or future trademarks.
23. Warranty, Disclaimer of Warranties and Limitations of Liability.
a. All Seed Hardware and other Cantaloupe manufactured Peripheral Products purchased hereunder shall be covered by Cantaloupe’s standard hardware warranty attached hereto as Appendix A.
b. EXCEPT AS WARRANTED IN APPENDIX A, THE SERVICE, THE SEED HARDWARE, THE SERVERS, THE APPLICATIONS, THE FIRMWARE, DATA CAPTURED BY THE SEED HARDWARE, AND THE CANTALOUPE WEBSITE ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CANTALOUPE AND ITS LICENSORS AND SUPPLIERS HEREBY:
i. DISCLAIM ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; AND
ii. DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE SERVICE, THE SEED HARDWARE, THE SERVERS, THE APPLICATIONS, THE FIRMWARE, DATA CAPTURED BY THE SEED HARDWARE, THE SERVICE TO BE PROVIDED BY TELECOMMUNICATION CARRIERS, AND THE CANTALOUPE WEBSITE, INCLUDING WITHOUT LIMITATION THEIR RESPECTIVE CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS.
c. EXCEPT FOR CANTALOUPE’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 27 BELOW, CANTALOUPE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CANTALOUPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING WITHOUT LIMITATION ANY LOSSES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM THE LOSS OF, OR NEED TO REPLACE, ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT’S TRANSMISSIONS OR DATA; OR (iv) ANY OTHER MATTER RELATING TO THE SERVICE, THE SEED HARDWARE OR THE APPLICATIONS.
d. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT THE LIABILITY AND OBLIGATIONS OF CANTALOUPE AND THE UNDERLYING CARRIER TO CUSTOMER UNDER THIS AGREEMENT MAY BE STRICTLY CONTROLLED AND LIMITED BY THE LAWS, RULES AND REGULATIONS OF THE FEDERAL COMMUNICATIONS COMMISSION AND OTHER GOVERNMENTAL AUTHORITIES WHICH FROM TIME TO TIME HAVE JURISDICTION. IN ANY EVENT, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, THE TOTAL LIABILITY OF CANTALOUPE, THE UNDERLYING CARRIER, AND/OR ANY SUPPLIER OF SERVICES TO CUSTOMER ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED, SHALL BE LIMITED TO PAYMENT BY CANTALOUPE OF DAMAGES IN AN AMOUNT EQUAL TO THE AVERAGE MONTHLY SEED SERVICE FEES CHARGED TO CUSTOMER FOR SERVICES PROVIDED UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM FOR DAMAGES.
24. Service Availability.
a. Cantaloupe will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned maintenance downtime (of which Cantaloupe shall give at least twenty four (24) hours advance notice via the Service and which Cantaloupe shall schedule to the extent practicable during (i) the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday or (ii) during the weekday hours between the hours of 9:00 p.m. Pacific time to 3:00 a.m. Pacific time), or (b) any unavailability caused by circumstances beyond Cantaloupe’s reasonable control, including without limitation, one or more Force Majeure Events (as defined below).
b. Cantaloupe will use reasonable efforts to select telecommunication providers that ensure the availability of cellular coverage 24 hours a day, 7 days a week. However, no guarantee is made by Cantaloupe that these providers will provide uninterrupted services and in no event shall Cantaloupe be responsible or liable to Customer for any Service down time attributable to the failure or unavailability of the cellular networks.
a. Cantaloupe shall be entitled to maintain the Data generated by the Seed Hardware or entered by Customer using the Service to Cantaloupe’s Servers in any commercially reasonable way chosen by Cantaloupe, in its sole and exclusive discretion. Notwithstanding the above, Customer may not rely on Cantaloupe’s perpetual maintenance of the Data. In addition, Customer should take all appropriate measures required to enable the continuation of Customer’s business operations following any suspension of Customer’s account or use of the Service, termination of this Agreement, or any force majeure event under Section 26.
b. The Data shall remain Customer’s exclusive property and all rights therein shall reside solely with Customer; provided, however, that Cantaloupe shall be entitled to use the Data on an aggregated basis for analytical and marketing purposes provided that all information that refers to Customer’s identity, or Customer’s clients, is removed from any such Data.
c. CANTALOUPE SHALL HAVE NO OBLIGATION, AND ASSUMES NO OBLIGATION, UNDER THIS AGREEMENT FOR CONVERTING CUSTOMER’S DATA FOR USE WITH ANY THIRD PARTY APPLICATION USED IN CONNECTION WITH THE SERVICE.
26. Force Majeure. Cantaloupe shall not be liable hereunder due to any cause beyond its control, including but not limited to acts of God, acts of government, flood, tsunami, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Cantaloupe employees), or Internet service provider failures or delays, unavailability of global positioning system services or cellular phone networks, epidemics, or inability to obtain materials, components, energy, manufacturing facilities, or transportation (collectively, “Force Majeure Events”). In the event of any such delay because of a Force Majeure Event, the date of delivery or performance hereunder shall be extended by a reasonable period of time.
a. Cantaloupe shall defend Customer against any claim, demand, suit, or proceeding, including at trial and through appeal (collectively, “Claims”) made or brought against Client by a third party alleging that the use of the Seed Hardware, Applications or Service as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party, and shall indemnify Customer and hold Customer harmless for any damages finally awarded against, and for reasonable attorney’s fees as they are incurred by Customer in connection with any such Claim; provided, that Customer (a) promptly gives Cantaloupe written notice of the Claim; (b) gives Cantaloupe sole control of the defense and settlement of the Claim (provided that Cantaloupe may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (c) provide to Cantaloupe reasonable assistance, at Cantaloupe’s sole expense. Notwithstanding anything herein to the contrary, Cantaloupe shall have no obligation to defend and shall not be liable for any Claim to the extent caused primarily by (i) a modification to the Seed Hardware or the Peripheral Products made by Customer, unless either Cantaloupe or an authorized agent of Cantaloupe made, recommended or approved the modification; or (ii) use of the Applications or Services in combination with other software or products not provided or authorized by Cantaloupe.
b. Customer shall defend Cantaloupe against any Claim made or brought against Cantaloupe by a third party alleging that Client’s use of the Services in a manner not authorized by this Agreement infringes or misappropriates the Intellectual Property Rights of such third party, and shall indemnify Cantaloupe and hold Cantaloupe harmless for any damages finally awarded against, and for reasonable attorney’s fees as they are incurred by, Cantaloupe in connection with any such Claim; provided, that Cantaloupe (a) promptly give Customer written notice of the Claim; (b) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally releases Cantaloupe of all liability); and (c) provide to Customer reasonable assistance, at Customer’s sole expense.
c. This Section states each party’s sole liability to the other party for any type of Claim described in this Section.
a. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of California, without reference to conflict of laws principles. Without limiting the generality of the above, the United Nations Convention on Contracts for The International Sale of Goods shall not apply to this Agreement.
b. THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF CANTALOUPE’S OBLIGATIONS AND RESPONSIBILITIES TO CLIENT AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF CANTALOUPE RELATING TO THE SUBJECT MATTER HEREOF UNLESS SUCH PROPOSAL OR REPRESENTATION IS INCORPORATED INTO A WRITTEN DOCUMENT WHICH (1) IS SIGNED BY CANTALOUPE AND (2) SPECIFICALLY REFERENCES THESE TERMS AND CONDITIONS AND THE INTENTION TO MODIFY OR SUPERSEDE THE TERMS HEREOF.
c. This Agreement may be modified or amended, and any provision of this Agreement may be waived, at the sole and absolute discretion of Cantaloupe and such modification, amendment, or waiver shall be effective as of the date of adoption by Cantaloupe of such provision. The failure of Cantaloupe at any time to require performance of any obligation of the Customer shall not affect Cantaloupe’s right to enforce any provision of this Agreement at a later time, and the waiver by Cantaloupe of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
d. In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect.
e. Except as provided in Section 19, this Agreement may not be assigned by Customer without the prior written approval of CantaloupeAny purported assignment in violation of this Subsection shall be void.
f. The headings in this Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement.
SEED HARDWARE WARRANTY
This Appendix A contains the terms and conditions that apply to Customer’s purchases of Seed® Hardware devices, Seed Cashless® hardware, (collectively “Hardware”) and any Peripheral Products from Cantaloupe.
1. Claims for Omitted or Damaged Products. Any claims by Customer for omission of products shipped, shortages of product, or damaged goods in a shipment are waived by Customer unless Customer provides notice to Cantaloupe within ten (10) days after Customer’s receipt of shipment.
2. Limited Warranty. Cantaloupe warrants that the Hardware will be free from defects for a period of one (1) year from the initial Activation Date and that the Cantaloupe manufactured Peripheral Products will be free from defects for a period of ninety (90) days of shipment. Cantaloupe will have no warranty obligation for products purchased from Cantaloupe that were (i) subjected to abuse, misuse, negligence or accident, (ii) returned outside the warranty period, (iii) that are sent back missing components or contain components not originally contained in the product, (iv) that have permanent case markings other than normal wear and tear, (v) that have internal and external serial numbers that do not match, or (vi) that are returned in improper packaging. Peripheral Products not manufactured by Cantaloupe shall be covered by the original manufacturer warranties covering such Peripheral Products.
3. RMA Required. Customer must obtain from Cantaloupe a Return Material Authorization Number (“RMA”) prior to returning any Hardware or Peripheral Products to Cantaloupe. All RMA’s expire thirty (30) days after the date of issuance. Hardware or Peripheral Products returned pursuant to an RMA must be unmodified and in appropriate packaging. As a condition to Cantaloupe’s warranty obligations, Customer shall return products to be examined and replaced to Cantaloupe’s facilities, in shipping cartons which clearly display a valid RMA number provided by Cantaloupe. Customer shall bear the risk of loss for such return shipment and shall bear all shipping costs. Hardware or Peripheral Products determined by Cantaloupe to be improperly returned or excluded from the warranty for reasons set forth in Section 2 above may be returned to Customer and if Customer requests a return, Cantaloupe will issue an invoice for, and Customer shall pay, any return shipment costs charged to Cantaloupe. If Cantaloupe determines that the returned products are defective, Cantaloupe will replace such products within a reasonable period after such determination. Additionally, in the event that Cantaloupe replaces a product, Cantaloupe will either waive the activation fee or issue an activation credit to offset the activation fee for the replacement product. Replacement Hardware and Peripheral Products may be reconditioned, refurbished or new. Replacement products shall be subject to the warranty, if any remains, originally applicable to the product replaced.
4. Sole and Exclusive Remedy. Cantaloupe’s sole obligation under the warranty described in this Appendix A shall be to replace non-conforming Hardware and Peripheral Products as set forth in the immediately preceding paragraphs. Cantaloupe’s warranty obligations shall run solely to Customer, and Cantaloupe shall have no obligation to customers or assignees of Customer, or other users of the Hardware or Peripheral Products.
CANTALOUPE CASHLESS SERVICES TERMS AND CONDITIONS
Cantaloupe Cashless Service enables merchant credit card transaction processing and payment gateway services with a third party credit card processor (“Processor”). The terms and conditions of this Appendix B govern the terms of Customer’s use of the Cantaloupe Cashless Services.
1. GRANT OF LICENSE. Cantaloupe hereby grants Customer a non- exclusive right during the term of the Agreement to use the Cantaloupe Cashless Services, subject to the restrictions herein and any other restrictions communicated by Cantaloupe to Customer.
2. PROCESSOR RELATIONSHIP REQUIRED. CUSTOMER HEREBY ACKNOWLEDGES THAT IT MUST SELECT AND ENTER INTO A CONTRACTUAL RELATIONSHIP WITH A PROCESSOR (“PROCESSOR AGREEMENT”) IN ORDER TO USE THE CANTALOUPE CASHLESS SERVICES AND THAT SUCH PROCESSOR RELATIONSHIP IS SOLELY BETWEEN CUSTOMER AND PROCESSOR AND THAT CANTALOUPE SHALL HAVE NO OBLIGATION OR LIABILITY WITH RESPECT TO SUCH RELATIONSHIP.
3. CUSTOMER COMPLIANCE OBLIGATIONS. Customer shall comply, at Customer’s own expense, with all provision of the Processor Agreement, and all laws, policies, guidelines, regulations, ordinances, rules applicable to Customer, Customer’s business and/or orders of any governmental authority or regulatory body having jurisdiction over electronic payment systems and payment transactions. Customer shall not use the Cantaloupe Cashless Services in any manner, or in furtherance of any activity that may cause Cantaloupe to be subject to investigation, prosecution, or legal action. Customer is solely responsible for verifying the accuracy and completeness of all transactions submitted and processed by Cantaloupe associated with Customer’s account and verifying that all corresponding funds are accurately processed. Customer acknowledges that Cantaloupe shall not be liable for any improperly processed or unauthorized transactions or illegal or fraudulent access to Customer’s account or transaction data. Cantaloupe’s liability for improperly processed or unauthorized transactions solely attributable to the negligence of Cantaloupe is limited pursuant to Section 13. Customer shall comply with all instructions and notices regarding use of Cantaloupe’s payment gateway. The failure of Customer to take the measures set forth herein may result in the immediate termination of Customer’s right to use the Cantaloupe Cashless Service. Customer expressly acknowledges and agrees that Cantaloupe may share information about Customer and Customer’s account with Customer’s selected Processor.
4. THIRD PARTY PRODUCTS AND SERVICES. Customer’s use of third party products and services shall be governed by and subject to separate third party product, service, software and/or license agreements. Cantaloupe will not be a party to such third party agreements and does not warrant or guarantee any third party product or service unless otherwise specifically addressed in the hardware warranty documentation provided with the equipment. Customer acknowledges that it will be required to obtain a credit card bezel in order to use the Cantaloupe Cashless Service and that Cantaloupe does not manufacture such hardware nor warrant the performance thereof, it being expressly agreed that any warranty with respect thereto shall be limited to the warranty provided by the manufacturer of the bezel. Customer authorizes Cantaloupe to disclose to any third party vendor information concerning Customer to the extent required to deliver the requested service. CANTALOUPE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS (INCLUDING, WITHOUT LIMITATION, CREDIT CARD READERS AND BEZELS) OR SERVICES (INCLUDING, WITHOUT LIMITATION, PROCESSING SERVICES). CUSTOMER’S USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT CUSTOMER’S OWN RISK. CANTALOUPE ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT CANTALOUPE IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.
6. PCI COMPLIANCE. Cantaloupe shall protect the privacy and security of the sensitive cardholder data collected through Cantaloupe’s Cashless Services via commercially reasonable and appropriate administrative, physical, and technical safeguards consistent with the applicable provisions of the Payment Card Industry Data Security Standard (“PCI DSS”). With respect to the Cantaloupe Cashless Services, at all times while this Agreement is in effect, Cantaloupe will maintain its status as a registered Third Party Agent with VISA and Master Card.
7. DATA STORAGE. At no time shall Cantaloupe have an obligation to store, retain, report or otherwise provide any copies of or access to any records of sensitive cardholder data collected or processed by Cantaloupe. However, Cantaloupe will retain non-sensitive credit card transaction data and make such data available for reporting purposes as may be required by the Processor.
8. CASHLESS SERVICE FEES. Customer shall pay to Cantaloupe the fees set forth on a Subscription Agreement. Cashless Service Fees may not be increased during the Term Commitment, but thereafter such fees may be modified from time to time upon 30 days’ prior notice to Customer. Cantaloupe may, at its discretion and upon prior written notice to Customer, provide for Processor to charge, bill, and collect fees from Customer on Cantaloupe’s behalf, in the amounts stated in and in accordance with the terms and conditions of the agreement between Customer and such Processor. If Customer’s relationship with a Processor expires or terminates and such Processor was billing Customer for certain fees, Customer agrees to pay Cantaloupe for any further use of the Cantaloupe Cashless Services effective immediately upon any such expiration or termination in accordance with the terms herein. If Customer is to be billed by a Processor for some or all of the fees associated with Cantaloupe Cashless Services, Customer shall pay the Processor in accordance with the terms mutually agreed upon between Customer and such Processor.
9. TERMINATION OF SERVICE BY CUSTOMER. Customer may immediately terminate its subscription for Cantaloupe Cashless Services at any time and for any reason, with or without cause, upon written notice to Cantaloupe provided that Customer has paid all fees accrued prior to the date of termination. In the event Customer is billed by a Processor, Customer hereby authorizes the Processor to terminate Cashless Services on Customer’s behalf.
10. TERMINATION OF SERVICE BY CANTALOUPE. Cantaloupe may terminate Customer’s right to use the Cantaloupe Cashless Services upon a breach by Customer of its obligations herein or pursuant to the Processor Agreement or Processor’s termination of the Processor Agreement; provided, however, that prior to such termination Cantaloupe shall provide Customer written notice of such breach and at least a fifteen (15) day opportunity to cure such breach, if such breach is susceptible to being cured.
11. SUSPENSION/TERMINATION OF SERVICE UPON LOSS OF AUTHORIZATION. Cantaloupe may suspend and/or terminate the Cantaloupe Cashless Services without notice and without liability upon receipt of notice from Customer’s Processor or acquiring bank that Customer is no longer entitled to send an authorization message, settlement message, or other message or payment data related to a credit card transaction to Customer’s Processor.
12. EFFECT OF TERMINATION. Upon termination of Customer’s subscription for Cantaloupe Cashless Services for any reason, all rights and obligations of the parties under this Appendix shall be extinguished, except that (a) all of Customer’s payment obligations hereunder shall survive such termination.
13. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. CANTALOUPE CASHLESS SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. CANTALOUPE DOES NOT REPRESENT OR WARRANT THAT THE CANTALOUPE CASHLESS SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR- FREE. CUSTOMER MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE CANTALOUPE CASHLESS SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY PROCESSOR. CANTALOUPE SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE CANTALOUPE CASHLESS SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT CANTALOUPE SHALL BEAR NO RISK WITH RESPECT TO CUSTOMER’S USE OF THE CASHLESS SERVICES OR CUSTOMER’S SALE OF PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD OR CHARGEBACKS.
14. INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Cantaloupe and its affiliates, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by Cantaloupe, arising out of or relating to (a) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Customer or any of Customer’s employees, agents or customers; (b) the reliability, accuracy, or legitimacy of Customer payment instructions or purchase orders submitted by Customer to Cantaloupe; (c) payment card transactions submitted by Customer or end users to Cantaloupe and rejected by Cantaloupe or an issuing bank; or (d) claims by end users, including, without limitation, claims relating to the disclosure of sensitive cardholder data unless such improper disclosure is primarily attributable to Cantaloupe’s breach of its obligations herein; (e) any alleged or actual violation by Customer of any applicable laws, regulations or rules of (i) the Credit Card Associations; (ii) the Gramm Leach Bliley Act; (iii) or any regulatory body or agency having jurisdiction over the subject matter hereof. In the event that fines and/or penalties are to be charged to Cantaloupe by the Credit Card Associations or any other entity arising in connection with any of the events described in (a) – (e) above, Customer agrees to immediately reimburse Cantaloupe for said fines or penalties.
SUPPLEMENTAL CARRIER TERMS AND CONDITIONS
1. Customer acknowledges that the services provided to Cantaloupe by the underlying carrier are made available only when the Customer equipment is in operating range of the facilities of the underlying carrier. In addition, the services of the underlying carrier may be temporarily refused, interrupted, or limited at any time because of: (i) limitations to the underlying carrier facilities; (ii) transmission limitations caused by atmospheric, topographical or other factors outside of the underlying carrier’s reasonable control; or (iii) equipment modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of the services provided to Cantaloupe by the underlying carrier. Individual data transmissions may be involuntarily delayed for a variety of reasons, including atmospheric conditions, topography, weak batteries, system over-capacity, movement outside a geographic locations in which the services are available from time to time and gaps in coverage within said geographic locations.
2. Customer acknowledges that: (i) it is possible for third parties to monitor data traffic over the facilities of the underlying carrier and privacy cannot be guaranteed; (ii) if Customer desires to secure transmission of data, Customer must provide for its own means of doing so; and (iii) Customer assume full responsibility for the establishment of appropriate security measures to control access to its own respective equipment and information.
3. Subject to FCC Number portability rules, Customer has no property or other rights in any identifier or number assigned to it and Customer understands that any such identifier or number can be changed from time to time.
4. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING CARRIER AND THAT CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CANTALOUPE AND THE UNDERLYING CARRIER. IN ADDITION, CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AND SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CUSTOMER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
5. CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS THE UNDERLYING CARRIER SUPPLYING SERVICES TO CANTALOUPE, AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, INFRINGEMENT OF COPYRIGHT, OR PERSONAL INJURY OR DEATH, ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT OR THE USE, MISUSE, FAILURE TO USE, OR INABILITY TO USE THE COMMUNICATION EQUIPMENT. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
6. THE UNDERLYING CARRIER’S SERVICES DO NOT INCLUDE ANY VOICE SERVICES. THE SIM SUPPLIED WITH THE SEED HARDWARE MAY ONLY BE USED IN THE SEED HARDWARE PROVIDED BY CANTALOUPE AND IN NO OTHER WIRELESS DEVICE.
7. Customer’s Service may be temporarily suspended or permanently terminated upon little or no notice in the event that Cantaloupe’s agreement with the underlying carrier is terminated or in the event the Customer violates the underlying carrier’s published “Acceptable Use Policy” or other published network rules and policies. End User waives any and all claims against the underlying wireless service carrier for such suspension or termination.
8. CUSTOMER HEREBY ACKNOWLEDGES THAT CANTALOUPE IS ACTING AS AGENT TO THE UNDERLYING CARRIER SUPPLYING SERVICES TO CANTALOUPE FOR THE LIMITED PURPOSE OF SECURING PERFORMANCE OF THE FOREGOING PROVISIONS.