CubePay
End-User License Agreement (EULA)
Empyrean Merchant Services Inc.
Enactment Date: June 2023
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 CubePay Software (hereinafter referred to as this “CubePay”). 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 CubePay, this Agreement will also govern that trial. By clicking “accept” or installing and/or using the CubePay, you are confirming your acceptance of the CubePay 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 CubePay Software, and you must not accept this Agreement.
This Agreement shall apply only to the CubePay 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 CubePay 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 CubePay (for example a PC, laptop, mobile or tablet) under your control. You are responsible for ensuring your device meets the minimum requirements of the CubePay Software.
You are not permitted to:
Edit, alter, modify, adapt, translate or otherwise change the whole or any part of the CubePay Software nor permit the whole or any part of the CubePay to be combined with or become incorporated in any other software, nor decompile, disassemble or reverse engineer the CubePay Software or attempt to do any such things
Reproduce, copy, distribute, resell or otherwise use the CubePay for any commercial purpose
Allow any third party to use the CubePay on behalf of or for the benefit of any third party
Use the CubePay in any way which breaches any applicable local, national or international law
Use the CubePay for any purpose that Empyrean Merchant Services considers is a breach of this Agreement
Intellectual Property and Ownership
Empyrean Merchant Services shall at all times retain ownership of the CubePay as originally downloaded by you and all subsequent downloads of the CubePay by you. The CubePay Software (and the copyright, and other intellectual property rights of whatever nature in the CubePay 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 CubePay to third parties.
Compliance with privacy laws
(Please refer to our Privacy Policy for full information on how we are handling private data)
Empyrean Merchant Services will only process your Data and Personal Information on your behalf, and as your Service Provider and not collect, retain, use, or disclose that data for any purpose other than to perform Empyrean Merchant Services’s obligations under this Agreement, as permitted under CCPA and other applicable privacy and data protection laws (collectively, “Privacy Laws”). In no event will Empyrean Merchant Services “sell” (as defined by Privacy Laws) any such personal information.
Empyrean Merchant Services will not collect, use, retain, disclose, sell, or otherwise make your Data or Personal Information available for Empyrean Merchant Services’s own commercial purposes or in a way that does not comply with the CCPA or other Privacy Laws.
Empyrean Merchant Services will limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to provide the Services set forth in the Agreement or another compatible operational purpose.
Data subject rights – assistance with requests
(Please refer to our Privacy Policy for full information on how we are handling private data)
Empyrean Merchant Services will reasonably cooperate and assist you with meeting your CCPA and Privacy Law compliance obligations and respond to CCPA-related inquiries, including responding to verifiable consumer requests, taking into account, the nature of Empyrean Merchant Services’s processing, and the information available to Empyrean Merchant Services. Empyrean Merchant Services will make available to you, in a manner consistent with the functionality of the Service and Empyrean Merchant Services’s role as a Service Provider of Personal Information of data subjects, the ability to fulfill data subject requests to exercise their rights under Privacy Laws.
If Empyrean Merchant Services receives a request from your data subject (your customer) to exercise one or more of its rights under Privacy Laws in connection with the Services, Empyrean Merchant Services will redirect the data subject to make its request directly to you. You will be responsible for responding to any such request including, where possible, by using the f unctionality of the Services. Empyrean Merchant Services shall comply with reasonable requests by you to assist with your response to such a data subject request.
Empyrean Merchant Services will notify you immediately if it receives any complaint, notice, or communication that directly or indirectly relates either party’s compliance with Privacy Laws relating to provisioning of the Services.
Termination
This Agreement is effective from the date you first use the CubePay 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 CubePay. 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 CubePay and supersedes any prior agreements between you and Empyrean Merchant Services relating to the use of the CubePay. 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.