Hardware Sales Agreement

Hardware Sales Agreement 

THIS HARDWARE SALES AGREEMENT SHALL GOVERN ANY PURCHASE OF A HARDWARE PRODUCT BY CUSTOMER, AND ANY SALE AND/OR DELIVERY OF A HARDWARE PRODUCT BY CYBERSOURCE.   

THIS HARDWARE SALES AGREEMENT SHALL NOT APPLY AND DOES NOT GOVERN ANY SALE AND/OR DELIVERY OF SOFTWARE PRODUCT OR SERVICE BY CYBERSOURCE. ANY SALE AND/OR DELIVERY OF SOFTWARE PRODUCT OR SERVICE TO CUSTOMER SHALL BE GOVERNED BY A SEPARATE CONTRACT BETWEEN CYBERSOURCE AND CUSTOMER (OR BETWEEN CYBERSOURCE AND A THIRD PARTY OF WHICH CUSTOMER IS A BENEFICIARY). 

PLEASE READ THIS HARDWARE SALES AGREEMENT CAREFULLY. BY PURCHASING A HARDWARE PRODUCT ON THE CYBERSOURCE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE LEGALLY BOUND BY ITS TERMS AND CONDITIONS.  

IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THIS SALES AGREEMENT.   

1) Definitions 

  1. “Agreement” means this Hardware Sales Agreement. 
  2. “Customer” means a party who purchases or otherwise receives a Hardware Product from Cybersource and/or a designed Distributor. 
  3. “Cybersource” means Cybersource Corporation 900 Metro Center Boulevard, Foster City, California, USA and all its affiliates.  
  4. “Debug Device” refers to a terminal that cannot process live transactions. These devices are for demonstration and/or development and/or testing use only. Debug devices are intended for software development uses but can also use PAX approved software.  If you have any questions about the differences between device types, you may reach out to Cybersource support.  Purchase of an incorrect terminal will not be refunded. 
  5. “Distributor” means the entity authorized/indicated by Cybersource to dispatch the Hardware Product. 
  6. “Hardware Product” means a payment terminal, card reader, and any other hardware product sold or delivered by Cybersource or a designed third party, and any software loaded onto a Hardware Product before it is received by Customer. For the avoidance of doubt, Hardware Products do not include Software Products or Services. 
  7. “Manufacturer” means the manufacturer of a Hardware Product. 
  8. “Manufacturer’s Warranty” means the warranty of a Hardware Product provided by the Manufacturer of that product. 
  9. “Service” means the performance of tasks, the provision of advice or assistance, or the provision of access to resources or information by Cybersource. 
  10. “Software Product” means computer software programs sold or delivered by Cybersource, whether pre-loaded or provided separately, and related licensed materials. 
  11. “Test Device” refers to a terminal that cannot process live transactions. These devices are for demonstration and/or testing use only.  Only PAX approved software can be downloaded on this device; it is not suitable for software development purposes.  Test Devices have all necessary software pre-loaded – no Cybersource specific software is needed. If have any questions about the differences between device types, you may reach out to Cybersource support.  Purchase of an incorrect terminal will not be refunded. 
  12. “Website” means https://shop-hardware.cybersource.com/. 

2) General Terms 

  1. This Hardware Sales Agreement shall govern any purchase of a Hardware Product by Customer, and any sale, delivery and/or facilitation of a Hardware Product by Cybersource. 
  2. By purchasing a Hardware Product on the Website, you acknowledge that you have read this Hardware Sales Agreement, understand it, agree to be legally bound by its terms and conditions. You also agree that you have read, understand, and agree to be legally bound by the Website terms & conditions that are available on the Website. 
  3. If you are accepting these terms on behalf of another person or a company or other legal entity, you represent and warrant that you have full authority to bind that person, company, or legal entity to this Hardware Sales Agreement. 
  4. This Hardware Sales Agreement is the sole and complete agreement between Customer and Cybersource regarding the purchase and sale of any Hardware Product. Any additional or different terms, including without limitation those discussed between the parties or listed in any order or communication from Customer, shall not be binding on Cybersource unless signed by an authorized representative of Cybersource. 
  5. Cybersource may update this Hardware Sales Agreement or any part thereof at any time without prior notice.   

3) Software and Services Sales 

  1. Software Products or Services cannot be purchased on the Website. Customer must contact Cybersource to purchase Software Products or Services. 
  2. This Hardware Sales Agreement shall not apply and does not govern any sale and/or delivery of Software Products or Services by Cybersource, other than software loaded onto a Hardware Product before it is received by Customer. 
  3. Any sale and/or delivery of Software Products or Services to Customer shall be governed by a separate contract between Cybersource and Customer (or between Cybersource and a third party of which Customer is a beneficiary). 
  4. In regard to live terminals, it is the responsibility of the Customer to know and understand with which terminals (and the terminals associated software) their account is approved to process transactions. Purchase of an incorrect terminal will not be refunded.   

4) Conditions of Sale 

  1. As condition to the sale and delivery of a Hardware Product by Cybersource (or its distributor), Customer hereby warrants and agrees that: 
    i) Customer is a company or business entity, and is not an individual person; 
    ii) Customer is purchasing the Hardware Product for its own business purposes;  
    iii) The Hardware Product purchased and sold under this Hardware Sales Agreement is not a “Consumer Good” as that term is defined by the Charter of Fundamental Rights of the European Union or any other law that governs this contract;  

5) Visual Accuracy 

  1. Cybersource shall not be liable for any error or inaccuracy in the photographs or other representations of products displayed on the Website. 
  2. If you have any questions about the products, please contact Cybersource’s support at terminalfulfillment@visa.com before placing an order for Hardware Products. 

6) Prices and Payment 

  1. The pricings for all products on the Website are listed in US Dollars and/or Euros and/or pounds and, unless otherwise indicated, exclude any taxes, shipping and handling costs. 
  2. Cybersource reserves the right to modify the prices of Hardware Products offered on the Website at any time without the necessity of a prior notice to Customer. 
  3. Customer will be charged the prices displayed on the Website at the time Customer’s order was confirmed, provided the goods ordered were available at this time and the order, order details, and shipment information were correctly shared by Customer with one of the authorized Distributors, however, Cybersource reserves the right not to accept or to cancel any order in its sole discretion for any reason and without liability, including if the products are not available, are incorrectly priced or are otherwise incorrectly described. 
  4. Payment is due at the time an order is placed. Any amounts not received by Cybersource within thirty (30) days of receipt of invoice shall be overdue. Customer shall pay a late payment fee of the lesser of one and one half (1.5%) percent per month or the maximum rate permitted by law on the undisputed overdue balance of the invoice amount. 
  5. Customer shall pay any applicable sales, use or similar taxes, shipment costs, fees or duties. Customer is responsible for taxes, if any, on the Hardware Product from the date Cybersource (or its distributor) ships them to Customer. No other discounts, quantity entitlements, or promotions apply unless agreed in writing by Cybersource. 
  6. If Cybersource makes an error in pricing information and/or a typographic error within the Purchase Order to Cybersource and/or Distributor, Cybersource may nevertheless refuse or cancel an order placed for a Hardware Product quoted at such price or described in error, even if Cybersource has confirmed the receipt of Customer’s order or charged Customer’s credit or debit card. If Cybersource has charged Customer’s credit or debit card, Cybersource will issue a credit to Customer’s credit or debit card account in the amount of the charge. 

7) Title and Risk of Loss 

  1. All products ordered through the Website remain the property of Cybersource until full payment is tendered to Cybersource. In the event of a payment dispute, Customer is required to return the products that are the subject of dispute to Cybersource immediately upon request, and to assume the risks (in particular the risks of loss, theft, and damage) relating to such products. 
  2. Cybersource shall bear the risk of loss or damage to a Hardware Product until it is delivered to Cybersource’s designated carrier for shipment to Customer. Thereafter, Customer assumes risk of loss or damage of the Hardware Product. 

8) Records 

  1. The data collected by the Website establishes the terms of the transactions between Cybersource and Customer. 
  2. In the event of a dispute between Cybersource and Customer relating to a transaction entered into using the Website, and subject to Cybersource’s right to cancel or not accept an order, the data collected by Cybersource are the terms of the transaction. 

9) Warranties, Limitation of Liabilities 

  1. Cybersource hereby assigns the Manufacturer’s Warranty (if any) for the Hardware Product to Customer, to the extent such Manufacturer’s Warranty exists and is assignable. 
  2. THE MANUFACTURER’S WARRANTY (IF ANY, AND IF ASSIGNABLE) IS THE ONLY WARRANTY THAT SHALL BE PROVIDED BY CYBERSOURCE WITH RESPECT TO THE HARDWARE PRODUCT. 
  3. CYBERSOURCE MAKES NO WARRANTIES FOR THE HARDWARE PRODUCT. THE HARDWARE PRODUCT IS PROVIDED “AS IS,” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, TO THE FURTHEST EXTENT PERMITTED BY LAW, EXCEPT TO THE EXTENT (IF ANY) THAT A MANUFACTURER’S WARRANTY EXISTS AND IS ASSIGNABLE. 
  4. IN ANY ACTION UNDER OR RELATED TO THIS AGREEMENT, CYBERSOURCE SHALL NOT BE LIABLE TO CUSTOMER FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE: 1) THIRD-PARTY CLAIMS FOR DAMAGES; 2) LOSS OF, OR DAMAGE TO, DATA; 3) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES; OR 4) LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS. IN THE EVENT NOT ALLOWED BY LAW, THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO THIS AGREEMENT. EXCEPT FOR BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY. IN THE EVENT CYBERSOURCE IS DETERMINED BE LIABLE TO CUSTOMER, ITS LIABILITY SHALL BE LIMITED TO THE LESSER OF A); THE AMOUNT OF ACTUAL DIRECT DAMAGES SUFFERED BY CUSTOMER; OR B) THE AMOUNT CUSTOMER PAID CYBERSOURCE FOR THE HARDWARE PRODUCT. 

10) Return of Hardware Product Covered by Manufacturers Warranty 

  1. In the event a Hardware Product covered by a Manufacturer’s Warranty fails to operate during the warranty period as result of a manufacturing defect, then the purchaser of the Hardware Product should contact the manufacturer directly for its repair or replacement in accordance with the Manufacturer’s Warranty. 
  2. Contact information for manufacturers of the Hardware Products is set forth below.  This is information is provided as-is and should be independently verified by Customer.  Cybersource neither makes any warranty or representation as to the completeness or accuracy of the information set forth below, nor assumes any liability that may result from reliance on such information.   
    • PAX Technologies, or one of its affiliates:
    • Verifone, or one of its affiliates: 
  3. Be aware that in-warranty repairs or replacements may take up to ninety (90) days or longer. For this reason, CUSTOMERS ARE STRONGLY ENCOURAGED TO PURCHASE EXTRA HARDWARE PRODUCT UNITS TO AVOID DOWNTIME DURING THE WARRANTY PROCESS. 
  4. For clarification, returns will not be accepted for any reason. . This shall apply to situations where the items were purchased mistakenly, due to its quantity, quality, usage, applicability, suitability, etc. Any exception will be made by the sole discretion of Cybersource.   

11) Customer Information 

  1. Cybersource and its affiliates may store, use and process contact information and other information about Customer, including name, phone numbers, addresses, and e-mail addresses, as necessary to perform under this Agreement, including but not limited to return service. 
  2. Customer information will be processed and used in connection with this Hardware Sales Agreement and the Hardware Product and may be transferred by Cybersource to any country where Cybersource does business; and may be provided to entities acting on Cybersource’s behalf in relation to this Hardware Sales Agreement and the Hardware Product. Cybersource may also disclose such information where required by law. 
  3. Records will be kept in accordance to GDPR and the Cybersource DPA (www.cybersource.com/en-us/about/dpa.html). If you prefer for your records to be deleted, please contact terminalfulfillment@visa.com.   

12) Force Majeure 

  1. CyberSource shall not be liable to Customer for any failure or delay in the performance of its obligations hereunder, to the extent such failure or delay is caused by fire, flood, earthquakes, other elements of nature; acts of war; terrorism, riots, civil disorders, rebellions or revolutions; epidemics, communication line or power failures; governmental laws, court orders or regulations; or any other cause beyond the reasonable control of CyberSource. 

13) No Export by CyberSource 

  1. Customer shall comply with the applicable export regulations. Please be aware that some software is geographically specific and may not function in areas where its use was not intended. 

14) Entire Agreement 

  1. This Hardware Sales Agreement constitutes the entire agreement and understanding between Customer and Cybersource concerning the purchase, sale, and/or delivery of any Hardware Product. 
  2. This Hardware Sales Agreement supersedes any prior or contemporaneous agreements, communications and proposals, whether oral or written, between Customer and Cybersource (including, but not limited to, any prior versions of this Hardware Sales Agreement). 

15) Governing Law 

  1. This Agreement and all transactions and disputes arising shall be governed by the laws of the state of California, without regard to its conflict of law principles. 
  2. Neither party may bring an action arising out of or related to this Agreement more than two (2) years after the cause of action arose. 

16) Dispute Resolution 

  1. Any dispute, claim or controversy arising out of or relating to this Hardware Sales Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California, USA, before one arbitrator; provided that, nothing in this arbitration provision or these terms & conditions shall preclude Cybersource for seeking injunctive relief to stop any unauthorized use of its intellectual property or Website. 
  2. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. 

17) Miscellaneous 

  1. If any provision of this Hardware Sales Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of shall remain in full force to the extent permitted by law. 
  2. No failure, forbearance, neglect or delay of any kind or to any extent on the part of Cybersource in connection with the enforcement or exercise of any rights under the use terms, the sale terms, the additional terms shall affect or diminish Cybersource’s ability to enforce such rights or any other rights under the use terms, the sale terms, the additional terms. 
  3. References to articles, sections and exhibits are to be construed as references to the articles or sections of the relevant portions of the use terms, sale terms, or additional terms, unless otherwise indicated, and terms such as “hereof,” “herein,” “hereunder” and other similar compounds of the word “here” shall mean and refer to this entire set of terms rather than any particular part of the same. The paragraph headings and captions are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting, the terms and in no way limit or affect any of the contents of the terms or its provisions. Whenever used, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders. The words "include" and "including" when used herein shall be deemed to be followed by the phrase "without limitation" unless such phrase otherwise appears. Any reference to products, goods, or merchandise shall refer to the items offered for sale on the website.