Heartland Payment Systems Inc., a Global Payments Company (and its parents, subsidiaries and affiliates, hereafter “Heartland”) is
pleased to offer you, subject to the terms and conditions below, the Heartland Analytics Email Marketing Tool (the “Service”), a
platform that enables you to send targeted emails to your customers. These Terms and Conditions (this “Agreement”) is a legal contract
between you and Heartland. This Agreement governs your use of the software needed to access the Service (the “Software”). The Software
is only for your own business use. You may not use the Software in any way that harms Heartland or any other person or entity, as determined
by Heartland in its sole discretion. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU PROCEED WITH THE REGISTRATION PROCESS OR OTHERWISE
ACCESS THE SERVICE USING THE SOFTWARE BECAUSE IT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU, AS EITHER AN INDIVIDUAL OR A SINGLE
BUSINESS ENTITY, AND HEARTLAND.
THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU
HAVE READ THIS AGREEMENT, YOU UNDERSTAND IT, AND YOU UNCONDITIONALLY ACCEPT AND AGREE TO COMPLY WITH AND BE BOUND BY ITS TERMS. YOU ARE AGREEING
TO THESE THINGS REGARDLESS OF HOW YOU ACCESS THE SERVICE. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD REFRAIN
AND OTHER POLICIES THAT HEARTLAND MAY ADOPT FROM TIME TO TIME AND ANY DOCUMENTATION ACCOMPANYING SUCH POLICIES (COLLECTIVELY, THE “DOCUMENTATION”).
REFERENCE AUTOMATICALLY UPON THEIR ADOPTION, THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND HEARTLAND CONCERNING THE SOFTWARE, AND
THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR AGREEMENT OR UNDERSTANDING YOU MAY HAVE HAD WITH HEARTLAND RELATING TO THE SOFTWARE.
HEARTLAND MAY MODIFY THIS AGREEMENT AT ANY TIME WITH OR WITHOUT PRIOR NOTICE EVEN THOUGH SUCH CHANGES MAY AFFECT YOUR ABILITY TO USE THE SERVICE.
IF YOU CONTINUE TO ACCESS OR USE THE SERVICE IN ANY WAY AFTER THIS AGREEMENT HAS BEEN CHANGED, YOU WILL BE DEEMED TO HAVE READ, UNDERSTOOD AND
UNCONDITIONALLY AGREED TO SUCH CHANGES. THE MOST CURRENT VERSION OF THIS AGREEMENT WILL BE AVAILABLE ON THE SERVICE AND WILL SUPERSEDE ALL
PREVIOUS VERSIONS OF THIS AGREEMENT.
1.1 Grant of License. Subject to the terms and conditions of this Agreement, Heartland hereby grants to you, and you accept, a limited, non-exclusive,
non-transferable and revocable license to use the Software only as authorized in this Agreement. For purposes of this Agreement, references to the
“Software” includes all related hardware, graphics, user interfaces, content, and the scripts and software code used to implement the Service and
any updates, upgrades, enhancements, modifications, revisions, or additions to the Software made by Heartland and made available to end-users by
Heartland (unless accompanied by a separate license, in which case the terms and conditions of that license will govern to the extent of any conflict
or inconsistency between the terms of that license and the terms of this Agreement). Heartland shall nevertheless be under no obligation to provide
any updates, enhancements, modifications, revisions, or additions to the Software.
1.2 No Copies or Modifications. You may not reverse engineer, copy, decompile, disassemble, derive the source code of, modify, adapt, capture, reproduce,
publicly display, publicly perform, transfer, sell,
license, create derivative works from or based upon, republish, upload, edit, post, transmit, distribute, exploit, circumvent or otherwise translate
(or attempt, or encourage or assist any other person, to do any of the foregoing), in whole or in part, the Software, the Service, or other content obtained
via the Service.
1.3 No Assignment of Rights. You may not (and you agree that you will not) sublicense, lease, rent, lend or otherwise transfer your rights in the Software
to any person or entity without prior written consent of Heartland, which may be granted or withheld in Heartland's sole discretion.
1.4 Territory. The ability to download the Software is being made available to you only in the United States and is not available in any other location.
You agree not to access or use or attempt to access or use the Software from outside of the United States. Heartland may use technologies to verify such compliance.
2. Intellectual Property and Confidentiality.
2.1 Ownership. You acknowledge and agree that the Software contains proprietary information and material that is owned by Heartland and/or its licensors,
and is protected by applicable intellectual property and other laws, including but not limited to domestic and international copyright and trademark laws,
and that you will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with the terms of
this Agreement. No portion of the Software may be reproduced in any form or by any means, except as expressly permitted hereunder.
2.2 Proprietary Rights to Software. You acknowledge that the Software is proprietary to Heartland, and the Software is protected under United States
copyright law and international treaties. You further acknowledge and agree that, as between you and Heartland, Heartland owns and shall continue to own
all right, title, and interest in and to the Software, including associated intellectual property rights under copyright, trade secret, patent, or
trademark laws. This Agreement does not grant you any ownership interest in or to the Software, but only a limited right of use that is revocable in
accordance with the terms of this Agreement.
2.3 Use Reporting, License Violations and Remedies. Heartland reserves the right to gather data on Service usage through the Software and other information
deemed relevant, to ensure that the Service is being used in accordance with the terms of this Agreement. You agree not to block, electronically or otherwise,
the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this Agreement is considered to be
violation of this Agreement and may result in immediate termination of this Agreement.
3. Term and Termination.
3.1 Effective Date. This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, accessing, or otherwise using the Software,
even if you have not expressly accepted this Agreement. The Service has no predetermined termination date and may continue until such time as Heartland decides
to terminate the Service.
3.2 Termination by Heartland. If you fail, or Heartland suspects that you have failed, to comply with any of the provisions of this Agreement, then without
limiting Heartland's other rights and remedies, all of which are expressly reserved, Heartland, in its sole discretion, without notice to you may: (i) terminate
this Agreement, and you will remain liable for all amounts due up to and including the date of termination; and/or (ii) terminate the licenses granted hereunder;
and/or (iii) preclude access to the Service in whole or in part.
3.3 Right To Modify, Suspend or Discontinue Service. Heartland reserves the right to modify, suspend, or discontinue the Service in whole or in part at any time
with or without notice to you, and Heartland will not be liable to you or to any third party should it exercise such rights.
4. Representations and Warranties. By using the Service, you represent and warrant that (i) you complied with all applicable state, federal and local laws, rules
and regulations (including without limitation the CAN-SPAM Act, the Telephone Consumer Protection Act of 1991 (“TCPA”), and the FTC and FCC rules and regulations
implementing each of the same) (collectively, "Laws") in soliciting and
collecting all consumer information you use in connection with the Service (including but not limited to providing an opt-out mechanism in each email sent through
the Service) and (ii) your use of the Service will comply with all applicable laws.
You will, at your own expense, indemnify, release and hold Heartland, and its parent, subsidiaries and affiliates, and all officers, directors, and employees
thereof, and anyone acting on Heartland’s behalf (all such individuals and entities collectively referred to herein as the “Heartland Entities”), harmless from and
against any and all third party claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees
(collectively, “Claims”), arising out of (a) any use of the Software by you or by any person that you allow to use the Software, (b) any breach of this Agreement
by you or by any person that you allow to use the Software, (c) any violation of any laws or regulations or the rights of any third party by you or by any person
that you allow to use the Software; or (d) a breach of your representations and warranties hereunder.
6.1 Disclaimer of Warranties. THE SOFTWARE AND THE SERVICE IS PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. HEARTLAND MAKES
NO REPRESENTATIONS OR WARRANTIES OR GUARANTEES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE OR THE SERVICE AND SPECIFICALLY DISCLAIMS
ALL SUCH WARRANTIES INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
WITHOUT LIMITING THE PREVIOUS DISCLAIMER, HEARTLAND DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT:
(A) THE USE OF THE SOFTWARE WILL NOT CAUSE ANY DAMAGE TO YOUR DEVICE OR TO ANY OTHER SERVICES OR SOFTWARE PROVIDED TO YOUR DEVICE OR APPLICATIONS AND CONTENT THAT RESIDE ON YOUR DEVICE;
(B) THE SOFTWARE (i) WILL OPERATE IN AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE MANNER, (ii) WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS, OR
ERRORS, OR (iii) WILL BE IMMUNE FROM UNAUTHORIZED ACCESS; OR (C) THE CONTENT YOU RECEIVE THROUGH THE SOFTWARE WILL BE FREE FROM TECHNICAL INACCURACIES OR ERRORS,
OR THAT ANY CONTENT, INFORMATION OR DATA RECEIVED ON OR THROUGH THE SOFTWARE WILL BE FREE OF ANY VIRUSES, WORMS, OR ANY OTHER DESTRUCTIVE PROPERTIES, OR THAT THE
SERVICE WILL NOT VIOLATE ANY LAWS OR CONTAIN ANY OBJECTIONABLE MATERIALS.
HEARTLAND DOES NOT GUARANTEE THAT YOUR COMMUNICATIONS WILL BE PRIVATE OR SECURE; IT IS ILLEGAL FOR UNAUTHORIZED PEOPLE TO INTERCEPT YOUR COMMUNICATIONS, BUT SUCH
INTERCEPTIONS CAN OCCUR. YOU ACKNOWLEDGE THAT THE USE OF THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK.
6.2 Disclaimer of Certain Damages. IN NO EVENT SHALL HEARTLAND BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF HEARTLAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL APPLY REGARDLESS OF THE
THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, NEGILIGENCE, PERSONAL INJURY, PRODUCTS LIABILITY, INTELLECTUAL PROPERTY INFRINGEMENT, OR
ANY OTHER THEORY REGARDLESS OF WHETHER OR NOT HEARTLAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS MEANS THAT YOU WILL NOT SEEK, AND HEREBY WAIVE,
ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM HEARTLAND. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY
OTHER PARTY TO THE EXTENT THAT HEARTLAND WOULD BE
REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM.
7. General Terms:
7.1 Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of the United States and the State of North
Carolina, without regard to the conflicts or choice of law rules thereof that would result in the application of any other jurisdiction's laws. With respect to any
disputes or claims not subject to arbitration, you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts
of North Carolina, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction
in the state and federal courts of North Carolina.
By using the Services in any way, you unconditionally consent and agree that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may
have against the Heartland Entities arising out of, relating to, or connected in any way with the website or the determination of the scope or applicability of this
agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with
the rules of JAMS; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act
(“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitration shall be held in Charlotte, North Carolina; (4) the arbitrator’s decision shall be controlled by the terms and conditions of
this Agreement and any of the other agreements referenced herein that the applicable user may have entered into in connection with the website; (5) the arbitrator shall apply
North Carolina law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) there shall be no authority
for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable Heartland Entity’s individual claims; the
arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) the arbitrator shall not have the power to award punitive
damages against you or any Company Entity; (8) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Heartland Entity
exceed $125 USD, and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, Heartland agrees to pay them and/or
forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive
as compared to the costs of litigation, Heartland will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to
prevent the arbitration from being cost-prohibitive; and (9) with the exception of subpart (6) above, if any part of this arbitration provision is deemed to be invalid,
unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in
accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (6) is found to be invalid,
unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Company shall be entitled to arbitrate their dispute.
For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.
7.2 Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this
declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in
any other situation, and under such circumstances, the balance of this Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid or
unenforcable provision were not contained herein.
7.4 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
7.5 No Waiver. The failure by Heartland to enforce any rights granted or restrictions imposed hereunder or to take action against a user in the event of any breach hereunder
shall not be deemed a waiver by Heartland as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Heartland's failure to exercise or enforce
any right or provision of this paragraph shall not operate as a
waiver of such right or provision.
7.6 Amendment. Heartland reserves the right, in its sole discretion, to amend this Agreement from time to time. If there is a conflict between this Agreement and the most current
version of this Agreement, the most current version will prevail. Failure to accept amendments made to this Agreement may cause your license to the Software to be immediately and
Last Updated: August 30, 2017
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