This is the Software License Agreement of CHARGE Anywhere, LLC (“CHARGE Anywhere”) that governs your use of the CHARGE Anywhere software and materials (“Software”). The Software is licensed, not sold, and is available for use only under the terms of this license agreement. Please read this agreement carefully. By downloading, installing, copying, or otherwise using the Software, you (also referred to in this agreement as the “Licensee”) agree to be bound by the terms and conditions of this agreement and become a party to this agreement. If you do not agree with all of the terms and conditions of this agreement, do not download, install, copy or otherwise use the Software.
The term “Software“ shall also include any modified versions or updates of the Software licensed to you and any documentation provided to you or to which you are given access by CHARGE Anywhere. You may install and use a modified version, update, or upgrade of the Software only if you have a validly licensed full version of the Software being modified, updated, or upgraded. If you download, install, copy, or otherwise use a modified, updated, or upgraded version of the Software, then this agreement terminates as to the previous version of the Software, and you have a license only to such modified, updated, or upgraded version of the Software under the terms of this agreement.
LICENSE GRANT. Subject to the terms and conditions of this agreement, CHARGE Anywhere grants Licensee a non-exclusive and non-transferable license only to install (or download) and use for personal or internal business purposes one copy of the Software on a single point of sale (“POS”) terminal, personal digital assistant (“PDA”), cell phone or computer (collectively “Device”). A single license for the Software does not allow Licensee to share the Software through a computer network or otherwise or use it concurrently on different Devices or for anyone other than the Licensee to access, install, download, copy or otherwise use the Software.
ACTIVATION. CHARGE Anywhere has included features in the Software to prevent unlicensed use of the Software. You agree that CHARGE Anywhere may do so and that CHARGE Anywhere may use such features to deactivate any unlicensed user without notice. Use of the Software requires that Licensee activate the Software through the Internet as described during the installation set up of the Software. You may be required to reactivate the Software if you modify your Device.
PRODUCT ASSURANCE AND SUPPORT. Licensees may purchase a one year CHARGE Anywhere Software Product Assurance Plan (“Assurance Plan”) for an additional fee (the “Assurance Plan Fee”) for up to 90 days after the date of the original Software License Agreement. The Assurance Plan will entitle the Licensee, at no additional charge, to receive future version upgrades of the Software, Software patches and unlimited remote training and technical support for 1 year after payment of the Assurance Plan Fee. CHARGE Anywhere provides Software customer support through its 1-800 number as outlined at www.chargeanywhere.com. Support beyond that available online or provided through CHARGE Anywhere’s 1-800 number will be billed separately in accordance with CHARGE Anywhere’s then-current fee schedule. Licensees that do not purchase the Assurance Plan must enter into a new Software License Agreement to obtain future version upgrades and will be billed for training and technical support in accordance with CHARGE Anywhere’s then-current fee schedule. The initial term of the Assurance Plan will commence on the date the Assurance Plan is purchased and continue for one year. At the end of such one year period, the Assurance Plan will automatically renew (unless terminated by the Licensee as provided below) and the Licensee will automatically be charged the Assurance Plan Fee. Such renewals shall automatically occur on each 1 year anniversary thereafter. CHARGE Anywhere will provide electronic notice 60 and 30 days prior to any automatic renewals, and Licensee may opt to terminate the Assurance Plan upon at least 20 days written notice to CHARGE Anywhere prior to the end of each 1 year term. At any time and from time to time after the first annual renewal, CHARGE Anywhere reserves the right to increase the Assurance Plan Fee upon 90 days written notice.
NOTIFICATIONS. The Software contains a component that will automatically activate your Internet browser and attempt to initiate a connection through the Internet to a website maintained by CHARGE Anywhere that contains notification information related to the Software. This connection will be made using the Internet connections and telephone lines under your control. From time to time, you may receive notices about the Software or other information through this Internet connection. By installing the Software on your Device, you hereby consent to have the Software initiate a connection through the Internet to CHARGE Anywhere website, to use your resources to connect to such website, and to receive notices about the Software and other information through this Internet connection.
RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, Licensee may not: (i) reproduce or copy any of the Software; (ii) modify or create any derivative works of the Software, including translation or localization; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software; (iv) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (vi) provide service bureau services using the Software or otherwise use the Software to process data or information supplied by a third party for the benefit of such third party without CHARGE Anywhere’s prior express written consent, which may be given in CHARGE Anywhere’s sole discretion; or (vii) copy the printed materials accompanying the Software. Any changes to, modifications to, or derivative works of the Software shall become the exclusive property of CHARGE Anywhere.
TERMINATION. Without prejudice to any other rights, CHARGE Anywhere may terminate this agreement if Licensee breaches any of its terms and conditions. Upon termination, Licensee shall immediately destroy all copies of the Software and confirm such destruction to CHARGE Anywhere upon request. Upon termination, CHARGE Anywhere may deactivate Licensee without notice.
PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Software shall remain in CHARGE Anywhere and/or its suppliers or licensors. Licensee acknowledges such ownership and intellectual property rights and will not take any action to challenge, jeopardize, limit or interfere in any manner with CHARGE Anywhere’s or its suppliers’ or licensors’ ownership of rights with respect to the Software. The Software is protected by copyright and other intellectual property laws and by international treaties.
CARDHOLDER INDUSTRY COMPLIANCE. The Software provided with this Agreement fully conforms to Payment Card Industry (PCI) Payment Application Data Security Standard (“PA DSS”) guidelines. Details of the PA DSS guidelines are available at our website at www.chargeanywhere.com. You may have a direct obligation as a merchant to demonstrate compliance with the data security programs operated by the Card Associations. To properly utilize the Software in a secure environment, you must follow the latest procedures and policies as outlined in the CHARGE Anywhere Client Implementation Guide available on our website. Failure to properly follow the procedures outlined in this software license agreement and CHARGE Anywhere Client Implementation Guide could result in non compliance with PCI requirements. If you are using the Software as a component of a larger payment acceptance system such as an electronic cash register, website or order entry system, you may need to assess the compliance of each component of your payment acceptance system because your data security obligations as a merchant extend to the payment acceptance system in its entirety. CHARGE Anywhere’s compliance with Card Association regulations and guidelines covers only its own products, not your entire payment acceptance system.
DISCLAIMER OF WARRANTY. THE SOFTWARE (INCLUDING WITHOUT LIMITATION THE RELATED DOCUMENTATION) IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS BORNE BY LICENSEE. SHOULD THE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT CHARGE ANYWHERE OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CHARGE ANYWHERE OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, CHARGE ANYWHERE AND ITS SUPPLIERS’ AND LICENSORS’ ENTIRE LIABILITY TO LICENSEE (IN CONTRACT, TORT OR OTHERWISE)SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF CHARGE ANYWHERE TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE TO YOU.
EXPORT CONTROL. Licensee agrees to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Software in violation of any such restrictions, laws or regulations, or without all necessary approvals.
U.S. GOVERNMENT END USERS. This Section applies to all acquisitions of the Software by or for the Federal government or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the Federal government. By accepting delivery of the Software, the government hereby agrees that the Software qualifies as “commercial” computer software within the meaning of the acquisition regulation(s) applicable to the procurement. The terms and conditions of this agreement shall pertain to the government’s use and disclosure of the Software and shall supersede any conflicting contractual terms or conditions. If this agreement fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the Software, unused, to CHARGE Anywhere. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights— Use, duplication, and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
GENERAL. This agreement constitutes the entire agreement between the parties concerning the subject matter hereof. This agreement may be amended only by a writing signed by both parties. Except to the extent applicable law, if any, provides otherwise, this agreement shall be governed by the laws of the State of New Jersey, United States of America, excluding its conflict of law provisions. Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in New Jersey, under the auspices of a single arbitrator pursuant to the commercial arbitration rules of the American Arbitration Association then in effect, with the losing party paying all costs of arbitration. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any provision in this agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this agreement if no such modification is possible, and other provisions of this agreement shall remain in full force and effect. A waiver by either party of any term or condition of this agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. The provisions of this agreement that require or contemplate performance after the expiration or termination of this agreement shall be enforceable notwithstanding such expiration or termination. Licensee may not assign or otherwise transfer by operation of law or otherwise this agreement or any rights or obligations herein except to an acquirer of Licensee’s business in the case of a merger or the sale of all or substantially all of Licensee’s assets to such acquirer. This agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. The relationship between CHARGE Anywhere and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind CHARGE Anywhere in any way. If any dispute arises under this agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith. The headings to the sections of this agreement are used for convenience only and shall have no substantive meaning. CHARGE Anywhere may use Licensee’s name in any customer reference list or in any press release issued by CHARGE Anywhere regarding the licensing of the Software.
IMPLEMENTATION. The user of the Software is responsible for obtaining and maintaining their own merchant account. The user is responsible for all fees associated with such account. Merchant account information, including, but not limited to, a merchant id and terminal id is required for installation and implementation of the Software. The users holds full responsibility for obtaining such information. The lack of such information does not qualify the user for a return or a refund on purchased Software and other CHARGE Anywhere products.
SERVICES. CHARGE Anywhere provides payment gateway services that are required for the Software to operate. User is responsible for all the fees associated with such services. The failure to pay the above fees will cause the discontinuation of gateway services, without notice, which will cause the software application to stop working. CHARGE Anywhere will not be held responsible with any loss associated with the discontinuation of services.
TERM. CHARGE Anywhere will provide the customer the right to use its payments software for an eighteen month term at the time the software is downloaded. If the contract is terminated by the user, for any reason, prior to the completion of the 18 month initial term, the user will be liable for payment for the point of sale software for the entire eighteen month contract. Such contractual term and obligation is agreed to by the user when they select the agree checkbox in the Terms and Conditions section prior to placing their order on the Internet.
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