Last Updated August 16, 2024
2.1 You accept these Terms when you use any of the Etix Octave Services or click to accept these Terms (where this option is made available to you). Your acceptance of these Terms creates a contract between you and Etix Octave. You cannot use the Etix Octave Services if you do not accept the Terms. Use of the Etix Octave Services constitutes acceptance of these Terms. When you accept the Terms on behalf of your business, you represent to Etix Octave that you have the authority to use the Etix Octave Services and to bind the business to the Terms.
2.2 After you accept the Terms, Etix Octave will give you credentials to create a Etix Octave Account. You shall provide Etix Octave with accurate, current, and complete information about you and your business (“Account Information”) and update your Account Information promptly after any changes. Etix Octave may terminate your Etix Octave Account and your access to the Etix Octave Services if your Account Information is inaccurate or incomplete, in Etix Octave’s sole discretion). You may use the Etix Octave Account to connect to your Etix Octave webpage (“Etix Octave Dashboard”) via most internet browsers. You are responsible for any activity associated with your Etix Octave Account. At any time, Etix Octave may change the applications and their functionality that make up the Etix Octave Services.
2.3 The Etix Octave Services may provide you with access to the Etix Octave App Market and links to software applications that you may obtain from Etix Octave or third-party developers (each, an “App”) through the Etix Octave Services. Although third-party Apps may interface or function with the Etix Octave Services, unless otherwise stated, these Apps are not part of the Etix Octave Services; App developers provide Apps directly to you. You must enter into separate agreements with the App developers to use the Apps. You are solely responsible for your use of all Apps, compliance with corresponding agreements for Apps, and any associated fees or charges for the Apps. You use Apps at your own risk. Some Etix Octave Services and applications may have additional terms that you must agree to before you can use them.
2.4 You shall comply with any operating procedures, requirements, and guidelines applicable to your use of the Etix Octave Services.
You shall not and shall not permit any third party to:
(a) access or attempt to access the Etix Octave Services (or any part) that is not intended to be available to you;
(b) access or use (in any format) the Etix Octave Services (or any part) through any time-sharing service, service bureau, network, consortium, or other means;
(c) without Etix Octave’s advance written consent, use, ship or access the Etix Octave Services (or any part) outside or from outside of the Location;
(d) perform or attempt to perform any actions that would interfere with the proper working of the Etix Octave Services, prevent access to or use of the Etix Octave Services by other users, or impose a large load on Etix Octave’s infrastructure, network capability or bandwidth; or
(e) use the Etix Octave Services except as permitted in these Terms.
5.1 You may access the Etix Octave Services through your tablet or other device identified by Etix Octave as compatible with and capable of accessing and/or supporting the Etix Octave Services (the “Device”) using a wired (Ethernet) or wireless (Wi-Fi or cellular) connection to the Internet. You are solely responsible for the payment of any fees that may be imposed by your Internet/data provider. Your use of the Etix Octave Services accessed wirelessly or through the Internet is subject to: (a) the terms of any agreements you have with your Internet/data provider; and (b) availability, transmission range and uptime of the services and any wireless equipment.
5.2 The Etix Octave Services do not function with every mobile device. Etix Octave may alter which Devices are approved as compatible with the Etix Octave Services in Etix Octave’s sole discretion.
5.3 You shall at all times comply with any operating procedures, requirements, or guidelines regarding your use of the Etix Octave Services.
5.4 You agree that Etix Octave shall not have any liability to you arising directly or indirectly from or otherwise concerning: (a) any termination, suspension, delay or disruption of the Etix Octave Services (including billing for the Etix Octave Service) by the Internet, any common carrier or any third party service provider; (b) any failure, disruption or malfunction of the Etix Octave Services, the Internet, or any communications network, facility or equipment beyond Etix Octave or a third party’s reasonable control; (c) your failed attempts to access the Etix Octave Services or to complete transactions via the Etix Octave Services; or (d) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you.
The Etix Octave Services may contain links to services, products or promotions provided by third parties and not by Etix Octave (“Third Party Services”). If you decide to use Third Party Services, you will be responsible for reviewing and understanding the terms and conditions associated with the Third Party Services (including obtaining and maintaining any required third-party hardware and/or software that is required for the Third Party Services to work with the Etix Octave Service). Any access of or content downloaded or otherwise obtained through your use of the Third Party Services is accessed or downloaded at your own risk. Etix Octave will not be responsible for any actions or any failures to act of any third party, and expressly disclaims all liability related to any Third Party Services. Etix Octave does not warrant, endorse, guarantee, or assume responsibility for any provider of a Third Party Service or Third Party Service advertised or offered through the Etix Octave Services or any hyperlinked website or service, or featured in any banner or other advertising. Etix Octave will not be a party to or in any way monitor any transaction between you and providers of Third Party Services.
7.1 Etix Octave may perform maintenance on the Etix Octave Services which may result in service interruptions, delays, or errors. Etix Octave will not be liable for any such interruptions, delays, errors, or bugs. Etix Octave may contact you to assist you with the Etix Octave Services and obtain information needed to identify and fix any errors.
7.2 Etix Octave may release enhancements, improvements, or other updates to the Etix Octave Services. You shall integrate and install any update into your systems within thirty (30) days of your receipt of notice from Etix Octave that such actions by you are required. Failure to install any updates in a timely fashion may impair the functionality of the Etix Octave Services. Etix Octave will have no liability for your failure to properly install the most current version of any update, and Etix Octave will have no obligation to provide support or services for any outdated versions.
7.3 Certain software can automatically install, download, and/or deploy updated and/or new components, which may include a new version of the software itself. You shall not, in any event or in any manner, impede the update process. You agree to assume full responsibility and to indemnify Etix Octave for all damages and losses of any nature, for all adverse results or third party claims arising from your impeding the update process.
For your use of the Etix Octave Services, you agree to pay the applicable fees based on your use of the Etix Octave Services. If you dispute any amounts you are charged, you must notify Etix Octave in writing within thirty (30) days of incurring the charge that you dispute. If you notify Etix Octave after thirty (30) days, you agree Etix Octave has no obligation to make any adjustments or refunds. Etix Octave may change the fees at any time without notice. Etix Octave may appoint certain of its affiliates to undertake collection activities for unpaid amounts due and you must attorn to these affiliates as if they were Etix Octave.
9.1 Your obligations under these Terms continue for as long as you use the Etix Octave Services, unless we terminate your Etix Octave Account by giving the other thirty (30) days’ notice, or as otherwise provided in these Terms.
9.2 Etix Octave may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Etix Octave Services without any notice and liability for any reason, including if in Etix Octave’s sole determination you violate any provision of these Terms or have breached any agreement you have with Etix Octave’s affiliates.
9.3 The rights, obligations, and limitations in these Terms which by their nature should survive, including those of Sections 5.4, 7.2, and 7.3, and Articles 2, 9, 10, 12, 13, 14, 15, 16, 17, and 21, will survive termination of these Terms.
10.1 All data collected via the Etix Octave website or in connection with your application for and use of the Etix Octave Services, including customer information is collected by Etix Octave (collectively, the “Etix Octave Data”). The Etix Octave Privacy Policy (available at https://octavepos.com/patron-app-privacy-policy/ describes Etix Octave’s collection, use, disclosure, and other practices of Etix Octave in connection with personal data in Etix Octave Data.
10.2 You acknowledge and agree that when you install an App, you establish a contractual relationship with the developer of the App. By installing an App, you authorize and instruct Etix Octave to process and transfer personal information to facilitate your ongoing use of the App, including the disclosure of certain categories of personal information to the developer of the App and the receipt of personal information from the developer, as may be required by the App, until such time as you instruct Etix Octave otherwise. You are solely responsible for instructing an App developer to cease processing and/or destroying any personal information.
10.3 Etix Octave may process Etix Octave Data (including personal information) to create aggregated, anonymized, or de-identified information and use that information for its lawful business purposes, including for purposes of creating and sharing with third-parties data insights and analytics and demographic profiling. You agree that Etix Octave may collect, use, retain, disclose and combine Etix Octave Data for the following purposes: (i) to provide the Etix Octave Services to you or other clients, (ii) providing additional products and services to you, other merchants, and/or third parties, (iii) for research, development, and analytics, (iv) fraud prevention, risk mitigation and to protect against illegal activity, (v) for marketing purposes, (vi) for data collection, use and sharing purposes permitted under Etix Octave’s Privacy Notice (whether or not the data constitutes personal data), (vii) compliance with Applicable Laws , and (viii) for Etix Octave’s accounting purposes and to protect and enforce Etix Octave’s rights (collectively, the “Permitted Purposes”). This includes using cardholder information, dates, transaction details, and other transaction, business information, and Etix Octave Data to provide you with analytics products and services as well as collecting and using transaction data aggregated with other merchants’ transaction data to provide you, other merchants, and third parties with analytic products and services. Etix Octave may continue to access, retain, use, share and combine the Etix Octave Data for the Permitted Purposes following termination of these Terms.
11.1 You are solely responsible for ensuring that your account numbers, passwords, security questions and answers, login details and any other security or access information used by you to use or access the Etix Octave Services are kept safe and confidential. You must prevent unauthorized access to and use of any of your information or data used with or stored in or by the Etix Octave Services (collectively, the “Account Data”). You are responsible for electronic communications sent to Etix Octave or to any third party containing Account Data and for all uses of the Etix Octave Services in association with your Account Data, whether or not authorized by you. Etix Octave has the right to rely on user names, password and other signor credentials, access controls for the Etix Octave Services or any software provided or approved by Etix Octave to authenticate access to, and use of, the Etix Octave Services and any software. You must immediately notify Etix Octave if you become aware of any loss, theft, or unauthorized use of any Account Data (see Etix Octave Services support center contact information below). Etix Octave reserves the right to deny you access to the Etix Octave Services, in whole or in part, if Etix Octave believes that any loss, theft or unauthorized use of any Account Data or access information has occurred.
11.2 You may submit comments or ideas about the Etix Octave Services, including about how to improve the Etix Octave Services. By submitting any idea, you agree that (a) Etix Octave expressly disclaims any confidentiality obligations or use restrictions, express or implied, with respect to any idea; (b) your submission will be non-confidential; and (c) Etix Octave and/or its affiliates are free to use and disclose the idea on an unrestricted basis without notifying or compensating you. You release Etix Octave and/or its affiliates from all liability and obligations that may arise from Etix Octave’s receipt, review, use or disclosure of any portion of any idea.
12.1 All right, title and interest in and to all confidential information and intellectual property related to the Etix Octave Services (including Marks [as defined below], all software, the content of any materials, web screens, layouts, processing techniques, procedures, algorithms, and methods and any updates, changes, alterations, or modifications to or derivative works from such intellectual property), owned, developed or licensed by Etix Octave at any time or employed by Etix Octave in connection with the Etix Octave Services, shall be and remain, as between Etix Octave and you, Etix Octave’s or its affiliates’, Etix Octave’s vendors’ or licensors’ (as applicable) sole and exclusive property and all right, title and interest associated with the Etix Octave Services not expressly granted by Etix Octave in these Terms are deemed withheld. You may not use Marks in any manner, including in any advertisements, displays, or press releases, without Etix Octave’s prior written consent. “Marks” means Etix Octave’s names, logos, emblems, brands, service marks, trademarks, trade names, taglines, or other proprietary designations.
12.2 You shall not, and shall not permit any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover by any means any source code, underlying ideas or algorithms of the Etix Octave Services, (or any part), except to the extent that such restriction is expressly prohibited by law; (b) modify, translate, or alter in any manner, the Etix Octave Services (or any part) or the Marks; (c) create derivative works of or based on the Etix Octave Services (or any part), or the Marks; (d) except for backup and archival purposes, directly or indirectly copy the Etix Octave Services (or any part); (e) republish, upload, post, transmit, disclose, or distribute (in any format) the Etix Octave Services (or any part) except as permitted in these Terms; or (f) remove, relocate, or otherwise alter any proprietary rights notices from the Etix Octave Services (or any part) or the Marks.
12.3 If Etix Octave provides you with copies of or access to any software or documentation, unless otherwise expressly stated in writing, that software and documentation is provided on a personal, non-exclusive, non-transferable, non-assignable, revocable limited license for the period of your subscription to the Etix Octave Services and solely for you to access and use the software and documentation to receive the Etix Octave Services for its intended purpose on Devices owned or licensed by you.
12.4 You shall not take any action inconsistent with the stated title and ownership in this Section. You will not file any action, in any forum that challenges the ownership of any part of the Etix Octave Services, any related software, materials or documentation. Failure to comply with this provision will constitute a material breach of these Terms.
Use of the Etix Octave Services is at your own risk. To the maximum extent permitted by Applicable Laws, the Etix Octave Services are provided to you “as-is”. Etix Octave disclaims all representations or warranties regarding quality, suitability, merchantability, or fitness for a particular purpose of the Etix Octave Services. Etix Octave disclaims all representations or warranties that the Etix Octave Services will operate uninterrupted or error free; that the Etix Octave Services are secure, free of viruses or other harmful components; or, that the Etix Octave Services do not infringe the rights of any person.
14.1 You shall: (i) comply with the requirements of all laws and regulations, rules, or standards related to use of the Etix Octave Services, including those related to your use and provision of any cardholder data, customer information or other point of sale data accessed or provided in connection with the Etix Octave Services (and which may differ depending on the Location) (collectively, Applicable Laws), and (ii) use the Etix Octave Services only in the manner permitted in these Terms. You shall not use the Etix Octave Services for illegal purposes.
14.2 You are solely responsible for ensuring the accuracy, quality, integrity, legality and appropriateness of all information and data that you provide to Etix Octave or its service providers in connection with the Etix Octave Services. In addition, if applicable, you are solely responsible for verifying that all information is provided by you. Etix Octave and its service providers disclaim any and all liability arising out of any inaccuracies with respect to any information or data you provide.
14.3 By using Google Pay (where applicable) you hereby agree to Google Pay API Terms of Service.
14.4 By using Apple Pay (where applicable) you hereby agree to the Apple Pay Terms and Conditions.
Neither Etix Octave nor its affiliates or directors, officers, employees, agents, or subcontractors will be liable under any theory of tort, contract, or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, special, punitive, incidental, indirect, or consequential damages arising out of or related to these Terms, each and every one of which is excluded by agreement of you and Etix Octave, regardless of whether such damages were foreseeable or whether any person has been advised of the possibility of such damages. Etix Octave’s (and its affiliates’) cumulative liability for all losses, claims, suits, controversies, breaches, or damages for any cause (including any of Etix Octave’s indemnification obligations), regardless of the form of action or legal theory, will not exceed the amount of fees received by Etix Octave under these Terms for the three (3) month period immediately preceding the month in which such liability arose.
You will indemnify, defend, and hold Etix Octave harmless (and Etix Octave’s employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to:
(a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms, including without limitation any violation of our policies or the card associations’ rules;
(b) your wrongful or improper use of the Etix Octave Services or any Third Party Services;
(c) any transaction submitted by you through the Etix Octave Services or any Third Party Services (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you);
(d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights;
(e) your use of any personal information obtained in connection with your use of the Etix Octave Services, any Third Party Services, or the Device, or any Apps used on the Device;
(f) the activities under your Account, or any other party’s access and/or use of the Etix Octave Services, any Third Party Services, or Device with your unique username, password, API key, or other appropriate security code;
(h) any data breach, information security incident, or similar, arising from your action or inaction;
(i) your violation of any law, rule or regulation of the Location or any other country; or
(j) any other party’s access and/or use of the Etix Octave Services or any Third Party Services with your usernames, password and any other sign on credentials/access controls for the Etix Octave Services or any software provided or approved by Etix Octave to authenticate access to, and use of, the Etix Octave Services, any Third Party Services and any software.
You represent and warrant that:
(a) you have the right, power, and authority to enter into and perform under these Terms;
(b) any sales transaction submitted by you (i) is genuine and arises from a genuine sale or service that you directly sold or provided, (ii) accurately describes the goods or services sold and delivered to a purchaser and (iii) represents the correct amount of goods or services purchased from your business;
(c) you will fulfill all of your obligations for which you submit a transaction; and
(d) you will not fraudulently use the Etix Octave Services;
18.1 You agree that Etix Octave, its affiliates and its third party subcontractors and/or agents, may use, in addition to any live agent calls, an automatic telephone dialing system, an artificial or pre-recorded voice, or both, to contact you at the telephone number(s) you have provided, and/or may leave a detailed voice message if you are unable to be reached, even if the number provided is a cellular or wireless number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes.
18.2 You consent to receiving commercial electronic messages, including e-mail messages, SMS and text messages, and telephone calls, from Etix Octave, its affiliates and its third party sales contractors and/or agents.
Etix Octave has the right to change or add to these Terms at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Etix Octave Services with notice that Etix Octave in our sole discretion deem to be reasonable in the circumstances, including such notice on Etix Octave’s website or any other website maintained or owned by Etix Octave. Any use of the Etix Octave Services after Etix Octave’s publication of any such changes or providing notice shall constitute your acceptance of these Terms as modified.
These Terms, and any rights or licenses granted hereunder, may not be transferred or assigned by you (including by operation of law, transfer of voting control of you or otherwise) without Etix Octave’s prior written consent, but may be assigned by Etix Octave without restriction.
These Terms are a complete statement of the agreement between you and Etix Octave and describe the entire liability of Etix Octave, its affiliates, its vendors, and its suppliers (including processors) and your exclusive remedy with respect to your use and access to the Etix Octave Services. In the event of a conflict between these Terms and the Privacy Notice, the Privacy Notice shall prevail. These Terms shall be governed and construed in accordance with the laws of the State of Delaware without regard to its conflicts of laws provisions. You and Etix Octave agree to submit to the exclusive jurisdiction of the courts located within the State of Delaware to resolve any legal matter arising from these Terms. If any provision of these Terms is invalid or unenforceable under Applicable Laws, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under Applicable Laws, and the remaining provisions will continue in full force and effect. These Terms do not limit any rights that Etix Octave may have under trade secret, copyright, patent, or other laws. Except for Etix Octave’s affiliates and as otherwise stated herein, no persons shall be third party beneficiaries to these Terms. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such provision or any other provision, and Etix Octave’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Notices sent to your last known e-mail address or postal address, as indicated in our records, shall constitute effective notice to you under these Terms. If Etix Octave is forced to initiate litigation to enforce its rights under these Terms and Etix Octave prevails, Etix Octave shall be entitled to reimbursement of its reasonable attorneys’ fees and court costs from you.
If you have any questions about these Terms, please contact Etix Octave at support@octavepos.com. Except as otherwise stated in these Terms, all notices to Etix Octave required or permitted in these Terms relating to the Etix Octave Services shall be in writing and sent by postal mail as follows:
(a) Etix, Inc., Attn: Etix Octave, 909 Aviation Parkway, Suite 900, Morrisville, NC 27560 (for notices within the United States); or
(b) Etix, Inc., Attn: Etix Octave, 909 Aviation Parkway, Suite 900, Morrisville, NC 27560 (for notices outside the United States).
Notices shall be effective when actually received or, if sent by courier, when delivered.
© 2024 OCTAVE POINT OF SALE • ALL RIGHTS RESERVED.
© 2024 OCTAVE POINT OF SALE
ALL RIGHTS RESERVED.
