This End-User License Agreement (Agreement) is between the business or individual accepting this Agreement (this business or individual being You or you) and BluePenguin Payments Corp. and any of its successors and/or assigns (BluePenguin, we, our or occasionally us). This Agreement is solely between you and us, and governs your use of the Application Programming Interface (API) along with its associated documentation, proprietary, or intellectual property (collectively, the Services). Review this Agreement completely. You agree to be bound by the terms of this Agreement when you use the Services, and any use of the Services implies your consent. If you do not agree to the terms of this Agreement, your sole recourse is not to use the Services.

Grant of License

BluePenguin grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term (defined below) of this Agreement to use the Services solely for Your internal business purposes; or, if you are an integration partner as defined by our then-current policies, for mutual customers of both of our choosing.

You will not otherwise distribute, lease, rent, host, sublicense, transfer, sell, export, modify, reverse engineer, decompile, copy, benchmark, create derivative works from, or attempt to derive the source code for the Services. This license does not grant you any rights to BluePenguin’s (or any other third party’s) trademarks, service marks, logos, trade dress, proprietary, or other intellectual property unless provided with the Services. BluePenguin reserves to itself (or applicable third parties) all right, title, interest, and license (express or implied) to the Services that are not specifically granted to You under this Agreement. You will preserve and display any proprietary notices, markings, or branding associated with use of the Services.

From time to time, we may change or update the Services. You may be required to accept these updates to continue using the Services. We may perform maintenance on the Services, which may result in service interruptions. We may choose not to support older versions of the Services. You are solely responsible for obtaining all equipment, tools and services necessary to access and use the Services, and to update any integrations to the Services at your own expense.

Term

This Agreement commences when you accept or otherwise download, install, copy, or use the Services; and will continue until terminated (this period of time is the Agreement’s Term).

Suspension and Termination

BluePenguin may suspend or terminate Your use of the Services if: (1) you violate this Agreement’s terms; (2) we believe your use of the Services may damage our reputation or intellectual property rights; (3) we suspend or terminate our agreement(s) with any third party involved in providing the Services; (4) you exceed normal and reasonable usage for the Services; (5) you experience a bankruptcy or insolvency event; (6) you are using the Services for any fraudulent, illegal, or unauthorized purpose, or engage in willful misconduct with respect to use of the Services; or (7) any other reason set forth in any separate commercial agreement between you and us.

You may terminate this Agreement at any time and for any reason by ceasing to use the Services, notwithstanding any termination limitations set forth in any separate commercial agreement between us. You agree that upon any termination, regardless of reason, you will cease using the Services and promptly return or destroy any materials provided to you by BluePenguin.

Confidentiality, Data, and Ideas

Neither of us will disclose non-public information about the other’s business; including, without limitation, technical specifications (whether related to the Services or otherwise), customer lists, or information relating to a party’s operational, strategic, or financial matters (together, Confidential Information). Confidential Information does not include information that (1) is or subsequently becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the discloser’s Confidential Information; or (4) is received from a third party that is not obligated to keep it confidential. Each of us will implement and maintain reasonable safeguards to protect the other’s Confidential Information.

Neither of us may disclose the other’s Confidential Information except (1) to our respective directors, officers, employees, or representatives that need to know it in order to perform our obligations under this Agreement; (2) in response to a subpoena or court order; or (3) as required by applicable law, rule, or regulation.

BluePenguin may use data or information obtained through the Services to provide our services, for research and development, or in aggregated and anonymized form to provide services generally; all subject to applicable Laws (defined below). Information we collect about You or your customers is subject to our general terms of service, accessible at https://www.bluepenguin.com/terms.

You may provide, or we may invite you to provide, comments or ideas about the Services, including, without limitation, improvements to them (Ideas). By submitting any Ideas, you agree that (1) they are not Confidential Information; (2) they are not subject to any use or disclosure restrictions (express or implied); (3) you claim no rights in them; and (4) we have no obligation to notify or compensate you in connection with their disclosure or use. You release BluePenguin from all liability or obligations that may arise from the receipt, review, disclosure, or use of any Idea that you submit.

Account

You may be required to register for an account with BluePenguin to use the Services. If so required, you will provide us with accurate information when setting up your account, and will maintain your account with current information. You will be responsible for establishing safeguards designed to prevent unauthorized access to, disclosure, use, or alteration of your account (safeguards may include, without limitation, user names, passwords, security questions and answers, or other credentials). You must notify us if you discover a security breach involving your account or the Services. You are responsible for any unauthorized access to, disclosure, use, or alteration of your account, the Services, or other transaction information that arises through your systems or account. 

Services Provided As-Is; Indemnification

The Services are provided to you “as-is” and “as-available.” You are solely responsible for determining if the Services meet your needs. BluePenguin disclaims all warranties (express or implied) related to the Services; including, without limitation, warranties of security, merchantability, fitness for a particular purpose, non-infringement, accuracy, and uninterrupted or error-free operation. We are not responsible for any disclosures, modifications, deletions, or other errors that arise in connection with your use of the Services due to its interaction with other applications or their content.

You will indemnify BluePenguin, its directors, officers, employees, agents, subsidiaries, and affiliates against any third party claims for losses, damages, costs, or expenses (including reasonable attorneys’ fees) (together, Losses) that result from your use or misuse of the Services, or your breach of this Agreement. We may assume the defense of any third party claims that you must indemnify it for (at your expense), and you will cooperate with the defense of these claims. You will not settle any third party claims involving more than the payment of money without our written consent.

To the extent permitted by applicable law, BluePenguin will not be liable to you for any lost profits, revenues, or business opportunities, nor any exemplary, punitive, special, indirect, incidental, or consequential damages; regardless of whether these damages were foreseeable or either of us was advised they were possible.

Our total, aggregate liability to you for all Losses arising from any cause (regardless of the form of action or legal theory) in connection with this Agreement will not exceed the amount of fees (if any) you’ve paid to us for use of the Services during the 3 months prior to a Loss, or one hundred U.S. Dollars, whichever is less.

General

You represent and warrant that you have authority to enter into this Agreement, creating performance obligations that are legally enforceable against you.

We may modify this Agreement from time to time and will endeavor to provide you with reasonable notice when these modifications occur. Your continued use of the Services indicates your acceptance of any modifications to this Agreement. You must stop using the Services if you do not agree to any modifications that are made to this Agreement.

Each of us will comply with the laws, rules, and regulations (together, Laws) that apply to our respective performance under this Agreement; including, without limitation, laws related to the collection and use of consumer information obtained via the Services. You will follow the requirements of all user documentation provided for the Services.

This Agreement is governed by Florida law, without regard to its conflicts or choice of law statutes. You irrevocably waive your rights to a trial by jury in connection with this Agreement.

Unless a separate commercial agreement exists between us, this is the entire agreement between us, and supersedes any prior agreements related to its subject matter. Any sections or terms of this Agreement that are, or become, invalid or unenforceable will be severed; and the remaining terms will continue in effect. BluePenguin is not waiving any of its rights under this Agreement if it delays their exercise or fails to exercise them. We are independent contractors. This Agreement does not create an agency, partnership, or joint venture of any kind.

You may not assign this Agreement without BluePenguin’s written consent, which assignment is voidable by us; however, we may assign this Agreement without notice to you or your consent.

Contact Us

If you have any questions about this Agreement, please contact us at BluePenguin Payments Corp., 12540 Broadwell Road Suite 2201, Alpharetta GA 30004 USA or integrator@bluepenguin.com.