CLOVER TERMS AND CONDITIONS
- Clover Services.
- 1.1 The “Clover Services” consist of a proprietary operating system, firmware, and a suite of software applications (“Clover SaaS Applications”) that integrate point of sale functionality and other services made available by First Data Merchant Services LLC (“First Data”) through Clover Devices (defined below) as well as a First Data designated website.
- 1.2 The “Clover SaaS Applications” that make up the “Initial Clover Services” may vary from time-to-time and will be those that are in effect on the effective date of the Order Form. Periodic updates to the Clover SaaS Applications (such as maintenance releases or bug fixes) will be provided by First Data. Merchant may obtain documentation and an operating guide for the Clover Services via the Internet. Merchant may download the Initial Clover Services during or after the initial set-up of their Clover Devices or they may be pre-installed on the Clover Devices purchased by Merchant. In order to access and use the Clover SaaS Applications, it may be necessary for Merchant to accept the terms of the license agreement then offered by First Data or Clover Networks, Inc., an affiliate of First Data (“Clover”).
- 1.3 Clover Services will enable electronic communications with Merchant’s customers (such as sending digital transaction receipts, marketing, or other materials via email or text). Customers must consent to receiving electronic communications and provide their email address or phone number when prompted by the Clover Services in order to receive these electronic communications. Electronic communications may be from the Merchant, Five Stars, First Data, Clover or other third parties (such as an App Developer, as defined below). First Data, Fivestars and Merchant may not independently provide or modify a customer’s consent to electronic communications. Some laws may limit how a customer’s contact information is used for electronic communications. Each party is responsible for understanding and complying with these laws. First Data is not responsible for the failure of Fivestars or Merchant or any third party to comply with these Laws. Fivestars is not responsible for the failure of First Data or Merchant or any third party to comply with these Laws.
- 1.4 Clover Services will also support offline payment transactions and point-of-sale activities; however, the Merchant conducts these transactions and activities at its own risk and will be responsible for any subsequent transaction denials or chargebacks.
- 1.5 Merchant’s use of Clover Services requires Merchant to set up and maintain an account with Clover. Information that the Merchant provides when setting up this account is the Merchant’s Confidential Information, and First Data and Clover will manage the account information according to the terms of Clover’s privacy policy (available at clover.com/privacy-policy). Merchant is responsible for maintaining the confidentiality of its account information and access credentials (such as account numbers, passwords, or security questions and answers). First Data and Clover will rely on the Merchant’s account credentials to authenticate access to Merchant’s account or its information, and may deny access to Merchant’s account if it believes someone is misusing the Merchant’s credentials.
- 1.6 The Clover Services also will provide Merchant with access to a digital marketplace (“Clover App Market”) with links to third party software applications (“Third Party Applications”) that the Merchant may license directly from the developer of the Third Party Application (“App Developers’). Although designed to function with the Clover Services, Third Party Applications are not part of the Clover Services and are provided under separate agreements between the App Developer and Merchant. Merchant uses Third Party Applications at its own risk. First Data has no responsibilities or performance obligations for Third Party Applications.
- 1.7 Payment for the Initial Clover Services and any subsequent purchases of access to Clover SaaS Applications and Third Party Applications will be made by ACH.
- 2. Clover Equipment.
- 2.1 Merchant initially shall purchase the Clover Equipment set forth in the Order Form. Payment for the Clover Equipment will be made by ACH.
- 2.2 Merchant may order additional Clover Equipment by submitting an additional Order Form to Fivestars, in the form designated by Fivestars. Payment for the additional Clover Equipment will be made by ACH.
- 2.3 The Clover Equipment will be shipped to the location designated by Merchant, which may be stated in the Order Form or by other written instructions from the Merchant. Merchant is responsible for ensuring the accuracy and completeness of all information, data, and instructions that it provides in connection with an order for Clover Equipment. First Data and Fivestars will rely on the information, data, and instructions provided by Merchant when shipping the Clover Equipment; however, neither First Data nor Fivestars will be required to act on the Merchant’s instructions if it reasonably doubts the accuracy of such information, data, and instructions or its compliance with this Agreement or any laws.
- 2.4 Title to the Clover Equipment (and risk of loss for it) will transfer to Merchant when delivered to the carrier that is responsible for shipment from the point of shipment to the Merchant.
- 2.5 Merchant will be responsible for payment of all applicable taxes with respect to the sale of the Clover Equipment or the license of the Clover Services, Clover SaaS Applications or Third Party Applications, including sales and use taxes. Payment of such amounts shall be made by ACH.
- 3. Limited Warranty.
- 3.1 First Data warrants that Clover Equipment will be free from defects in materials or workmanship for one year (“Warranty Period”) beginning on the date that the Clover Equipment is shipped to Merchant (the “Limited Warranty”).
- 3.2 The Limited Warranty does not:
- 3.2.1 apply to non-standard Clover Equipment or any software or the peripherals, materials, supplies, or accessories used in connection with the Clover Equipment;
- 3.2.2 cover damage to, accident, or misuse of the Clover Equipment, including: damage resulting from smashed or cracked units or screens; extraneous materials in the interior of the unit (such as cat hair, soil, or dust); contact with liquids; missing unit covers; fire damage; melted or burnt units; cosmetic damage (such as scratches, dents, or broken plastic on ports); improper or inadequate maintenance by Merchant (or Merchant’s vendors or users); other visible damage; or Merchant’s breach of this Agreement; or
- 3.2.3 apply to defects or damage resulting from software, interfaces, or supplies not provided by First Data; negligence, accident, or acts of nature (including, flood or lightning damage); loss or damage in transit; improper site preparation by the Merchant (or its vendors or users); failure to follow written instructions on proper use of the Clover Equipment; unauthorized modification or repair; or normal wear and tear.
- 3.3 Except as specifically set forth in these terms, First Data disclaims all warranties (express or implied) related to the Clover Equipment, including warranties of merchantability, fitness for a particular purpose, non-infringement, accuracy, and uninterrupted or error-free operation.
- 3.4 Merchant must contact First Data’s support center for assistance with defective Clover Equipment. First Data will provide a Return Merchandise Authorization (“RMA”) call tag to the Merchant, if First Data deems the Clover Equipment defective during the Warranty Period. The Merchant, at its cost, may use the RMA to ship the defective Clover Equipment to First Data’s repair facility. First Data will arrange for defective Clover Equipment covered by the Limited Warranty to be repaired or replaced, and shipped back to Merchant at no additional cost. First Data warrants replacement equipment for the remainder of the Warranty Period corresponding to the original Clover Equipment.
- 3.5 Merchant may not transfer the Limited Warranty to any third party.
- Force Majeure. Each of First Data, Clover, Fivestars and Merchant will be excused from their performance obligations under these Clover Terms and Conditions if their respective performance is prevented by: (1) civil unrest, including labor disputes, strikes, or riots; (2) natural disasters, including floods, hurricanes, tornadoes, or earthquakes; (3) rationing or other materials shortages; (4) utility grid failures, including electric transmission or communication line failures; (5) changes in laws; or (6) governmental or judicial acts; all of which are beyond a party’s reasonable control (these events, Force Majeure Events). Each party will resume their performance under these Clover Terms and Conditions as soon as reasonably possible following a Force Majeure Event.