IMPORTANT: PLEASE READ THIS CLAI PAYMENTS END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE INSTALLING OR USING THE SOFTWARE PRODUCTS (“SOFTWARE”) AND CLAI PAYMENTS PROFESSIONAL SERVICES (“SERVICES”) THAT YOU OR THE ENTITY YOU REPRESENT (“END USER”) OBTAIN FROM CLAI PAYMENTS USA LLC. (“CLAI”) OR FROM ANY THIRD PARTY AUTHORIZED BY CLAI TO RESELL THE SOFTWARE AND SERVICES (“PARTNER”). BY CLICKING THE ACCEPTANCE BUTTON, ACCESSING, DOWNLOADING, INSTALLING, OR USING THE SOFTWARE OR SERVICES, YOU: (1) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND END USER; (2) REPRESENT AND WARRANT THAT END USER HAS CAREFULLY READ THROUGH THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS; AND (3) AGREE THAT END USER IS BOUND BY THIS AGREEMENT WITH CLAI, UNLESS A SEPARATE WRITTEN AGREEMENT IS IN EFFECT THAT SPECIFICALLY GOVERNS THE SUBJECT MATTER HEREOF. IF END USER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK THE ACCEPTANCE BUTTON, ACCESS, DOWNLOAD, INSTALL OR USE THE SOFTWARE OR SERVICES.
End User may purchase from CLAI or Partner a Pay-As-You-Go Software License, whereby subject to End User’s compliance with the terms and conditions of this Agreement, CLAI grants End User and any third party that End User authorizes to perform services involving the Software solely for End User’s benefit, a non-transferable, non-sublicensable, non-exclusive license to use the Software subject to the use limitations described in Section 6 of this Agreement, the applicable license, or Order in executable object code format only, solely for End User’s internal use, and solely for use in accordance with the Documentation.
End User may be granted a limited-use license for evaluation purposes only of the Software (“Evaluation License”) for an initial evaluation period of 90 days (“Evaluation Period”). CLAI reserves the right to terminate the evaluation of the Software at any time, including prior to the expiry of the Evaluation Period, in its sole discretion. Evaluation Licenses are identified in the Order entered with End User and are subject to the terms and conditions of this Agreement. End User shall enter into the Software License offered by CLAI at the conclusion of the Evaluation Period, otherwise, End User’s rights under this Agreement shall terminate and End User shall promptly delete all CLAI evaluation Software. For evaluations of the Software, only Sections 1.2, 4, 7, 8.2, 9.1, 10, 11, 13, 15, 16 and 17 of this Agreement shall apply. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SOFTWARE LICENSED FOR EVALUATION UNDER THIS SECTION IS PROVIDED TO END USER “AS IS,” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED.
Pay-As-You-Go Software Licenses are a month-to-month license to use the Software, subject to a minimum test transaction monthly usage commitment of the Software as measured in test transactions and set forth at https://clai.com/paytester-pricing (“Monthly Minimum Test Transaction”). End User shall pay the Monthly fee to CLAI or Partner each month of a Pay-As-You-Go Software License until terminated pursuant to Section 4 of this Agreement, irrespective of whether End User’s actual usage is below the Monthly Minimum. In addition, End User shall pay for any usage of the Software in excess of the Monthly Minimum Test Transactions. End User is responsible for payment of 50% of the Monthly Commitment if the Pay-As-You-Go Software License is purchased after the 15th of any calendar month, and any usage in excess of the Monthly Commitment. Following that first month, Pay-As-You-Go Software Licenses renew each month and End User is responsible for payment of the Monthly Commitment unless terminated pursuant to Section 4 of this Agreement.
End User may utilize Pay-As-You-Go Software Licenses above and beyond the Monthly Minimum by paying CLAI or Partner for On-Demand usage at the On-Demand Test Transaction Rate. “On-Demand” means any Test Transaction execution beyond the Monthly Minimum.
CLAI access of metering data for test transactions is an integral component of delivering Pay-As-You-Go Software Licenses. End User acknowledges and agrees that the rates charged for a Pay-As-You-Go Software License is contingent upon CLAI’s access monthly to provisioned testing environment with the solely goal to access metering information for testing transactions. Therefore, End User acknowledges and consents CLAI’s ability to access metering data on a monthly basis. Notwithstanding any other rights or remedies available to CLAI, CLAI reserves the right to exercise any of the following remedies if the metering of test transaction data is not available at any time during the Pay-As-You-Go Term: (a) CLAI may request and End User shall promptly provide CLAI, a written report that includes reasonable detail of End User’s test transaction execution data including details to seconds for test transaction usage; or (b) upon 15 days’ prior notice, CLAI may suspend or terminate End User’s Software license. End User acknowledges and agrees that the Software licenses may expire or be suspended as a result of End User’s failure to enable and allow access to the test transaction metering data. Such expiration or suspension of the Software license shall not constitute a breach by CLAI under this Agreement.
End User may select any supported hardware to install and evaluate, or license the Software. End User is solely responsible for the hardware configuration, setup, provision, and administration and will not hold against CLAI any hardware management, failure that may occur, whether security related, environment administration, loss of data, backups, provision, capacity planning, and compliance.
End User understands that TPS execution is dependent on the provisioned hardware environment where the Software resides. Minimum hardware requirements to execute up to 100 transactions per second (TPS) at any time while executing transactional tests through Software are 4250 CPW, 5GB RAM. End User also understands that execution in TPS is not guaranteed as networking traffic and other loads might interfere during the execution and transmission of the testing transactions, and requirements is only provided as a guidance.
End User shall use the Software in compliance with all applicable laws, ordinances, rules and regulations, shall not violate or attempt to violate CLAI’s system, and shall not misuse the Software in any way. End User shall be responsible for End User’s use of the Software.
Either party may terminate this Agreement for cause, immediately upon written notice to the other party if (collectively, “For Cause”): (a) the other party materially breaches any of the terms of this Agreement, and fails to cure that breach within 30 days of its receipt of written notice of that breach; or (b) a party becomes insolvent or makes an assignment of this Agreement for the benefit of creditors or is the subject of a bankruptcy or similar proceeding. In addition, if End User materially breaches this Agreement, or fails to pay any undisputed amounts when due, then upon 7 days’ notice, CLAI may suspend the applicable Software licenses until that breach is cured. Any suspension will not affect, or otherwise toll the Subscription Term or any amounts due for the period of the suspension.
End User may terminate this Agreement at any time by
(a) providing CLAI 30 days’ prior written notice for Pay-As-You-Go licenses; and (b) paying for all utilization or consumption of the Software through the date of termination.
Software License – Monthly Minimum. Monthly Minimums are invoiced monthly in arrears.
End User shall pay all invoices for Pay-As-You-Go Licenses issued by CLAI 30 days from receipt of invoice. CLAI reserves the right to charge one and one-half percent (1 ½) per month on the unpaid balance or the maximum rate allowed by law, whichever is less for any amounts not paid when due. If an electronic payment method is required by CLAI, then End User authorizes CLAI to automatically charge the payment method provided to CLAI’s third party payment processor. If CLAI approves End User for credit terms (i.e. a monthly invoicing option), CLAI will invoice End User for the Monthly Minimum in arrears and End User shall pay the Monthly Minimum within 30 days after the end of the calendar month in which the Monthly Minimum applies.
The fees and charges covered under this Agreement are exclusive of any taxes, duties, or tariffs imposed or levied on the Software and any services that may be provided under the Agreement. End User is responsible for, and will promptly pay in full, all taxes and duties of any kind including, but not limited to sales, use, and withholding taxes, except for taxes based on CLAI’s net income.
All Orders are subject to CLAI’s written acceptance. Except as set forth in Section 4 of this Agreement, all Orders are non-cancellable and non-refundable.
End User shall not directly or indirectly: (a) reproduce, modify, assign, disclose or make available any portion of the Software (or any related documentation) to any third party (except as otherwise authorized herein); (b) rent, lease or sublicense the Software, unless otherwise authorized by CLAI in writing; (c) reverse engineer, decompile, or disassemble any portion of the Software, or otherwise attempt to decrypt, extract, or derive the source code for, or any algorithms or data structures embodied within, any portion of the Software (except to the extent the foregoing restriction is expressly prohibited by applicable law); (d) monetize, distribute, or sell the Software (or any related documentation); (e) use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes; (f) use the Software to develop a similar product or service; (g) publish or disclose to any third party any technical features, performance or benchmark tests, or comparative or competitive analyses related to the Software, except for internal use by the End User or as may be authorized by CLAI in writing; (h) remove any product identification, proprietary, copyright or other notices contained in the Software (including any reports or data printed or exported from the Software); (i) modify any part of the Software, create a derivative work of any part of the Software, incorporate or embed the Software into or with other software, or use the Software (or any part thereof) to provide any product or service to a third party; (j) use the Software if End User is a direct competitor of CLAI, except with CLAI’s prior written consent; (k) use the Software for or on behalf of public cloud service providers; or (l) offer the Software as part of End User’s solution within the End User’s client environment, where End User is a consulting company.
All software provided under this Agreement is licensed and not sold to End User. CLAI and its suppliers shall exclusively own and retain all intellectual property rights, including patent, trademark, trade name and copyright, whether registered or not registered, in and to the Software and related documentation, and any modifications, improvements, enhancements, customizations, Updates, or derivative works thereof. CLAI and its suppliers reserve all rights not expressly granted herein, and no other license or other implied rights not expressly granted herein, and no other license or other implied rights of any kind are granted or conveyed. No title or ownership of the intellectual property rights passes under this Agreement, and all rights not expressly granted to End User in this Agreement are reserved. In the event that items of software code provided with the Software are subject to “open source” or “free software” licenses, nothing herein limits End User’s rights under, or grants rights that supersede, the applicable license therefor.
CLAI may make available to End User beta or pre-release versions of the Software (“Pre-Release Software”). End User acknowledges that Pre Release Software products: (a) are not at the level of performance or compatibility of final, generally available products; (b) are not to be used in a production environment; (c) may not operate correctly; and (d) may be modified prior to being made generally available. End User agrees to notify CLAI of any bugs or problems in Pre-Release Software.
End User may provide feedback to CLAI regarding the use, operation, performance, and functionality of the Software products, including identifying potential errors and improvements (collectively, “Feedback”). End User grants to CLAI a perpetual, irrevocable, worldwide, sublicenseable, fully paid-up and royalty-free right to modify and use the Feedback in any manner, provided that Feedback is anonymized and does not identify End User.
CLAI may provide the generally available Software maintenance and technical support in accordance with the CLAI’s Customer Support Guide during the term for which End User has purchased such Software subscription. CLAI may designate support partners and authorized resellers to deliver the CLAI Software in accordance with the terms of this Agreement. CLAI -branded professional installation or other Services are provided to End User under the terms of CLAI’s Professional Services Addendum (https://www.clai.com/professional-services-addendum.pdf), incorporated herein by reference.
CLAI may accumulate and aggregate certain anonymous statistical and related data in order to improve the performance and functionality of its Software, to develop new products and/or Software or to analyze the usage of the Software. CLAI may use aggregated anonymous data for such purposes as CLAI, in its sole discretion, deems to be appropriate.
End User agrees that CLAI may, to the extent permitted by law, receive and use certain usage data collected in connection with the Software licensed under this Agreement including name, contact info, consumption information, and other related data to provide billing information and usage information pursuant to this Agreement. This data may also be used to evaluate and improve CLAI products, for product sales and marketing initiatives (without identifying End User). Such information may be shared with service providers, vendors or agents only for the purpose of performing services on CLAI’s behalf.
Testing Data is of the property of End User. All information defined in the Software to build transactional testing data is the responsibility of End User. End User agrees to comply with all local regulations and organizational compliance directives when defining transactional testing data.
End User is solely responsible for defining and selecting the region \ location where all testing data will be stored during the subscription of the hardware environment to be provisioned to host the Software.
CLAI may at its expense, but no more than once per year for auditing End User’s use of the Software. Any such audit shall either be conducted by means of remote access from a CLAI location during regular business hours and shall not unreasonably interfere with End User’s business activities.
Subject to this Section 11, CLAI warrants that the Software will perform in substantial accordance with the corresponding Software Documentation during the subscription period.
End User may contact CLAI via email at email@example.com for warranty service. End User’s exclusive remedy and CLAI’s sole liability for breach of this software warranty is that CLAI shall, at its own expense, use commercially reasonable efforts to correct or replace the Software. This warranty is provided to the original End User only and is not transferable.
The warranties herein do not cover defects or damages resulting from: (a) use of Software other than in a normal and customary manner in accordance with CLAI’s Documentation; (b) physical or electronic abuse or misuse, accident, or neglect; or (c) modification, alterations or addition made to the Software that are not authorized by CLAI in writing. Pre-Release Software products are provided without warranty or liability of any kind, for use at End User’s own risk. CLAI will use reasonable efforts to destroy (but have no liability for any loss or inadvertent disclosure of) data stored or remaining on a Software product returned to CLAI. Under this Agreement, all returned Software products and components become the property of CLAI. CLAI does not honor any warranties or support contracts for Software purchased through grey market channels (i.e. sources and/or sales channels other than authorized CLAI resellers, regardless of what may be advertised).
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, CLAI AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, TO THE EXTENT WARRANTIES MAY BE DISCLAIMED UNDER APPLICABLE LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON INFRINGEMENT. CLAI DOES NOT WARRANT AGAINST LOSS OR INACCURACY OF DATA OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE OR WILL FULFILL ANY OF END USER’S PARTICULAR PURPOSES OR NEEDS. CLAI PROVIDES THE SOFTWARE ON AN “AS IS” BASIS. THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE WHERE FAILURE OF THE SOFTWARE COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE OR PROPERTY DAMAGE. END USER IS RESPONSIBLE FOR ENSURING THAT IT HAS APPROPRIATE DATA BACK-UP, DATA RECOVERY, AND DISASTER RECOVERY MEASURES IN PLACE.
“Confidential Information” means any and all non-public, confidential or proprietary information of a disclosing party (“Discloser”), whether disclosed orally or in written or digital media, received by the receiving party (“Recipient”), that is identified as “confidential” or with a similar legend at the time of such disclosure or that Recipient knows or should have known is confidential or proprietary information of Discloser. CLAI’s Confidential Information includes all non-public information relating to, or derived from, the Software and Services, including technical features, benchmark results, or performance results. Information does not constitute a party’s Confidential Information if it (a) is already known by Recipient without obligation of confidentiality; (b) is independently developed by Recipient without use of Discloser’s Confidential Information; (c) is publicly known without breach of this Agreement; or (d) is lawfully received from a third party without obligation of confidentiality. Recipient shall: (i) not use or disclose any Confidential Information except as expressly authorized by this Agreement or Discloser; (ii) protect Discloser’s Confidential Information using the same degree of care that it uses with respect to its own confidential information of a like nature, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances; and (iii) limit access to Discloser’s Confidential Information to its employees, affiliates, agents, or authorized representatives having a need to know and who are bound by confidentiality obligations no less protective to those contained herein. Recipient shall take prompt and appropriate action to prevent unauthorized use or disclosure of Discloser’s Confidential Information. Recipient’s obligations under this Section 12 survive termination and continue for five (5) years from the date of termination of this Agreement. All tangible materials containing Confidential Information shall remain the property of Discloser. Upon termination, Recipient shall cease any use of Confidential Information. Upon Discloser’s written request, the receiving party shall promptly return (or at Discloser’s option, destroy) all documents and tangible materials containing any portion of, or summarizing, Discloser’s Confidential Information. At Discloser’s request, an authorized representative of Recipient shall provide a certificate attesting to compliance with this section. If any Confidential Information must be disclosed to any third party by reason of legal, accounting, or regulatory requirements, Recipient shall promptly notify Discloser of the order or request and permit Discloser (at its own expense) to seek an appropriate protective order. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the Discloser will be entitled to seek injunctive relief for any threatened or actual disclosure by the Recipient.
CLAI will indemnify and defend End User, at CLAI’s expense, against any action brought by a third party against End User to the extent that the action is based upon a claim that the Software directly infringes any copyrights or U.S. patents or misappropriates any trade secrets, and CLAI will pay those costs and damages finally awarded by a court of competent jurisdiction against End User in any such action that are specifically attributable to such claim or those costs and damages agreed to by CLAI in a monetary settlement of such action. If End User’s use of the Software is, or in CLAI’s opinion is likely to become, enjoined as a result of an infringement claim, CLAI will, at its option and expense, either (a) procure the right to continue using the Software; (b) replace or modify the Software so that it becomes non-infringing and remains functionally equivalent; or (c) if, despite its commercially reasonable efforts, CLAI is unable to do either (a) or (b), CLAI will terminate the rights herein, and refund a portion of any price End User paid under this Agreement prorated over a three year period from the date of purchase. Notwithstanding the foregoing, CLAI will have no obligation with respect to any infringement claim based upon (i) any use of the Software that is not in accordance with this Agreement or the corresponding Software documentation; (ii) any use of the Software in combination with other products, equipment, software, or data not supplied by CLAI if such infringement would not have arisen but for such combination; (iii) use of any release of the Software other than the current and immediately preceding version; or (iv) any modification of the Software by any person other than CLAI if such infringement would not have arisen but for such modification. This Section 13 states CLAI’s entire liability, and End User’s sole and exclusive remedy, for infringement claims and actions. The obligations of this Section 14 are subject to End User notifying CLAI promptly in writing of such action, giving CLAI sole control of the defense thereof and any related settlement negotiations, and cooperating and assisting in such defense at CLAI’s reasonable request and expense (including reasonable attorneys’ fees).
IN NO EVENT WILL CLAI, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS AND EMPLOYEES NOR ITS SUPPLIERS (COLLECTIVELY, THE “CLAI PARTIES”) BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR LOST PROFITS, LOST OR CORRUPTED DATA, OR INTERRUPTION OF BUSINESS ARISING IN CONNECTION WITH THE USE OF THE SOFTWARE OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF THE CLAI PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN CLAI’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION), TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CLAI PARTIES’ AGGREGATE LIABILITY UNDER OR RELATING TO THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY END USER FOR SOFTWARE THAT GAVE RISE TO SUCH CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
This Agreement is governed and interpreted by and under the laws of the State of Texas without giving effect to any conflicts of law principles. The parties expressly consent to the jurisdiction of, and venue in, the state and federal courts in Houston, Texas for any lawsuit filed there arising from or related to this Agreement. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Except as specifically stated, all notices or other communications required or permitted under this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt.
The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
This Agreement, and End User’s rights and obligations herein, shall not be assigned by End User without CLAI’s prior written consent, which consent will not be unreasonably withheld. Any attempted assignment in violation of the foregoing is null and void.
The parties agree to comply with all laws applicable to the distribution and use of the Software and performance of its obligations under this Agreement.
Neither party is liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, food, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, volcanic eruption, material shortages or any other cause that is beyond the reasonable control of the party.
The Software and related documentation are “commercial off the shelf items” as defined in FAR 2.101 and their use is subject to the policies set forth in FAR 12.211, FAR 12.212 and FAR 227.7202, as applicable.
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement remain enforceable and the invalid or unenforceable provision is deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. End User agrees not to export, re-export, or transfer, directly or indirectly, any technical data acquired from CLAI, or any products incorporating such data, in violation of applicable export laws or regulations. For purposes of CLAI’s compliance with applicable export laws, End User agrees to provide CLAI with applicable end use information upon CLAI’s request.
This Agreement, including any terms referenced herein, is the entire agreement between the End User and CLAI with respect to the subject matter hereof. Any varying or additional terms relating to the subject matter hereof in any purchase order, discussion, or other written document will be of no effect. CLAI reserves the right to update this Agreement from time to time, as noted by the “Last Updated” date below.
Means the standard end-user technical documentation and specifications that CLAI provides or makes available with the Software, as revised by CLAI from time to time.
Means the ordering document issued by End User and accepted by CLAI or CLAI’s authorized reseller, as applicable, that describes the Software CLAI will provide to End User, the fees and any other applicable commercial terms.
Means the CLAI proprietary software set forth in an Order, the Documentation, and any Update thereto if and when such Updates are made available by CLAI, and excludes open-source Software.
Means the term of the subscription license to the Software, as set forth on the applicable Order.
Means an update of the Software that CLAI makes generally available at no additional charge to other customers that receive support, including, if and when available, bug fixes, patches, maintenance releases, new point releases, and new major version releases. Updates include only the Software licensed by End User hereunder, and do not include any new options, new or future product, or any upgrade in features, functionality or performance of the Software that CLAI licenses separately from the Software or offers only for an additional fee.