Empyrean Payments

End-User License Agreement (EULA)

Empyrean Merchant Services Inc.

Enactment Date: June 2021

IMPORTANT: This agreement is the end-user software licensing agreement (hereinafter referred to as this "Agreement") between you (an individual, company, or any other entity) and Empyrean Merchant Services Inc (hereinafter referred to as “Empyrean Merchant Services") for the use of Empyrean Payments Software. Please read this Agreement carefully before you use this Software. Your use of this Software will be deemed as your acceptance of the constraints mentioned in this Agreement. Otherwise, please do not use any parts of this software. vYou may access a copy of this Agreement at any time by visiting https://payments.empyreanms.com/home/eula and retain a copy of this Agreement for future reference.

If you register for a free trial of the Empyrean Payments Software, this Agreement will also govern that trial. By clicking "accept" or installing and/or using the Empyrean Payments Software, you are confirming your acceptance of the Empyrean Payments Software and agreeing to become bound by the terms of this Agreement.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority or if you do not agree with the terms and conditions of this Agreement, do not install or use the Empyrean Payments Software, and you must not accept this Agreement.

This Agreement shall apply only to the Empyrean Payments Software supplied by Empyrean Merchant Services herewith regardless of whether other software is referred to or described herein. The terms also apply to any Empyrean Merchant Services updates, supplements, Internet-based services, and support services for the Empyrean Payments Software, unless other terms accompany those items on delivery. If so, those terms apply.

License Grant

Empyrean Merchant Services hereby grants you a nonexclusive, nontransferable, revocable licence to use the Empyrean Payments Software on your devices in accordance with the terms of this Agreement.

You are permitted to load the Empyrean Payments Software (for example a PC, laptop, mobile or tablet) under your control. You are responsible for ensuring your device meets the minimum requirements of the Empyrean Payments Software.

You are not permitted to:

Intellectual Property and Ownership

Empyrean Merchant Services shall at all times retain ownership of the Empyrean Payments Software as originally downloaded by you and all subsequent downloads of the Empyrean Payments Software by you. The Empyrean Payments Software (and the copyright, and other intellectual property rights of whatever nature in the Empyrean Payments Software, including any modifications made thereto) are and shall remain the property of Empyrean Merchant Services.

Empyrean Merchant Services reserves the right to grant licences to use the Empyrean Payments Software to third parties.

Termination

This Agreement is effective from the date you first use the Empyrean Payments Software and shall continue until terminated. You may terminate it at any time upon written notice to Empyrean Merchant Services.

It will also terminate immediately if you fail to comply with any term of this Agreement. Upon such termination, the licenses granted by this Agreement will immediately terminate and you agree to stop all access and use of the Empyrean Payments Software. The provisions that by their nature continue and survive will survive any termination of this Agreement.

Disclaimer of Warranties

YOU ACKNOWLEDGE THAT EMPYREAN PAYMENTS SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NEITHER EMPYREAN MERCHANT SERVICES, ITS LICENSORS OR AFFILIATES NOR THE COPYRIGHT HOLDERS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THERE IS NO WARRANTY BY EMPYREAN MERCHANT SERVICES OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE EMPYREAN PAYMENTS SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE EMPYREAN PAYMENTS SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE EMPYREAN PAYMENTS SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM IT.

INSTALLING THIS SOFTWARE MAY AFFECT THE AVAILABILITY OF THIRD-PARTY SOFTWARE, APPS, OR SERVICES. THERE IS NO WARRANTY BY EMPYREAN MERCHANT SERVICES THAT THE FEATURES OR SERVICES CONTAINED IN THIS SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THIS SOFTWARE AND ITS SERVICES WILL BE FREE FROM ERRORS/BUGS, OR THAT THIS SOFTWARE WILL PROVIDE CONTINUOUS, PERMANENT SERVICES. IN ADDITION, EMPYREAN MERCHANT SERVICES MAKES NO WARRANTY THAT THIS SOFTWARE WILL BE COMPATIBLE WITH ANY THIRD-PARTY SOFTWARE OR SERVICES.

YOU FURTHER ACKNOWLEDGE THAT THE EMPYREAN MERCHANT SERVICES SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA, OR INFORMATION PROVIDED BY THE EMPYREAN MERCHANT SERVICES SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING BUT NOT LIMITED TO THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.

Limitation of Liability

EMPYREAN MERCHANT SERVICES WILL NOT TAKE ANY RESPONSIBILITY FOR SOFTWARE USE PROBLEMS CAUSED BY ABUSE, MISUSE, OR UNAUTHORIZED MODIFICATION.

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EMPYREAN MERCHANT SERVICES, ITS EMPLOYEES, LICENSORS, OR AFFILIATES BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE EMPYREAN PAYMENTS SOFTWARE, EVEN IF EMPYREAN MERCHANT SERVICES OR ITS LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.

IN NO EVENT SHALL EMPYREAN MERCHANT SERVICES TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING DEATH OR PERSONAL INJURY RESULTING FROM EMPYREAN MERCHANT SERVICES NEGLIGENCE) EXCEED THE AMOUNT YOU PAID FOR YOUR EMPYREAN MERCHANT SERVICES SOFTWARE.

The laws of some countries/regions do not allow the exclusion or limitation of certain warranties, guarantees or liabilities. If such laws apply to you, all or part of the exclusions or limitations described herein may not apply to you and you may have additional rights. Nothing in this Agreement affects your legal rights that you are always entitled to as a consumer and which you cannot contractually agree to alter or waive.

Entire Agreement

This Agreement constitutes the entire agreement between you and Empyrean Merchant Services governing your use of the Empyrean Payments Software and supersedes any prior agreements between you and Empyrean Merchant Services relating to the use of the Empyrean Payments Software. You may also be subject to additional terms and conditions that may apply when you use or purchase open source software, third-party content, or other Empyrean Merchant Services services.

Governing Law

This Agreement, and any dispute arising out of or in connection with this Agreement, shall be governed by and construed in accordance with the laws of Ontario, Canada.