Please read the following Element Interface Specification License agreement and
click “I Accept” below to accept it.
Element Use Agreement and Specification License (“Agreement”)
This Agreement describes the terms on which Element Payment Services, Inc. (“EPS”)
offers parties (each a “User”) access to Element’s test and/or
production processing platforms (“Platform”) and a license to
the Element Interface Specification (the “Specification”) for
Users who wish to open a test account to evaluate the Specification or to use the
Specification to process transactions through EPS’s systems. For the purposes
of this Agreement, any underlying agreement between EPS and a User entered into
before or after User enters into this Agreement shall be referred to herein as the
“Underlying Agreement”. This Agreement does not modify or supersede
any terms of the Underlying Agreement, but rather is intended to apply only to User’s
access to and use of Specification and Platform to the extent such use is not governed
by an Underlying Agreement. To the extent that this Agreement is translated into
any other language, the parties agree that only the English-language version of
the Agreement will govern the relationship of the parties and will supersede any
2. Accepting the Terms.
By clicking “I ACCEPT” at the bottom of this Agreement and by using
the Specification and Platform the User is agreeing to accept and be bound by all
terms and conditions of this Agreement and is representing to EPS that the party
clicking “I ACCEPT” is authorized to bind the User to the terms and
conditions of this Agreement. Should you wish to decline these terms, please do
not click “I ACCEPT” and do not access the Specification and/or Platform.
EPS may add, remove or modify the terms of this Agreement at any time by posting
such changes at http://www.elementps.com/Resources/CreateaTestAccount/tabid/178/Default.aspx.
Any such changes shall become part of this Agreement and User’s continued
use of the Specification and/or Platform constitutes User’s acceptance of,
and agreement to, all such terms.
3. License Description.
Subject to the terms and conditions of this Agreement, EPS grants User a limited,
non-transferable, revocable, non-exclusive license to use the Specification for
the sole purpose set forth in Section 1, above. This license shall immediately terminate
upon User’s breach of this Agreement or upon the termination of this Agreement.
4. License and Use Restrictions
User agrees that it will not: (i) attempt to reverse engineer, decompile, disassemble
or otherwise translate or modify the Specification in any manner; (ii) sell, assign,
license, sublicense or otherwise transfer, transmit or convey the Specification,
or any copies or modifications thereof, or any interest therein, to any third party,
or (iii) use the Specification to develop, manufacture, modify or reproduce any
other product or service. EPS maintains
its own security testing and scanning routines, any competing procedures initiated
by customers or referral partners may interfere with EPS’s operations, therefore
User agrees that it will not undertake any security testing or scanning against
the Platform on behalf of itself or another party.
User understands and agrees that the Specification is and shall remain the sole
and exclusive property of EPS and that except as specifically set forth herein,
no right, property or interest in the Specification or any other intellectual property
made available to User through the Platform is intended to be given to or acquired
User understands and agrees that the Specification and means of access to the Platform,
along with any instructions and other documentation, is the confidential information
of EPS (“Confidential Information”). User agrees not to disclose any
Confidential Information to any third party other than as explicitly permitted pursuant
to the terms of an Underlying Agreement and to take at least reasonable security
efforts to otherwise protect the Confidential Information from disclosure to third
7. Notice and Contact Information
In order to gain access to the Specification and the Platform User must provide
EPS with contact information; this contact information must be complete and accurate.
Any notice under this Agreement will be provided to User at the e-mail provided with
the contact information. User may provide EPS with any notice required hereunder
via mail or delivery service at the physical address specified for EPS at the EPS
8. Disclaimer of Warranty.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EPS HEREBY DISCLAIMS ALL WARRANTIES
AND CONDITIONS WITH REGARD TO THE SPECIFICATION AND THE PLATFORM INCLUDING ALL WARRANTIES
AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON
INFRINGEMENT WHETHER EXPRESS, IMPLIED OR STATUTORY. EPS MAKES NO REPRESENTATIONS
ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE SPECIFICATION FOR ANY
THE SPECIFICATION AND PLATFORM ARE PROVIDED “AS IS” WITHOUT WARRANTY
OF ANY KIND. EPS DOES NOT REPRESENT OR WARRANT: (1) THAT EITHER OR BOTH OF THE SPECIFICATION
AND PLATFORM WILL MEET USER’S REQUIREMENTS, OR (2) THAT USER’S USE OF EITHER
OR BOTH OF THE SPECIFICATION AND PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE
OR FREE FROM ERROR. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES,
SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO USER IN ITS ENTIRETY.
9. Limitation of Liability.
IN NO EVENT SHALL EPS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SPECIFICATION
AND/OR PLATFORM UNDER ANY THEORY OF LIABILITY AND HOWEVER CAUSED. THIS EXCLUSION
OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO LOSS OF USE, DATA, OR PROFITS. THIS
LIMITATION OF LIABILITY SHALL APPLY WHETHER OR NOT EPS HAS BEEN ADVISED OF OR SHOULD
HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH LOSSES.
User agrees that its use of the Specification and/or Platform will comply with all
applicable government laws, rules and regulations and will comply with the rules
of Visa, MasterCard and other applicable financial service card or network organizations.
User agree to indemnify, defend and hold EPS, its parent company, subsidiaries, affiliates,
officers and employees harmless from any claim, demand or damages, including reasonable
attorney’s fees, asserted by any third party arising in connection with User’s
use of the Specification and/or the Platform or User’s breach of this Agreement.
This Agreement is effective unless and until terminated by either User or EPS. User
may terminate this Agreement at any time by providing EPS with written notification.
EPS may terminate this Agreement at any time upon notice to User, or at any time
with or without notice if User (i) breaches this Agreement, or (ii) if EPS is unable
to verify or authenticate any information provided by User. Upon termination of
the Agreement by either User or EPS, User shall immediately discontinue use of the
Specification and Platform.
This Agreement is personal to User, and may not be assigned. EPS may assign this
Agreement without restriction. This Agreement is governed by the laws of the State
of Arizona, U.S.A. User hereby irrevocably consents to the exclusive jurisdiction
and venue of the courts in Maricopa County, Arizona, U.S.A. for all disputes arising
out of or relating to this Agreement. Use of the Specification and/or Platform is
unauthorized in any jurisdiction that does not give effect to all provisions of
the terms and conditions of this Agreement. If any part of this Agreement is determined
to be invalid or unenforceable pursuant to applicable law including, but not limited
to, the warranty disclaimers and liability limitations set forth above, then the
invalid or unenforceable provision will be deemed superseded by a valid, enforceable
provision that most closely matches the intent of the original provision and the
remainder of the Agreement shall continue in effect. A printed version of this Agreement
and of any notice given in electronic form shall be admissible in judicial or administrative
proceedings based upon or relating to this Agreement to the same extent and subject
to the same conditions as other business documents and records originally generated
and maintained in printed form.