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Compliance Additional Terms and Conditions

Effective Date: May 1, 2020 (v.20.1)

  1. SCOPE. Everi is in the business of licensing certain software (“Installed Software”) and offering online content management systems (“Online Services”) and proprietary computer software program(s) made available via the internet (“Online Software”, and together with the Installed Software, collectively, the “Software”) for use with the operation and management of gaming establishments and certain other licensed venues, and providing installation and other Software related professional services (“Professional Services”) and support services (“Support Services”, and together with the Professional Services and the Online Services, the “Services”)(the Software and Services are individually, and collectively, “Deliverables”) as more particularly identified on the applicable ordering document between the parties (each, an “Order”). Customer and Everi agree that these additional terms and conditions shall govern and control the Order between the parties for the Software and/or Services. Each Order shall set forth in reasonable detail the specific terms of such transaction, including, without limitation, the Software to be licensed and Services to be provided, the price and the basis for pricing, and the Premises to be licensed and/or receive the Services. Each Order is an independent contract, incorporating these terms and conditions. Capitalized terms used herein without definition shall have the meaning provided in the Everi General Terms and Conditions, and as may be more specifically identified in the applicable Order.
  2. RENEWALS. In the event that Customer and Everi have contracted for any Deliverables pursuant to separate agreement(s) for such items prior to the Effective Date (each a “Legacy Agreement”), the parties agree that as of the Effective Date, the terms and conditions of such separate Legacy Agreement shall be expressly superseded by the terms of the Order, and any renewal term for such items shall be at the pricing set forth on an Order or renewal invoice, as applicable, and which may be prorated based on previous billing cycles.
  3. TERM. The initial term for the Subscription and Support Services based Deliverables shall be for the period set forth on the Quote (“Initial Term”), commencing on the completion of installation. After the expiration of the Initial Term, and unless either party has provided written notice of its intent not to renew such Subscription and/or Support Services ninety (90) days prior to the end of the then current term for such Deliverables, the term for such Subscription and/or Support Services Deliverables will renew as set forth on the Quote (“Renewal Term”) (the Initial Term and each Renewal Term are individually, and collectively, the “Service Term”).
  4. FEES AND PAYMENTS. The fees and any other charges for the Software licenses and Services are described more specifically herein, and shall be as set forth on each applicable Order (individually, and collectively, the “Fees”). These fees are exclusive of any travel and other reimbursable expenses and third party expenses. Paid fees are non-refundable except in the event of Customer’s termination for Everi’s uncured material breach of the Order.
  5. ACCEPTANCE OF DELIVERABLES. Immediately following the completion of installation and/or Customer’s receipt of any Deliverables, Everi will present Customer with an acceptance document upon which any issues identified during the installation and/or testing of the Deliverables shall be noted by the parties, and which shall be addressed via Support Services or Professional Services, as applicable. Customer’s failure to timely sign and return such document at such time shall be deemed to constitute an acceptance by Customer of such Deliverables.
  6. REMEDIES. If (i) Everi reasonably believes that Customer and/or any of its representatives may be participating in activities that may violate any applicable law or regulation; (ii) Customer has breached and has not cured its breach of any provision of the Order and/or applicable law or requirements of a Provider (as defined in Section 13), as applicable, to the reasonable satisfaction of Everi within 30 days of Everi’s written notice of such breach; (iii) Customer does not accept delivery or allow installation of the Software, or provision of the Services within 180 days of the scheduled date; or (iv) applicable law or Provider prohibits, limits, or restricts the further delivery of the Deliverables, or any material portion thereof, Everi may, at its sole discretion, exercise any one or more of the following remedies without liability and without prejudice to any other remedy available to Everi at law or in equity (x) declare all obligations of Customer immediately due and payable, (y) suspend or terminate any affected Software licenses or Services, and/or (z) terminate the Order.
  7. ASSIGNMENT. Notwithstanding anything to the contrary in the Everi General Terms and Conditions, the Order and any licenses granted hereunder, are not assignable or transferable by Customer, by operation of law or otherwise, without the written consent of Everi.
  8. AUDIT. Customer agrees that its use of the Software shall be limited to the number of users, servers and/or specific database(s) indicated on the applicable Order, and agrees to submit to Everi upon Everi’s written request, but not more often than quarterly each year, a statement as to the total number of users and servers using the Software. In the event that Customer desires to increase the maximum user/server/workstation count, Customer shall notify Everi of the intended increase in advance, and additional fees will become due and payable upon such notice. Upon no less than five business days prior written notice, Everi shall have the right, directly or through a third party, and at reasonable times, to inspect Customer’s or other authorized users’ computer hardware and information systems which the Software is operating and/or accessible, and review pertinent records for the purposes of verifying Customer’s compliance with the Order.
  9. CUSTOMER RESPONSIBILITIES. Customer’s access to, and use of the Software and/or Services is conditioned on Customer’s acceptance of and compliance with the following terms. Customer shall (i) provide, at its own expense, the appropriate hardware and/or software, Internet connectivity, and networking as Everi may reasonably recommend from time to time (collectively, the “Operating Environment”) for Customer’s use in connection with the Software and/or Services; (ii) establish internet connectivity, networking, and user connectivity to the Services using the internet, including, without limitation, opening applicable ports, configuring remote printing for its users, and maintaining all user accounts and desired access credentials to the Software and/or Services; (iii) be solely responsible for independently licensing or otherwise obtaining and paying the fees associated with any third party databases, software and/or interfaces, and attaining any technical support therefor; (iv) ensure that the personnel using the applicable Software and/or Services are adequately trained in its proper operation; (v) be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data and other information or content submitted or supplied by Customer through the Software and/or Services (“Customer Data”); (vi) verify that the Software and/or Services meets any applicable requirements; (vii) maintain a separate test environment for applicable Software and/or Services upgrades and use prior to completion of installation of the applicable Software and/or Services; and (viii) use the Software and/or Services solely for its internal business purposes as specified in these Compliance Additional Terms and Conditions; (ix) use the Software and/or Services only for lawful purposes; (x) ensure that all Customer users comply with the terms of the Order; (xi) comply, and ensure all its users comply, with all applicable local, state, federal, tribal and foreign laws and regulations applicable to its use of the Software and/or Services and (xi) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software and/or Services, and notify Everi promptly of any such unauthorized use or access; (xiii) timely complete of all Customer tasks with respect to the Software and/or Services; (xiv) be responsible to accept and/or provide periodic data delivery, output validation, and task authorization as provided in the Service Description (as defined in Section 23); and (xv) with regard to Online Services and/or Online Software, back up the Customer Data. The terms of the Order apply to Customer, and all of Customer’s users and others who access or use the Software and/or Services contracted by Customer. Furthermore, Customer acknowledges and agrees that Customer shall be solely responsible for maintaining any third party interface connections and agrees to provide Everi at least 30 days prior written notice of any third party interface upgrades (“Third Party Upgrade Notice”). If Customer fails to provide Everi with the Third Party Upgrade Notice, Customer shall be liable to Everi for Professional Services based on the then current pricing structure for any Professional Services required as a result of such third party interface upgrade. Customer represents and warrants it shall comply with all of the terms of this Section.
  10. CUSTOMER ACKNOWLEDGEMENTS. Customer acknowledges and agrees that Everi:
    1. does not have control over Customer’s Operating Environment, and has no responsibility or liability for any delay or Software performance due to untimely installation, non-operation, or faulty operation of Customer’s Operating Environment, nor will any such issues relieve Customer of its obligation to pay Everi as set forth herein;
    2. has no responsibility or obligation to review, monitor, validate or approve any Customer Data or other content provided by Customer through the applicable Deliverables, and Everi’s acceptance of such Customer Data and/or other content through the applicable Deliverables shall not be interpreted as Everi’s approval or authorization of any of same;
    3. has no responsibility or obligation to review, monitor, validate or authorize any output or tasks, or Customer’s use of the Software and/or Services, and does not guarantee the accuracy, quality or usefulness of the foregoing;
    4. has no responsibility or liability for any delay in its performance due to delays caused or extended by the Customer;
    5. has no responsibility or obligation with respect to the applicability or sufficiency of any actions completed by Customer through the Software and/or Services, and does not guarantee that Customer’s use of the Software and/or Services will be sufficient to meet any requirements applicable to Customer;
    6. does not own or control any services provided by internet service carriers, and has no responsibility or liability arising from the performance or non-performance of such service providers;
    7. Software may use government websites and databases (collectively “Websites”) for certain data needed to perform certain of its functions, in conjunction with data provided by Customer for such purposes, and Everi is not responsible for delays or inaccuracies caused by non-availability of such Websites or for incorrect information provided by such Websites; and
    8. with regard to Online Software and Online Services, attempts to keep regular backups of data stored on its systems, however does not guarantee the accuracy or regularity of its backup services.
  11. RESTRICTIONS. Customer shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the applicable Deliverables available to any third party, other than as specified herein; (ii) decompile, disassemble, reverse engineer, upload, reproduce, modify, distribute, transmit, duplicate, copy, sell or resell, display, perform, publish, license or sublicense, create derivative works from, transfer or otherwise exploit any of the applicable Deliverables for any commercial purpose that is not expressly granted by Everi or otherwise attempt to derive or access any of the applicable Deliverables source code, database designs, database stored procedures, database structures, and/or reduce any of the applicable Deliverables code to any other human readable form, or permit any other to do any of the same; or (iii) access the applicable Deliverables for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
  12. PROHIBITED USE. Customer shall not use the Software and/or Services for any purpose not expressly permitted by the terms of the Order, nor:
    1. use the Software and/or Services in any manner that could damage, disable, overburden or impair Everi’s server and/or facilities or the servers and/or facilities of other users of the Services, interfere with any other party’s use or enjoyment of the Software and/or Services, or interfere with or disrupt the integrity or performance of the Software and/or Services or the data contained therein;
    2. subvert, or assist others in subverting, the security or integrity of any Everi systems, facilities or equipment;
    3. attempt to gain unauthorized access to the Software and/or Services or Everi’s related system or networks or any computer systems or networks connected to the Everi server, Software and/or Services, or products offered via the Software and/or Services, or to any other’s accounts or information, through hacking, password mining or any other unauthorized means, or obtain or attempt to obtain any materials or information through any means not intentionally made available to it by Everi through the Software and/or Services;
    4. send via, upload to, or store within the Software and/or Services, any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights (“Prohibited Content”);
    5. use the Software and/or Services in connection with any tortious or actionable activity. Without limiting the general applicability of the foregoing, Customer may not use the Software and/or Services to publish or disseminate information that threaten persons with bodily harm, to make harassing offensive, indecent, obscene or abusive statements or messages, or to solicit the performance of acts or services that are illegal under applicable law;
    6. use the Software and/or Services in any manner that is in violation of any applicable local, state, federal, tribal or foreign laws or regulations or that may subject Everi to unfavorable regulatory action; or
    7. send via, upload to, or store within the Software and/or Services any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
    Where Everi reasonably believes that any Customer conduct violates applicable law, the provisions of the Order, or is harmful to the interests of Everi or its affiliates for any other reason, Everi may, in its sole discretion and without notice, without liability to Customer, and without limitation of any other of its rights in law or equity, refuse service, suspend or terminate account(s), purge Customer’s Data, and/or cancel any Orders, in whole or in part, or deny Customer’s or any person’s access to the Software and/or Services or any portion of the Software and/or Services. Customer represents and warrants it shall comply with all of the terms of this Section. Any breach of this Section will be deemed to be a material breach of the Order. Customer agrees to indemnify, defend and hold harmless Everi from and against any action, proceeding, or demand brought against Everi and related costs arising from or related to Customer’s or any of its users’ use of the Software and/or Services in violation of the Order. Everi further reserves the right to pursue any legal action available against any user whose use violates any local, state, federal, tribal or foreign laws or regulations or terms of the Order.
  13. PROPERTY RIGHTS. Regardless of any words of purchase used in any Order, invoice or other document with respect to the Software, all right, title, and interest in and to the Software and any related copyrights, patents, trade secrets, trademarks, and any other intellectual property rights are, and shall remain, the sole and exclusive property of Everi and/or its affiliates, agents, suppliers, licensors, or third-party service provider (“Provider”), as applicable, and shall not be conveyed or transferred to Customer. Everi shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Software and/or Services or any new programs, upgrades, modifications or enhancements developed by Everi or the Provider in connection with providing the Software and/or Services to Customer, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Everi by virtue of the Order or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause its affiliates to transfer and assign) to Everi all rights, title, and interest which Customer or its affiliates may have in to such refinements and improvements. Copyrighted material including but not limited to the Software source code is protected by United States and international copyright laws. All content included in the Software, such as text, graphics, logos, icons, images, photographs, audio or video clips, digital downloads, data compilations, and mobile applications and back end software which is part of the Software, is the property of Everi and or the respective Everi affiliate or service provider. However, Customer Data and other content posted or created by Customer is assumed to be the responsibility of Customer. Notwithstanding anything herein to the contrary, neither Everi nor its affiliates, subsidiaries or subcontractors shall be liable in any way for loss, disclosure, or accuracy of Customer Data or other content stored or managed by the Software or processed by Customer using the Software.
  14. CUSTOMER DATA. Customer is the exclusive owner of, and holds and will retain, all right, title and interest in and to the Customer Data. Customer hereby grants to Everi and its affiliates and Provider a nonexclusive, worldwide and royalty-free right and license to reproduce, transmit and use Customer’s information and the Customer Data solely as necessary for Everi and Provider to provide the services in accordance with the Order. Subject to the limited licenses granted herein, Everi shall not acquire any right, title, or interest from Customer under the Order in and to the Customer Data. Everi shall have a royalty-free, transferable, worldwide, perpetual license to use or incorporate into the applicable Deliverables any suggestions, ideas, enhancements requests, feedback, recommendations or other information provided by Customer or its users relating to the operation of the applicable Deliverables.
  15. CONFIDENTIALITY. Customer understands and agrees that all Software licensed pursuant to the Order, and related documents and information, including without limitation, all information provided by Everi and/or a Provider through the Software and all other material or documents of a secret, confidential or proprietary nature made available to Customer or obtained by Customer as a result of entering into the Order shall be considered the proprietary and confidential information of Everi (collectively, “Information”), regardless of whether or not it is marked as such. Customer agrees it shall not directly or indirectly, use any Information provided to it by Everi except to report the required information to FinCEN, to determine whether to establish or maintain an account or engage in a transaction, or to assist Customer in connection with its BSA/AML compliance program. Customer shall at all times, maintain the confidentiality of such Information and shall never sell, license, copy, reuse, disclose, reproduce, reveal, show, display, discuss or make accessible, in whole or in part, the Information to any person firm, corporation or other entity except (i) to those employees of Customer with a need to know and in the course of their employment who have been advised of the confidential nature thereof, their obligations set forth herein, and only as necessary for the uses intended by the Order; or (ii) as required to comply with applicable law or regulation. Customer shall also track and monitor its access to the Information, prevent any use not in conformance with the terms of the Order and maintain records to demonstrate its compliance with its obligation of compliance with the terms of the Order. Customer shall indemnify, defend and hold Everi and Provider harmless, in accordance with the terms of indemnity set forth in the Everi General Terms and Conditions, from and against any and all claims, liabilities and expenses, which may be asserted against or incurred by Everi that arise out of or are related to the use by Customer of the Information.
  16. CONSUMER PROTECTION LAWS. Customer acknowledges and agrees that the Deliverables may only be accessed from within the United States and that it will comply with all applicable international, national, federal, provincial, state, or local law, code, rule or regulation that regulate the access, use, transmission, processing, or privacy of consumer information in any way, including, without limitation, Customer’s applicable Fair Credit Reporting Act (15 U.S.C. §1681 et seq.), The Driver’s Privacy Protection Act (18 U.S.C. § 2721-2725) or Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.) permitted use, data protection laws, laws regulating marketing communications and/or electronic communications, information security regulations and security breach notification rules (collectively, “Consumer Protection Laws”), and comply with all standards that relate to the Consumer Protection Laws and the privacy and security of consumer information. Customer shall establish and maintain appropriate administrative, procedural, technical, and physical safeguards to protect the privacy and security of its customers’ nonpublic personal information, to (a) insure the security and confidentiality of consumer records and information stored by Customer; (b) protect against any anticipated threats or hazards to the security or integrity of such records; and (c) protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any consumer. In the event that Customer learns or has reason to believe that its customers’ nonpublic personal information has been disclosed or accessed by an unauthorized party, Customer shall immediately give notice of such event to Everi and shall comply with all applicable laws. Notwithstanding anything herein to the contrary, neither Everi nor its affiliates, subsidiaries or subcontractors shall be liable in any way for loss or the disclosure of Customer’s data stored or managed by the Software or the disclosure of any data stored or processed by Customer using the Software under any circumstances.
  17. INFRINGEMENT. Everi represents and warrants that the Software, as delivered to Customer, does not infringe upon any valid U.S. patents, trademarks, trade names or other intellectual property rights of any third parties. The representation and warranty above shall not apply to the extent that any third party claims arise from or relate to any of the following (each, an “Exception“): (i) Customer’s failure to use any update, upgrade, or new release of the Software where use of such update, upgrade, or new release would have avoided the applicable infringement, misappropriation, or unauthorized use and Customer was provided written notice thereof; (ii) any unauthorized combination of the Software with the intellectual property rights of a third party; (iii) Customer’s use of the Software in any manner not intended by the Order or Everi’s product documentation; (iv) modification of the Software by any party other than Everi or a party authorized by Everi where the unmodified Software would not infringe; (v) use of the Software as part of an infringing act, omission or process of Customer; (vi) any Software provided at no charge; or (vii) Customer’s use of any data or content not provided by Everi in connection with the Software. Customer agrees to release Everi and hold Everi harmless from and in respect of any and all third party claims that arise from or relate to any of the Exceptions. Except for the indemnity set forth in the Everi General Terms and Conditions for breach of the representation and warranty, as Customer’s sole remedy for Everi’s breach of the representation and warranty set forth in this Section, Everi shall at Everi’s cost and option, either (a) procure the right for Customer to continue to use the Software on a non-infringing basis, (b) replace the infringing Software or any part thereof with different, non-infringing Software that has like capabilities, (c) modify the Software so that it becomes non-infringing, or (d) upon the return of the Software and all copies thereof to Everi in accordance with the terms herein, refund any prepaid fees paid by Customer to Everi for such infringing Software, prorating the refund based upon the remaining time in the current prepaid period and terminate the applicable License(s) for such Software.
  18. TERMINATION. In the event of the expiration and non-renewal of the License Term and/or, if required pursuant to the applicable Order, the Support Term (as defined in Section 24(d)), the License and all rights granted to or accrued by Customer to use the Software are revoked. Everi shall have the ability to terminate any License in the event of Customer’s breach of the Order which remains uncured for thirty (30) days after Everi’s written notice, and/or Customer’s failure to pay any applicable fees when due. Upon the expiration or termination of the License Term and/or, if required pursuant to the applicable Order, the Support Term for any reason, Customer shall immediately cease using the Software for any purpose whatsoever, unless otherwise approved by Everi in writing. Upon written request, Customer shall return or certify destroyed, at Everi’s reasonable discretion, any and all Software and permitted copies and related documentation provided to Customer. With regard to Online Services and/or Online Software, upon request by Customer made within 30 days of the termination of any Service, Everi will make the Customer Data available to Customer; provided that Everi reserves the right to hold the Customer Data until such time as all outstanding fees have been paid. After such 30 day period, Everi shall have no obligation to maintain or provide any of the Customer Data and may thereafter, unless legally prohibited, delete or destroy all copies of the Customer Data in its systems or otherwise in its possession or control without further notice or liability to Customer.
  19. NOT LEGAL ADVICE. The Software is a tool to aid with Customer’s compliance efforts, but Everi does not guarantee any such compliance. Notwithstanding its use of the Software, Customer shall have the responsibility to fulfill any compliance requirements and/or obligations that Customer may have under all applicable laws, including but not limited to U.S. federal and state laws, regulations, rulings, including sanction laws administered by the Office of Foreign Assets Control (“OFAC”), and other requirements relating to anti-money laundering, including but not limited to, the federal Bank Secrecy Act (“BSA”), the USA PATRIOT Act and all other Anti Money-Laundering laws (“AML”) to which Customer is subject, and any regulations of the US. Treasury Department to implement such Acts, as amended from time to time. The Software and any content provided in connection therewith, does not attempt to, nor does it, satisfy any of Customer’s legal obligations which may be administered pursuant to BSA/AML requirements, or of any other law or government agency. The content provided through the Software is not intended to be, and does not constitute legal advice and no attorney-client relationship is formed, nor is anything submitted through the Software treated as confidential. The accuracy, completeness, adequacy or currency of the Customer content or any third party provided content in connection with Customer’s use of the Software is not warranted or guaranteed. Where third party content is provided in connection with Customer’s use of the Software, Customer may only use such information to report the required information to FinCEN, to determine whether to establish or maintain an account or engage in a transaction, or to assist in Customer’s BSA/AML compliance. Use of the Software does not relieve Customer of its obligation to file a SAR and immediately notify law enforcement, if necessary, in accordance with applicable laws and regulations. Neither Everi, nor Provider, have any responsibility nor liability for any thresholds or other criteria determined or set by Customer in connection with Customer’s use of the Services and Software, and no suggestions for any thresholds shall constitute legal advice provided by Everi. NEITHER EVERI NOR ANY PROVIDER SHALL BE LIABLE TO CUSTOMER OR TO ANY PERSON CLAIMING THROUGH CUSTOMER OR TO WHOM CUSTOMER MAY HAVE PROVIDED NONPUBLIC PERSONAL INFORMATION FOR ANY LOSS OR INJURY ARISING OUT OF OR RELATED TO EVERI’S OR PROVIDER’S ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR DELIVERING THE NONPUBLIC PERSONAL INFORMATION. IN NO EVENT SHALL EVERI NOR ANY PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES INCURRED BY CUSTOMER AND ARISING OUT OF THE PERFORMANCE OF THE ORDER, INCLUDING BUT NOT LIMITED TO LOSS OF GOOD WILL AND LOST PROFITS OR REVENUE, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IF, NOTWITHSTANDING THE FOREGOING, LIABILITY CAN BE IMPOSED ON EVERI AND/OR ANY PROVIDER, EVERI AND ANY SUCH PROVIDER’S ENTIRE AGGREGATE LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES NOT EXCEEDING THE AMOUNT OF FEES PAID BY CUSTOMER HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY.
  20. Outage Policy. Customer acknowledges and understands that Everi does not warrant that the applicable Deliverables or Everi ID services will be uninterrupted or error free and that Customer may occasionally experience outages due to disruptions that are not within Everi’s control. Any service outage not within Everi’s control, shall not be considered a breach of the Order by Everi.
  21. Migration Option. At any time during the term of the Order for the applicable Online Software and/or Online Services, Customer shall have the option to migrate from the Online Software and/or Online Services to Everi on-premise applications. The first four months of Subscription Fees applicable to such Online Software and/or Online Services to be migrated which have been paid by Customer will be credited towards the on-premise software license. The foregoing credit shall not include any fees paid for professional services. Everi will provide Customer with a detailed implementation scope and pricing requiring Customer approval prior to proceeding with the migration. Upon Customer approval, the applicable Order, in whole or in part, will be deemed terminated.
  22. Modification and Waiver. This Order may be modified only by a further writing that is duly executed by both parties. Notwithstanding the foregoing, no terms contained in any Customer issued purchase order shall be deemed to modify the terms hereof, regardless of whether or not such are in a writing, and whether or not such purchase order has been accepted by Everi. No waiver by either party of any rights hereunder and no waiver by either party of any provision of the Order, shall be deemed effective unless in writing executed by the waiving party. A waiver by either party of a breach of any provision of the Order shall not constitute a waiver of any prior or subsequent breach of the same or any other provision of the Order. The failure or delay by either party to exercise any right shall not operate as a waiver of such right. The exercise by either party of any of its rights shall not preclude that party’s further exercise of such right or of any other right, nor be construed as a waiver of any that party’s other rights, powers and remedies.
  23. Software License
    1. INSTALLED SOFTWARE LICENSE. Subject to the permitted use and restrictions set forth herein, pursuant to each Order entered hereunder, Everi hereby grants to Customer, and Customer hereby accepts, a restricted personal, non- perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable, limited license to use the Installed Software as set forth on such Order, at the Premises designated on such Order during the License Term (as defined below), solely in executable form, and solely for Customer’s own internal business purposes as intended by the documentation for such Installed Software (“License”). The foregoing grant is contingent upon Everi’s receipt from Customer of all applicable Fees for such License. If set forth in the Order for such Installed Software, the License is restricted to use by the number of users, workstations and/or servers specified.
    2. INSTALLED SOFTWARE LICENSING FEES. In consideration for the License to use the Installed Software, Customer shall pay to Everi licensing fees for each Premises at which the Installed Software is installed (“Installed Software Licensing Fees”) as set forth on the applicable Order. All Installed Software licensed by Everi additionally requires a subscription to Everi’s Support Services for the continued use of such Installed Software License.
    3. ONLINE SOFTWARE AND ONLINE SERVICES LICENSE. Contingent upon Everi’s receipt of all required license fees from Customer, Everi grants to Customer a restricted personal, non-exclusive, non-transferable, non-sub licensable right to access and use the Online Software and/or Online Services, as set forth on the applicable Order, and to store, reproduce, display, perform, transmit and use the Everi proprietary materials and the Provider’s proprietary materials in accordance with the terms of the Order, to process forms or transactions for its own internal business use. Everi reserves any rights not expressly granted hereunder and Customer shall not acquire any right, title, or interest from Everi under the Order in and to Everi proprietary materials or the Provider’s proprietary materials.
    4. SUBSCRIPTION AND FILING FEES. If set forth on the applicable Order, Customer shall also pay to Everi a monthly recurring subscription fee (“Subscription Fee”) as set forth on the applicable Order for each access, user and/or time period as set forth on the applicable Order or invoice with respect to the services on such Order. In addition to the Subscription Fee, Customer shall pay to Everi quarterly recurring filing fees (“Filing Fees”) on a per transaction basis at the rates set forth on the applicable Order or invoice with respect to the services on such Order. Except as otherwise set forth herein, all fees and any other charges or payments due to Everi shall be as set forth on the applicable Order, with respect to each Premises set forth on such Order. Prior to the end of the then current contracted period, Everi may invoice Customer for the following period based on Everi’s then current pricing structure.
    5. PAYMENT TERMS. Everi will invoice Customer for the Subscription Fees in advance. Payment is due 30 days from the date of the invoice. Except for amounts subject to such good faith dispute, and without waiving any other rights or remedies to which it may be entitled, Everi shall have the right to suspend or terminate its provision of the Online Software and/or Online Services and/or Subscription (as defined below), as applicable, until payment is received for any accounts that are 30 or more days overdue. Accounts suspended or terminated for late payment will be subject to a reconnect fee at Everi’s then prevailing rates. Paid fees are non-refundable except in the event of Customer’s termination for Everi’s uncured material breach of the Order.
    6. LICENSE TERM. Subject to Customer’s payment of the applicable Installed Software Licensing Fees, the term of License to such Installed Software shall commence upon the date of completion of installation of the applicable Installed Software (“Commencement Date”) and unless otherwise terminated in accordance with the provisions hereof, shall continue until the expiration or earlier termination of the Order (“License Term”). Each License granted pursuant to the Order is for limited term use and the License and the License Term will terminate as set forth herein.
    7. ONLINE SOFTWARE. If set forth on the applicable Order, Everi will make available the Online Software to Customer, in executable object code form only. Where a number of users is specified on an Order, then the Online Software may not be accessed by more than the agreed upon number of users for such Online Software. Everi will send to Customer’s designated email address of record, information such as user-IDs and/or passwords which will enable Customer to access the Online Software (the “Passwords”). Each user-ID and Password is for the use of a single individual, and may not be shared by more than one individual, however a user may be deactivated by notice to Everi and such access may be reassigned to a new user thus replacing the one that no longer requires use of such Online Software. Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify Everi promptly upon the loss or compromise of any Passwords and Customer will be solely responsible for all actions incurred as a result of such unauthorized use of the Passwords. Any unauthorized use of the user-IDs and Passwords by Customer will constitute a material breach of the Order. Subject to the permitted use and restrictions set forth herein, Everi will grant to Customer a limited non-exclusive, non-assignable and non-transferable right during the term specified on the applicable Order to access and use the stated Online Software, by authorized users, solely for Customer’s internal business use, and, as applicable, only on Customer’s network workstations authorized by Everi, in accordance with all of the terms and conditions set forth in Order.
    8. ONLINE SERVICES. Subject to Customer’s payment of all applicable fees, Everi shall provide the Online Services to Customer via the internet, in conformance with Everi’s then-current description of the functionality for each such named Online Service (“Online Service Description”), unless otherwise specified in the applicable Order. Everi may make modifications or upgrades to any Online Services or change its Online Service Descriptions at its sole discretion, however Everi will provide advance notification to Customer of any material changes to any contracted Online Services which substantially reduce or degrade existing functionality. Unless otherwise provided in the applicable Order, Online Services are licensed as subscriptions for the specific functionality, number of users, time period (“Subscription Term”), and/or specific number of uses set forth in the Order, as applicable (“Subscription”). Except for Online Services provided on a per use basis, Customer may add additional users and/or modules to contracted Onilne Services at Everi’s then current pricing, at any time during a Subscription Term. The fees and term of such additional users and/or modules will be prorated so as to terminate on the same date as the original Subscription to such Online Services. Subscriptions to additional Online Services may be added at Everi’s then current pricing for such additional Online Services. Except for Online Services provided on a per use basis, and unless otherwise stated in the applicable Order, Customer may add additional Online Services pursuant to subsequent Orders, and Everi will prorate the initial fees and term for the newly added Online Services in order to coincide with the billing intervals and term of Customer’s previously existing Online Services, so that the Subscription to the additional Services will terminate on the same date as the original Subscription. Customer agrees that its license of Online Services on any Order is not contingent upon the delivery of any future functionality or features nor is it dependent on any oral or written public comments made by Everi with respect to any future functionality or features.
  24. Installed Software Maintenance and Support Terms. In addition to the terms and conditions set forth in the Order, this Section shall also apply to Customers who have licensed Installed Software.
    1. DEFINITIONS
      1. “Documentation” means those operating, user, training, and technical reference manuals or notices generally made available by Everi relating to the use, operation or support of the Installed Software and all updates related to them.
      2. “Fix” means a correction to a Installed Software Deliverable developed on an as-needed basis to address a reproducible error, bug, or malfunction and may include a temporary by-pass to correct or lessen the impact of the effect, or a permanent change to correct the defect.
      3. “Product Release” means an accumulation of Fixes.
      4. “Version” means an accumulation of Product Releases and enhancements that add new features to a Installed Software program.
    2. INSTALLED SOFTWARE SUPPORT. Subject to Customer’s payment of the applicable fees for Support Services, during the applicable Support Term (as set forth in Section 24(d) below), Everi shall provide to Customer any new, corrected or enhanced version of the Software as created by Everi during the applicable Support Services term, subject to any jurisdictional and regulatory requirements. Such enhancement shall include all modifications to the Installed Software which increase the speed, efficiency or ease of use of the Installed Software, or modifications that add additional capabilities or functionality to the Installed Software, but shall not include any substantially new or rewritten version of the Installed Software which is made available to Everi’s general customer base for an additional fee. No releases for the Installed Software will be provided to Customer, and no new Installed Software releases may be copied or used by Customer unless and until the applicable Support Fees for such period have been paid. Furthermore, subject to Customer’s payment of the applicable fees for Support Services, Everi will provide remote “Installed Software Support”, defined as reasonable amounts of telephone and email assistance to overcome problems related to software errors resulting from Customer’s use of the Installed Software in accordance with the Documentation, during the hours set forth below and for the fees specified herein on an as-needed basis initiated by Customer. Customer agrees that if Customer notifies Everi of an error or malfunction outside of the hours specified below or the following: (i) Customer’s failure to operate the Installed Software in accordance with the Documentation; (ii) failure of any hardware or software supplied by Customer; (iii) improper configuration of the hardware or software supplied by Customer; (iv) failure of Customer to perform appropriate and adequate backups of the Installed Software or the data associated with the Product; or (v) any other exclusions to Installed Software Support of Installed Software specified herein, any time expended by Everi to fix the problem shall be at Everi’s then current hourly rate.
    3. INSTALLED SOFTWARE MAINTENANCE. Subject to Customer’s timely and full payment of the Support Fees, and the conditions of the Order, Everi will maintain the Installed Software in accordance with the Documentation as follows:
      1. Everi will supply to Customer applicable new Documentation as released by Everi.
      2. Everi will supply Customer with all Fixes for defects reported by Customer or where the Fix will lessen or correct a serious defect.
      3. Everi will offer Customer all Product Releases when they are made available generally to Everi’s customers at no additional charge to Customer.
      4. Everi will offer Customer all Versions; however delivery of certain Versions which are made available to Everi’s customer base for a separate fee, may, at Everi’s sole discretion, require payment of an additional license fee.
      5. If, as the result of Customer making any changes to the Installed Software, any new Product Release or Version of the Installed Software that Everi supplies to Customer are not compatible with the Versions so modified, Everi shall have no obligation to provide support or any Maintenance of Installed Software to Customer.
      6. Everi has no obligation to maintain Versions more than one (1) Version prior to the most current Version available from Everi.
      7. All Fixes, Product Releases, and Versions provided hereunder shall be delivered electronically. Everi reserves the right, without notice, to supersede Versions of Installed Software with newer Versions which may add, modify, or eliminate functionality of earlier versions.
    4. SUPPORT TERM. The initial term of Support Services shall commence upon the completion of installation of the applicable Installed Software (“Support Services Commencement Date”) and shall continue as set forth on the applicable Order (“Initial Support Term”). Upon the expiration of the Initial Support Term or any renewal term, and unless otherwise terminated in accordance with the provisions hereof, the Support Services shall renew automatically for successive renewal terms of duration equal to the Initial Support Term unless otherwise set forth on the applicable Order (“Renewal Term”) based on Everi’s then current pricing structure for such Support Services, unless either party notifies the other in writing not less than 90 days prior to the expiration of the then current term. Customer’s payment of the applicable annual invoice for each such subsequent year’s Support Services, Customer’s payment of which the parties agree shall indicate Customer’s assent to renew the Support Services at such pricing (the Initial Support Term, and each renewal thereof, are the “Support Term”).
    5. SUPPORT FEE. If Customer elects to or is required to receive Support Services, Customer shall pay to Everi the support fee (“Support Fee”) as set forth on the applicable Order or invoice, which is due and payable annually for each Premises at which the Installed Software is installed. Prior to the end of the then current annual period, Everi shall invoice Customer for the following annual installment of the Support Fee based on Everi’s then current pricing structure. Notwithstanding the foregoing, provided that Customer utilizes all of the Qualifying Services from Everi during the Support Term then Everi agrees that any increase in the Support Fee shall not exceed 10% per year, in the aggregate, from the Support Services Commencement Date. The “Qualifying Services” are as follows (collectively): (i) automated teller machine services, (ii) credit and debit cash access services, and (iii) check warranty services. Accounts suspended or terminated for late payment will be subject to a reconnect fee based on Everi’s then current pricing structure.
    6. SUPPORT HOURS. Everi will provide remote Installed Software Support on an as-needed basis, when initiated by Customer by calling 844.EVERI24.
    7. PAYMENT TERMS. Payment is due at the time of Installed Software installation, and annually thereafter, except as otherwise agreed between Customer and Everi, and indicated on the applicable Order or invoice with respect to such Support Services. Invoices are due 30 days from invoice date, and for any renewal term, 30 calendar days prior to the end of the then-current Support Term. Amounts listed on the Order are subject to proration to coincide with Everi’s invoicing intervals.
    8. CUSTOMER RESPONSIBILITIES. Failure by Customer to install an Installed Software Version that is current to within one previous Product Release or Version shall relieve Everi of its obligation to maintain such Installed Software, but shall not relieve Customer of its obligations to pay full Installed Software License and Installed Software Support fees hereunder. Customer shall conduct a complete archival backup within the normal backup and recovery procedures as specified by Customer’s internal information system policies, but no less frequent than one complete backup per week. Unless otherwise agreed in writing by the parties, Customer shall be responsible for the installation of all Fixes, Versions, and Product Releases. Customer acknowledges that its failure to install such items may eventually make the Installed Software unusable or nonconforming to Documentation and Customer assumes all risks of such use.
    9. CUSTOMER SUPPLIED HARDWARE AND SOFTWARE. Everi shall not be required to provide Support Services for any hardware, third party software or systems, or any other software or systems except that Installed Software listed on the applicable Order. If someone other than Everi makes any modification to the Installed Software without the express written authorization of Everi, Everi will continue to supply Support Services to the unmodified portion of the Installed Software. Modification by anyone other than Everi and release of Everi’s obligations for Support Services shall not relieve Customer from its obligation to pay Support Fees hereunder.
    10. EXCLUSIONS. Customer acknowledges that Support Services applies only to the Everi Installed Software provided under the Order, including any subsequent releases, and does not apply to any non-Everi software, database or operating systems, even if ordered pursuant to the Order. Notwithstanding any other provision of the Order, Everi’s obligation to provide Support Services does not include maintenance, repair or replacement arising from(i) Customer’s failure to provide a suitable environment prescribed by Everi; (ii) neglect, accident, disaster (including water, wind and lightning), not attributable to Everi; (iii) alterations, applications, additions or modifications to or for the Installed Software which are not provided or approved in writing by Everi; (iv) host computers, networks, telephone switches and other applications, attachments, machines, software or accessories, and modification or additions thereto, not provided by Everi; (v) failure to use and operate the Installed Software in accordance with the Documentation, including hardware requirements; (vi) requests from any party other than Customer; (vii) maintenance or repair not performed by Everi; or (viii) Customer’s failure to provide Everi with adequate remote access to perform the Support Services.
  25. PROFESSIONAL SERVICES TERMS.
    1. DEFINITIONS
      1. “System Installation” means performing the steps required to get the Software installed and configured to Everi’s specification at the Customer’s Premises.
      2. “System Training” means providing training to Customer’s employees on the proper use of the Software.
      3. “Go-Live Support” means assisting with end users to operate the Software in a commercially operating environment.
      4. “Project Management” means the overall management of the System Installation, System Training, and Go-Live Support.
    2. PROFESSIONAL SERVICES. Everi will provide System Installation, System Training, and Go-Live Support of the Software (collectively, the “Initial Install”) and other Professional Services which are outside the scope of the Initial Install at the rates set forth on the applicable Order, or if not specified on such Order, the cost for such Professional Services will beat Everi’s prevailing rates for such services. Unless otherwise set forth in the applicable Order, Everi shall provide the Professional Services to Customer based on an hourly rate per employee (“Hourly Rate”). Notwithstanding any Professional Services estimate set forth in an Order, Customer agrees to pay Everi for the actual number of Professional Services hours provided. If Daily rates are quoted in the applicable Order or other document between the parties, such daily rates are on a per employee per 8 hour day basis. Such rates exclude any reimbursable expenses incurred by Everi in connection therewith, which shall be payable by Customer in accordance with the following Section 25(c). Everi will provide all Professional Services in a professional and workmanlike manner.
    3. REIMBURSABLE EXPENSES. In addition to the Professional Services fees, Customer will also reimburse Everi for reasonable travel lodging and food expenses associated with providing the Professional Services, subject to any specific terms set forth in the applicable Order. At Customer’s option, Customer may provide complimentary lodging and food credit in lieu of reimbursement for lodging and food expenses. Reimbursable expenses which do not reasonably comply with Customer’s then current written reimbursable travel expense policy for the similar type of expense, may be subject to reduction by Everi to the extent that such expense fails to comply with such policy, upon Customer’s written notice to Everi within 30 calendar days of receiving the invoice for such expense, provided that Customer provided Everi a current copy of such policy reasonably prior to Everi incurring such expense.
    4. CUSTOMER RESPONSIBILITIES. Customer agrees to provide and/or make available its technicians and staff to assist Everi as may be reasonably required by Everi for the provision of the Professional Services. Prior to beginning work on the Professional Services, Everi will present Customer with a readiness assessment. Prior to Everi’s delivery of any Professional Services, Customer shall have the Premises in ready condition, with all cabling run and the area and/or servers prepared for installation, and shall have completed all tasks on the readiness assessment. In the event Everi must perform any preparations because the Premises was not adequately prepared by Customer for Everi to begin its scheduled work on the Professional Services, then the cost of any such services, supplies, and any delays caused thereby, including hourly and/or daily rates and reimbursable expenses, as applicable, for Everi’s employees, will be borne by Customer. Notwithstanding the foregoing, if Customer is unprepared because Everi has arrived to deliver the Professional Services prior to the agreed upon date without Customer or Premises’ written agreement to such change, then Customer shall not be liable to the extent such additional costs arose from the change in schedule.
  26. Additional Terms and Conditions. In addition to the terms and conditions set forth in the Order, these terms shall also apply to Customers who receive services which contain information from Everi’s third party providers, including, without limitation, Services provided through the Everi ID product.
      1. Permissible Purpose – FCRA Compliance. If Customer uses the data for any purpose described within the Fair Credit Reporting Act (FCRA), it is the Customer’s responsibility to ensure its full compliance with FCRA requirements. It is Customer’s responsibility to read and understand the FCRA. Please visit the link below to access the FCRA: http://www.ftc.gov/os/statutes/fcra.htm. Notwithstanding the foregoing, Transunion TLOX data may not be used for FCRA purposes.
      2. OFAC Statement. The office of Foreign Assets Control administers and enforces economic sanctions programs primarily against countries and groups of individuals, such as terrorist and narcotics traffickers. As part of its enforcement efforts, OFAC publishes a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorist and narcotics traffickers designated under programs that are not country-specific. Collectively, such individuals and companies are called “Specially Designated Nationals” or “SDNs.” Their assets are blocked and U.S. personas (and financial institutions) are generally prohibited from dealing with them. Transactions are processed through the OFAC SDN database. A database check with strict match logic is utilized to minimize the false positives typically seen from these searches. The consumer’s name from the inquiry will be compared to the SDN database for exact or partial hits. Any potential matches of consumers to this database return a match code indicating which elements of the record matched, along with the full explanation from the database to assist in further verification, based on the threshold determined or configured by Customer. A match does not verify that the consumer is the actual person on the list. A lower threshold will increase the number of matches, whereas a higher threshold will limit the potential number of matches, and Everi has no responsibility for the performance of the Software and/or Services as a result of the threshold determined or configured by Customer.
      3. TIN Name Matching Statement. Customer certifies that they have filed forms 1099-B, DIV, INT, MISC, OID or PATR in the past and that any TIN/Names being checked relate to a person or accounts where a reportable payment subject to backup withholding is made, or is likely to be made as defined under Section 3406(b)(1) of the Internal Revenue Code. Customer agrees to:
        1. Comply with all requirements of the IRS TIN Matching Revenue Procedure 2003-9;
        2. Transmit only name/TIN combinations relating to accounts with respect to which a reportable payment is made, or is likely to be made, on or after the effective date of the IRS TIN Matching Revenue Procedure 2003-9;
        3. Transmit only name/TIN combinations that have not been previously transmitted by Customer for matching;
        4. Maintain the confidentiality of information obtained through TIN solicitation activities in accordance with the requirements of §31.3406(f)-1 of the Employment Tax Regulations; and
        5. Provide Everi with the information necessary to monitor the effectiveness of the Service and/or Software.
      Customer further certifies that all users of this TIN Name Matching Service are either an “Authorized Agent” or “Delegated User” as defined by the IRS in the TIN Matching Revenue Procedure to collect and match TINs, names, and/or name controls on behalf of the Customer and appoints Everi as proxy for Customer with respect to this procedure.Under the penalties of perjury, Customer declares they have examined the above information as well as the Authorized Agent / Delegated Users provided to Everi and believe the information provided is true, correct and complete by their certification.Customer holds Everi and Provider harmless from any penalties or charges that may result from any misuse by Customer or its delegated user(s), and/or and payer which they represent. Customer certifies that each user will have their own username & password which only they will use.
      1. Death Master File
        1. Customer acknowledges that many services containing Provider information also contain information from the Death Master File as issued by the Social Security Administration (“DMF”);
        2. Customer certifies pursuant to Section 2-3 of the Bipartisan Budget Act of 2013 and 15 C.F.R. § 1110.102 that, consistent with its use of Provider information, Customer’s use of deceased flags or other indicia within the Provider information is restricted to legitimate fraud prevention or business purposes in compliance with applicable laws, rules, and regulations, or fiduciary duty, as such business purposes are interpreted under 15 C.F.R. § 1110.102(a)(1); and
        3. Customer certifies that it will not take any adverse action against any consumer based solely on the deceased flags or other indicia within the Provider information without further investigation. Please visit the link below to access notices and information regarding the DMF: https://dmf.ntis.gov/requirements.html
      2. Social Security Numbers (“SSNs”) and Dates of Birth (“DOBs”). Customer’s receiving full (unmasked) SSNs and DOBs must have a physical site inspection conducted by an approved third- party provider approved by Everi, if any and as applicable. Without a physical site inspection, Customer may only receive partial (masked) SSNs and DOBs
      3. Customer Warranties Customer represents and warrants that it is NOT involved in any of the following industries or business activities:
        1. Investigative companies including private investigators and detective agencies except those licensed for-and exclusively practicing, investigative work for employment purposes.
        2. Bail Bond companies
        3. Dating services
        4. Internet people locator services to locate lost loves, friends, family members, or for personal reasons, such as dating.
        5. Adoption search firms
        6. Diet centers
        7. Credit clinics; credit repair companies; and credit counseling firms
        8. Any fraudulent or illegal activity, such as identity theft, harassment. stalking
        9. Media agencies; news agencies; and journalists
        10. Businesses operating out of a residence
        11. Pornography or related business
        12. Any company or individual who is known to have been involved in credit fraud, or other unethical business practices
        13. Attorney and paralegal firms, other than those whose sole and exclusive practice is collections
        14. Law enforcement (except for employment screening)
        15. Asset location services (does not include collection agencies)
      4. Consumer Protection Laws. The definition of Consumer Protection Laws shall additionally, also expressly include, without limitation, The Driver’s Privacy Protection Act (18 U.S.C. § 2721-2725).
      5. End User Certification of Compliance with California Civil Code- Section 785.14(a).
        1. Section 1785.14(a), as amended, states that a consumer credit reporting agency does not have reasonable grounds for believing that a consumer credit report will only be used for a permissible purpose unless all of the following requirements are met:
        2. Section 1785.14(a), as amended, states that a consumer credit reporting agency does not have reasonable grounds for believing that a consumer credit report will only be used for a permissible purpose unless all of the following requirements are met:or social security number. The categories of information shall not include mother’s maiden name.”
        3. Section 1785.14(a)(2) states: “If the prospective user is a retail seller, as defined in Section 1802.3, and intends to issue credit to a consumer who appears in person on the basis of an application for credit submitted in person, the retail seller must certify, in writing, to the consumer credit reporting agency that it instructs its employees and agents to inspect a photo identification of the consumer at the time the application was submitted in person. This paragraph does not apply to an application for credit submitted by mail.
        4. Section 1785.14(a)(3) states: “If the prospective user intends to extend credit by mail pursuant to a solicitation by mail, the extension of credit shall be mailed to the same address as on the solicitation unless the prospective user verifies any address change by, among other methods, contacting the person to whom the extension of credit will be mailed.”
        5. In compliance with Section 1785.14(a) of the California Civil Code, Customer hereby certifies as follows:
          1. Customer is not a retail seller, as defined in Section 1802.3 of the California Civil Code (“Retail Seller”) and issues credit to consumers who appear in person on the basis of applications for credit submitted in person (“Point of Sale”).
          2. Customer also certifies that if Customer is or becomes a Retail Seller who conducts Point of Sale transactions, Customer will, beginning on or before July 1, 1998, instruct its employees and agents to inspect a photo identification of the consumer at the time an application is submitted in person.
          3. Customer also certifies that it will only use the appropriate Customer code number designated by a Consumer Reporting Agency for accessing consumer reports for California Point of Sale transactions conducted by Retail Seller.
          4. If Customer is not a Retail Seller who issues credit in Point of Sale transactions, Customer agrees that if it, at any time hereafter, becomes a Retail Seller who extends credit in Point of Sale transactions, Customer shall provide written notice of such to the Consumer Reporting Agency prior to using credit reports with Point of Sale transactions as a Retail Seller, and shall comply with the requirements of a Retail Seller conducting Point of Sale transactions, as provided in this certification.
      6. Acknowledgement and Agreement for Consumer Reports. If the services provided involve the use of or access to consumer report information, then the following acknowledgement will apply:
        1. Customer acknowledges that it is a company in the Hospitality/Gaming Industry and has received and read the enclosures contained herein. Customer agrees to familiarize itself with this information, which applies to Customer’s relationship with Everi, and acknowledges its responsibilities as set forth herein, and under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.
        2. Customer understands that all users must have a permissible purpose under the FCRA, to obtain a consumer report. Under the terms of the Agreement, Customer’s permissible purposes are limited to a one-time use of such report for:
          1. the extension of credit as a result of an application from a consumer, or the review or collection of a consumer’s account; and/or
          2. the review of a consumer’s account to determine whether the consumer continues to meet the terms of the account.
        3. The FCRA sets forth that “Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined under title 18, United States Code, imprisoned for not more than 2 years, or both.”
        4. Customer agrees that it shall not request, obtain or use consumer reports for any other purpose including, but not limited to, for the purpose of selling, leasing, renting or otherwise providing information obtained under this Agreement to any other party, whether alone, in conjunction with Customer’s own data, or otherwise in any service which is derived from the consumer reports. The consumer reports shall be requested by, and disclosed by Customer only to Customer’s designated and authorized employees having a need to know and only to the extent necessary to enable Customer to use the consumer reports in accordance with this Agreement. Customer shall ensure that such designated and authorized employees shall not attempt to obtain any consumer reports on themselves, associates, or any other person except in the exercise of their official duties.
        5. Customer understands that it is prohibited from reselling Everi information and bank or credit bureau reports (e.g., Experian, Equifax or TransUnion, each, a “Credit Bureau”) received as result of the provision of services under the Agreement.
        6. Customer may, but is not required to, disclose the report to the subject of the report only in connection with an adverse action based on the report. Moreover, unless otherwise explicitly authorized in an agreement between Everi and Customer for scores obtained from a Credit Bureau, or as explicitly otherwise authorized in advance and in writing by the Credit Bureau providing such score through Everi, Customer shall not disclose to consumers or any third party, any or all such scores provided under such agreement, unless clearly required by law.
        7. Customer will maintain copies of all written authorizations for a minimum of five (5) years from the date of inquiry, and to the extent required by a Credit Bureau, Customer consents to the audit of its compliance with applicable law, including but not limited to the FCRA.
        8. With just cause, such as Customer’s violation of the terms of the Agreement, or as required by law, including but not limited to any material change in existing law or regulations that adversely affect the Agreement, Everi may, upon its election, discontinue serving Customer and cancel the Agreement and the applicable Order immediately.