Tap to Pay on iPhone Platform Terms and Conditions

These Terms and Conditions are a legal agreement between you (“you” or “your”) and Apple Inc. (“Apple”) that governs your use of the Tap to Pay on iPhone Platform to conduct Transactions across all your Enabled Devices. If you do not or cannot agree to these Terms and Conditions, you must not use the Tap to Pay on iPhone Platform. When you agree to these Terms and Conditions, you do so on your own behalf and/or on behalf of your company, organisation, institution, agency, instrumentality or department of the federal, state or local government, as its authorised legal representative.

1. Tap to Pay on iPhone Platform

1.1 Generally

The Tap to Pay on iPhone Platform will enable you to use your Enabled Devices to conduct Transactions through your PSP by the tapping of your customers’ supported contactless cards or mobile wallets (e.g. Apple Pay) against your Enabled Devices.

The Tap to Pay on iPhone Platform may only be available in selected languages and regions, with selected PSPs and Payment Networks. Features may vary by region, PSP and Payment Network. Apple makes no representation that the Tap to Pay on iPhone Platform will be appropriate, accurate or available for use in any particular location or product.

1.2 Eligibility

You may only use the Tap to Pay on iPhone Platform to conduct Transactions that serve bona fide, lawful and commercial purposes, and not for any personal, family or household purposes. To use the Tap to Pay on iPhone Platform, you must: (i) be a Qualified Merchant; and (ii) agree to these Terms and Conditions.

Apple may decline to enable, and may disable, any of your Eligible Apple Products as an Enabled Device for any reason, including, but not limited to, if you are not a Qualified Merchant or not in compliance with these Terms and Conditions or any other terms and conditions between you and Apple. Enabled Devices may be subject to additional restrictions imposed by Apple from time to time.

1.3 Ownership

Apple retains all rights, title and interest in and to the Apple Technology. You agree to cooperate with Apple to maintain Apple’s ownership of the Apple Technology. To the extent that you become aware of any claims relating to the Apple Technology, you agree to use reasonable efforts to promptly provide notice of any such claims to Apple. You agree to retain and reproduce in full the Apple copyright, disclaimers and other proprietary notices (as they appear in the Specifications provided) in all copies of the Specifications that you are permitted to make under these Terms and Conditions. All rights and licences not expressly granted in these Terms and Conditions are reserved, and no other rights, licences or immunity, express or implied, are granted by Apple, by implication, estoppel or otherwise.

1.4 Use Restrictions

You may not, and may not enable others to, Exploit the Tap to Pay on iPhone Platform for any purpose not expressly permitted under these Terms and Conditions, including, but not limited to, by trespass or burdening network capacity, or by harvesting or misusing any data provided by the Tap to Pay on iPhone Platform.

You agree not to use the Tap to Pay on iPhone Platform to conduct Prohibited Transactions or for illegal or fraudulent purposes and acknowledge that conducting any Prohibited Transaction may result in the loss of your status as a Qualified Merchant (including as a result of a change in your good standing status with Apple), suspension of your right to use the Tap to Pay on iPhone Platform or termination of these Terms and Conditions by Apple.

You agree not to interfere with or disrupt the Tap to Pay on iPhone Platform (including by accessing the Tap to Pay on iPhone Platform through any automated means) or any servers or networks connected to the Tap to Pay on iPhone Platform.

You agree not to create, or attempt to create, a substitute or similar service through the use of, or access to, the Tap to Pay on iPhone Platform.

You agree not to sell access to the Tap to Pay on iPhone Platform, to take any action to discourage customers from performing Transactions or take any other action that otherwise puts Transactions at a disadvantage relative to payment transactions conducted using other methods.

You agree to only access the Tap to Pay on iPhone Platform through a softPOS Mobile App and only for use on Enabled Devices in accordance with the Specifications and these Terms and Conditions.

To the extent that you access or receive Tap to Pay on iPhone Cardholder Data, you agree to use the Tap to Pay on iPhone Cardholder Data solely to enable processing of the corresponding Transaction in accordance with Applicable Law.

If you breach your obligations under these Terms and Conditions, including any of the foregoing requirements or restrictions, you may be subject to prosecution and damages.

1.5 Updates

Apple may, without prior notice to you, but has no obligation (express or implied) to, extend, enhance, update or otherwise modify the Tap to Pay on iPhone Platform (or any part thereof), including by removing any feature or functionality thereof. If any such changes are made by Apple, these Terms and Conditions will govern such changes. You acknowledge and agree that such updates may affect your ability to use, access or interact with the Tap to Pay on iPhone Platform.

2. Apple’s Relationship with You

Tap to Pay on iPhone Platform enables you to conduct Transactions using your Enabled Device; however, Apple does not process payment transactions or other non-payment transactions (such as reward accruals and redemptions), and Apple does not receive, hold or transfer your funds, or have any other control over payments, returns, refunds, rewards, value, discounts, access or other commercial activity that may arise out of your use of the Tap to Pay on iPhone Platform.

You agree that all information provided by you to Apple, in connection with your use of the Tap to Pay on iPhone Platform, will be current, true, accurate, supportable and complete. Furthermore, you agree that Apple may share such information (including email address and mailing address) with third parties who have a need to know for purposes related thereto (e.g. intellectual property questions, customer service inquiries).

For any issues or enquiries regarding your use of the Tap to Pay on iPhone Platform, please contact Apple at tap-to-pay-support@apple.com. 

3. Your PSP’s Relationship with You

You will at all times be party to a PSP Agreement with a PSP authorised by Apple to support merchants using the Tap to Pay on iPhone Platform. The terms of your PSP Agreement will govern your use of your PSP Account and its use in connection with Tap to Pay on iPhone Platform.

Your PSP will be solely responsible for the establishment and management of its relationship with you in connection with your PSP Account, including, but not limited to: (i) onboarding and underwriting you (e.g. performing know your customer and other anti-money laundering checks); and (ii) providing all PSP Services to you. If your PSP is no longer authorised by Apple, or is in breach of or no longer party to an agreement with Apple through which it uses the Tap to Pay on iPhone Platform to provide the PSP Services to you, Apple may require that you enter into a PSP Agreement with a different PSP to continue to use the Tap to Pay on iPhone Platform. 

You represent and warrant to Apple that you have authorised your PSP to provide to Apple and its Affiliates data related to your use of the Tap to Pay on iPhone Platform, including, without limitation, information about your PSP Account (such disclosures being referred to herein as “Merchant Disclosures”). To the extent that Merchant Disclosures contain any Personal Data, Apple will process such information solely in accordance with the documented instructions of your PSP. You hereby grant Apple and its Affiliates the right and licence to use any Merchant Disclosures for: (i) purposes of Apple performing its obligations and exercising its rights under these Terms and Conditions and improving the Tap to Pay on iPhone Platform; and (ii) any other purposes not prohibited by Applicable Law.

For all disputes or questions about the PSP Services, your PSP Account or associated commerce activity, please contact your PSP or the provider of your softPOS Mobile App.

4. Security; Lost or Disabled Devices

Providing your Enabled Device passcode to a third party or allowing a third party to enable Face ID or to add their fingerprint to use Touch ID may result in their ability to conduct Transactions using the Tap to Pay on iPhone Platform on your Enabled Device. You are solely responsible for maintaining the security of your Enabled Device and passcode.

If your Enabled Device is lost or stolen and you have Find My iPhone enabled, you agree to attempt to mitigate the risk of unauthorised access to the Enabled Device by putting it into “Lost Mode”. You also agree to attempt to erase your Enabled Device via your iCloud account.

You may need to enable additional security measures to access particular features of the Tap to Pay on iPhone Platform. If you subsequently remove those security measures, you may not be able to continue to access particular features of the Tap to Pay on iPhone Platform.

You agree to cooperate with your PSP in order to prevent Unauthorised Transactions through, and resolve errors with, your PSP Account.

If you report or Apple suspects fraudulent or abusive activity, you agree to cooperate with Apple in any investigation and to use any fraud prevention measures Apple prescribes.

5. Confidentiality

5.1 Information Deemed Apple Confidential Information

You agree that Apple Metrics and any and all information related to the Tap to Pay on iPhone Platform that is obtained, generated or created by or on behalf of Apple will be deemed “Apple Confidential Information”. Notwithstanding the foregoing, Apple Confidential Information will not include: (i) information that is generally and legitimately available to the public through no fault or breach of yours; (ii) information that is generally made available to the public by Apple; (iii) information that is independently developed by you without the use of any Apple Confidential Information; or (iv) information that was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation.

5.2 Obligations Regarding Apple Confidential Information

You agree to protect Apple Confidential Information using at least the same degree of care that you use to protect your own confidential information of similar importance, but no less than a reasonable degree of care. You agree to use Apple Confidential Information solely for the purpose of exercising your rights and performing your obligations under these Terms and Conditions and agree not to use Apple Confidential Information for any other purpose, including for your own or any third party’s benefit, without Apple’s prior written consent. You further agree not to disclose or disseminate Apple Confidential Information, including Apple Metrics that do not specifically reference the Tap to Pay on iPhone Platform but enable recipients to reasonably infer Apple Confidential Information from such Apple Metrics, to anyone other than: (i) those of your employees and contractors, who have a need to know and who are bound by a written agreement that prohibits unauthorised use or disclosure of the Apple Confidential Information; or (ii) except as otherwise agreed or permitted in writing by Apple. You may disclose Apple Confidential Information to the extent required by Applicable Law, provided that you take reasonable steps to notify Apple of such requirement before disclosing the Apple Confidential Information and to obtain protective treatment of the Apple Confidential Information. Notwithstanding the foregoing, you may disclose overall mobile payment, purchase and other transactions or other metrics that incorporate Apple Metrics where such Apple Metrics are not segregated or identified and cannot easily be discerned or inferred from the metrics shared by you. You acknowledge that damages for improper disclosure of Apple Confidential Information may be irreparable; therefore, Apple is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.

5.3 Tap to Pay on iPhone Feedback

Notwithstanding anything to the contrary in these Terms and Conditions, to the extent that you provide or have provided any ideas, requests, feedback, reports, suggestions or recommendations to Apple, in writing, orally, by demonstration or otherwise, regarding Apple’s Confidential Information or the Tap to Pay on iPhone Platform (collectively “Tap to Pay on iPhone Feedback”), you hereby grant to Apple an exclusive (including with respect to you), fully paid-up, perpetual, irrevocable, worldwide licence to Exploit such Tap to Pay on iPhone Feedback in connection with Apple’s products and services. You agree that providing this Tap to Pay on iPhone Feedback has been and is voluntary.

6. Data Protection & Security Breaches

You will: (i) provide clear and complete information to your customers regarding your Processing of their Personal Data in connection with your use of the Tap to Pay on iPhone Platform; (ii) take appropriate steps to protect Personal Data Processed in connection with your use of the Tap to Pay on iPhone Platform from unauthorised access, use or disclosure; and (iii) comply with all Applicable Law regarding privacy and data protection with respect to any Processing of Personal Data in connection with your use of the Tap to Pay on iPhone Platform. If you cease to have a valid legal basis for the Processing of customer Personal Data in connection with your use of the Tap to Pay on iPhone Platform, you must promptly cease all such Processing. Furthermore, you will implement administrative, technical and physical safeguards designed to protect against reasonably anticipated threats or hazards to the security, integrity or confidentiality of Personal Data collected, use or disclosed in connection with your use of the Tap to Pay on iPhone Platform. Upon discovering an actual or suspected breach of your security measures relating to any such Personal Data or Apple Confidential Information (a “Security Breach”), you will investigate, remediate and mitigate the effects of the Security Breach. In the event of legal proceedings, including, but not limited to, regulatory investigations or litigation, following or resulting from a Security Breach, you will (at Apple’s request) provide Apple with reasonable assistance and support in responding to such proceedings.

7. Your Marks

7.1 Licence

Subject to these Terms and Conditions, you hereby grant Apple and its Affiliates (and their agents and contractors acting on their behalf), during the Term, a personal, non-exclusive, non-sublicensable, non-transferable, worldwide, royalty-free licence to use, reproduce and display your Marks as follows:

(i) in connection with your use of the Tap to Pay on iPhone Platform;

(ii) in the marketing, advertising and promotion of the availability of the Tap to Pay on iPhone Platform in any medium, including the right to use, if applicable, screen shots of your softPOS Mobile Apps and images of your Marks as they may be used in the Tap to Pay on iPhone Platform, including but not limited to use in instructional materials, training materials, marketing materials and standard advertising in any medium; and

(iii) in a publicly disclosed list of the Tap to Pay on iPhone Platform participants.

You will be responsible for procuring all rights necessary for the presentation of any of your Marks.

7.2 Rights in Your Marks

You retain your right, title and interest in your Marks, and all associated goodwill. All goodwill arising from use of your Marks by Apple and its Affiliates will inure to the benefit of you. Apple and its Affiliates will not adopt, use or register any corporate name, trade name, trademark, domain name, service mark or trademark that includes or incorporates any of your Marks or any term confusingly similar to any of your Marks.

8. Term, Termination and Suspension

8.1 Term

These Terms and Conditions will commence on the Effective Date and remain in effect until terminated in accordance with Section 8.2 (Termination) (the “Term”).

8.2 Termination

Either party may terminate these Terms and Conditions at any time, for any reason or no reason, effective thirty (30) days after providing notice to the other Party of its intent to so terminate. 

8.3 Suspension

Apple may suspend your right to use the Tap to Pay on iPhone Platform, effective immediately upon providing notice to you, in the event of (i) your breach of these Terms and Conditions, (ii) suspension of your PSP Account, (iii) actual or suspected fraud with your PSP Account, (iv) suspension or termination of your PSP’s participation on the Tap to Pay on iPhone Platform; (v) loss or theft of your Enabled Device; or (vi) any other event that Apple reasonably determines may jeopardise the security of the Tap to Pay on iPhone Platform. In addition, Apple may suspend your right to use the Tap to Pay on iPhone Platform at any time, for any reason or no reason, effective thirty (30) days after providing notice to you of Apple’s intent to so suspend.

8.4 Termination or Suspension of PSP Agreement

In connection with Apple’s exercise of any rights to suspend your use of the Tap to Pay on iPhone Platform or terminate these Terms and Conditions, you acknowledge and agree that Apple may request your PSP to suspend or terminate the PSP Agreement with respect to the provision of PSP Services in connection with your use of the Tap to Pay on iPhone Platform.

8.5 Effect of Termination

Except as expressly permitted by Apple, upon termination of these Terms and Conditions, you will immediately cease all use of the Tap to Pay on iPhone Platform and erase and destroy all copies, full or partial, of any Specifications in your possession or control.

8.6 Survival

All terms and provisions of these Terms and Conditions, including any and all attachments, exhibits, addendums, schedules and amendments hereto, which by their nature are intended to survive any termination or expiry of these Terms and Conditions, will so survive, including the provisions of Sections 1.3 (Ownership), 5 (Confidentiality), 7.2 (Rights in Your Marks), 8.5 (Effect of Termination), 10 (Indemnification), 11 (Limitation of Liability; Disclaimers) and 12 (General Legal Terms) hereof and this Section 8.6 (Survival). Apple will not be liable for compensation, indemnity or damages of any sort as a result of terminating these Terms and Conditions in accordance with their terms, and termination of these Terms and Conditions will be without prejudice to any other right or remedy Apple may have, now or in the future.

9. Compliance

You will comply with all Applicable Law and applicable Payment Network rules and mandates related to your use of the Tap to Pay on iPhone Platform. You also agree that the Tap to Pay on iPhone Platform may not be used: (i) in any US embargoed countries; or (ii) by anyone on the US Treasury Department’s list of Specially Designated Nationals or the US Department of Commerce’s Denied Persons List or Entity List or any other restricted party lists. By using the Tap to Pay on iPhone Platform, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Tap to Pay on iPhone Platform for any purposes prohibited by Applicable Law, including, without limitation, the development, design, manufacture or production of nuclear, missile, chemical or biological weapons.

10. Indemnification

To the extent permitted by Applicable Law, you agree to defend (at Apple’s request), indemnify and hold Apple, its directors, officers, employees, independent contractors and agents (each an “Apple Indemnified Party”) harmless from any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, attorneys’ fees and court costs (collectively, “Losses”), incurred by an Apple Indemnified Party and arising from or related to any of the following: (i) your use of the Tap to Pay on iPhone Platform, including but not limited to any Prohibited Transactions or Unauthorised Transactions, any customer claims regarding your goods or services and donations collected in connection with your use of the Tap to Pay on iPhone Platform, (ii) a Security Breach; (iii) your violation of Applicable Law, applicable Payment Network rules or mandates, or these Terms and Conditions; (iv) your negligence or wilful misconduct; or (v) Apple’s permitted use of your Marks and other materials that you provide to Apple or its Affiliates under these Terms and Conditions. Apple reserves the right, at your expense, to exclusively defend (including by assuming the exclusive defence) and control any matter for which you are required to indemnify Apple under this Section 10 (Indemnification), and you agree to cooperate with Apple’s defence of these claims.

11. Limitation of Liability; Disclaimers

11.1 Transaction Verifications

You or, if applicable, your PSP (and not Apple) will be solely responsible for verifying the validity of Transactions accepted via the Tap to Pay on iPhone Platform prior to the delivery of any goods or services to your customer. Apple has no responsibility to verify any such Transactions and will not be liable for your or your PSP’s failure to verify the validity of such Transactions.

11.2 No Apple Liability for Unauthorised Transactions or Errors

Apple will not be liable under any circumstances for any Unauthorised Transactions or erroneous Transactions.

11.3 No Support or Maintenance

Apple is not obliged to provide any maintenance, technical or other support related thereto. Apple does not guarantee the uptime, availability, accuracy, completeness, reliability or timeliness of any data or information displayed in connection with the Tap to Pay on iPhone Platform. To the extent that you choose to use the Tap to Pay on iPhone Platform, you are responsible for your reliance on any such data or information. It is your responsibility to maintain appropriate alternative backup of all content, information and data, including, but not limited to, any content that you may provide to Apple in connection with your use of the Tap to Pay on iPhone Platform.

11.4 Apple Not Responsible for Lost or Shared Enabled Devices or Unauthorised Modifications to Apple Technology

You agree that Apple does not have any responsibility if you lose or share access to your Enabled Device. You agree that Apple does not have any responsibility if you make unauthorised modifications to the Apple Technology, such as by disabling hardware or software controls (sometimes referred to as “jailbreaking”). If you engage in jailbreaking, your Enabled Device will no longer be eligible to access or use the Tap to Pay on iPhone Platform. You acknowledge that the use of a modified Enabled Device in connection with the Tap to Pay on iPhone Platform is expressly prohibited, constitutes a violation of these Terms and Conditions, and is grounds for Apple to deny or limit your access to the Tap to Pay on iPhone Platform.

11.5 Apple Not Responsible for PSP Services

Notwithstanding anything to the contrary in these Terms and Conditions, under no circumstances will Apple have any responsibility for the PSP Services or for any responsibilities reserved to your PSP as described in Section 3 (Your PSP’s Relationship with You).

11.6 No Warranty

The Tap to Pay on iPhone Platform may contain inaccuracies or errors that could cause failures or loss of data and it may be incomplete. Apple and its licensors reserve the right to change, suspend, remove or disable access to the Tap to Pay on iPhone Platform (or any part thereof) at any time without notice. In no event will Apple or its licensors be liable for the removal or disabling of access to the Tap to Pay on iPhone Platform (or any part thereof). Apple or its licensors may also impose limits on the use of or access to the Tap to Pay on iPhone Platform (or any part thereof) or may remove the Tap to Pay on iPhone Platform (or any part thereof) for indefinite time periods or cancel the Tap to Pay on iPhone Platform (or any part thereof) at any time and in any case and without notice or liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE TAP TO PAY ON IPHONE PLATFORM IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THE TAP TO PAY ON IPHONE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLE AND APPLE’S AFFILIATES AND AGENTS (COLLECTIVELY REFERRED TO AS “APPLE” FOR THE PURPOSES OF THIS SECTION 11.6 (NO WARRANTY) AND SECTION 11.7 (LIMITATION OF LIABILITY)) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE TAP TO PAY ON IPHONE PLATFORM, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. APPLE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE TAP TO PAY ON IPHONE PLATFORM, THAT THE TAP TO PAY ON IPHONE PLATFORM WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE TAP TO PAY ON IPHONE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS OR ERRORS IN THE TAP TO PAY ON IPHONE PLATFORM WILL BE CORRECTED, OR THAT THE TAP TO PAY ON IPHONE PLATFORM WILL BE COMPATIBLE WITH FUTURE APPLE PRODUCTS, SERVICES OR SOFTWARE OR ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR SERVICES, OR THAT ANY INFORMATION STORED OR TRANSMITTED THROUGH THE TAP TO PAY ON IPHONE PLATFORM WILL NOT BE LOST, CORRUPTED OR DAMAGED. YOU ACKNOWLEDGE THAT THE TAP TO PAY ON IPHONE PLATFORM IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE ERRORS, DELAYS, FAILURES OR INACCURACIES IN THE TRANSMISSION OR STORAGE OF DATA OR INFORMATION BY OR THROUGH THE TAP TO PAY ON IPHONE PLATFORM COULD LEAD TO DEATH, PERSONAL INJURY OR FINANCIAL, PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE, INCLUDING, WITHOUT LIMITATION, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLE OR AN APPLE AUTHORISED REPRESENTATIVE WILL CREATE A WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS. SHOULD THE TAP TO PAY ON IPHONE PLATFORM PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

11.7 Limitation of Liability

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL APPLE BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, YOUR USE OF, OR INABILITY TO USE, THE TAP TO PAY ON IPHONE PLATFORM, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR OTHERWISE, EVEN IF APPLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. In no event will Apple’s total liability to you under these Terms and Conditions for all damages (other than as may be required by Applicable Law in cases involving personal injury) exceed the amount of fifty dollars ($50.00).

12. General Legal Terms

12.1 Processing of Data

In order to test, provide and improve Apple’s products and services, you acknowledge that Apple and its Affiliates and agents may be Processing diagnostic, technical, usage and related information about your use of the Tap to Pay on iPhone Platform in a form that does not personally identify you. By accessing or using the Tap to Pay on iPhone Platform, you acknowledge and agree that Apple and its Affiliates and agents have your permission to Process any and all such information and use it as set forth in this Section 12.1 (Processing of Data). Furthermore, you agree that Apple may share the diagnostic, technical and usage logs and information (excluding personally identifiable information) with partners and third-party developers for purposes of allowing them to improve their products and services that operate on or in connection with Apple-branded products. Apple’s Processing of Personal Data is governed by the Apple Privacy Policy, available at https://www.apple.com/au/legal/privacy/, which is incorporated by reference into these Terms and Conditions. You can find detailed information on the Personal Data Processed as part of your use of Tap to Pay on iPhone Platform by reading the relevant service specific privacy notices, including About Tap to Pay on iPhone Privacy, which can be accessed on your Enabled Device or by visiting https://www.apple.com/au/legal/privacy/data/.

12.2 Independent Development

Nothing in these Terms and Conditions will impair Apple’s right to develop, acquire, license, market, promote or distribute products or technologies that perform the same or similar functions as, or otherwise compete with, if applicable, your softPOS Mobile Apps or any other products, services or technologies that you may develop, produce, market or distribute. These Terms and Conditions will not be construed as creating any agency relationship or a partnership, joint venture, fiduciary duty or any other form of legal association between you and Apple, and you will not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms and Conditions are not for the benefit of any third parties.

12.3 Assignment

These Terms and Conditions may not be assigned, nor may any of your obligations under these Terms and Conditions be delegated, in whole or in part, by you by operation of law, merger or any other means without Apple’s express prior written consent, and any attempted assignment without such consent will be null and void.

12.4 Notices

Any notices relating to these Terms and Conditions will be in writing. Notices will be deemed given by Apple when sent to you in accordance with the Electronic Communications Terms. All notices to Apple relating to these Terms and Conditions will be deemed given (i) when delivered personally, (ii) three (3) business days after having been sent by commercial overnight carrier with written proof of delivery, and (iii) five (5) business days after having been sent by first class or certified mail, postage prepaid, to Apple Inc., One Apple Park Way, Cupertino, California, 95014, USA.

12.5 Severability

If a court of competent jurisdiction finds any clause of these Terms and Conditions to be unenforceable for any reason, that clause of these Terms and Conditions will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms and Conditions will continue in full force and effect.

12.6 Waiver

Failure by Apple to enforce any provision of these Terms and Conditions will not be deemed a waiver of future enforcement of that or any other provision.

12.7 Interpretation

Any laws or regulations that provide that the language of a contract will be construed against the drafter will not apply to these Terms and Conditions. Section headings are for convenience only and are not to be considered in construing or interpreting these Terms and Conditions.

12.8 Changes to These Terms and Conditions

Apple may modify or otherwise change these Terms and Conditions from time to time in its sole discretion. Apple will provide you with notice of any such changes to these Terms and Conditions in accordance with the Electronic Communications Terms. Subject to Applicable Law, your continued use of the Tap to Pay on iPhone Platform following such notice will be deemed to be your acceptance of such modified version of these Terms and Conditions. 

12.9 Dispute Resolution; Governing Law

These Terms and Conditions, and any non-contractual obligations and the relationships between the parties arising out of or in connection with these Terms and Conditions, will be governed by, construed and take effect in accordance with the laws of the State of Delaware law without regard to its choice of law principles. Any action or proceeding between the parties relating to these Terms and Conditions will take place in the County of Santa Clara in the State of California; both parties hereby waive any objection to personal jurisdiction or venue in any forum located in the County of Santa Clara in the State of California. These Terms and Conditions will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

12.10 Entire Agreement

13. Definitions

Whenever capitalised in these Terms and Conditions:

• “Acceptable Use Guidelines” means the guidelines for the Tap to Pay on iPhone Platform set forth in Exhibit A attached hereto, as may be amended by Apple from time to time.

• “Affiliate” means, as to any Person, another Person that controls, is controlled by or is under common control with such first Person. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, but not by way of limitation, the direct and indirect ownership of more than 50% of: (i) the voting securities; or (ii) an interest in the assets, profits or earnings of a Person, will be deemed to constitute “control” of the Person. The term “controlled” has the correlative meanings.

• “Apple Confidential Information” has the meaning set forth in Section 5.1 (Information Deemed Apple Confidential Information).

• “Apple Indemnified Party” has the meaning set forth in Section 10 (Indemnification).

• “Apple Mark” means any Mark, registered or unregistered, directly or indirectly owned by or licensed to Apple and Apple Affiliates anywhere in the world, including, without limitation, each of the Marks listed at https://www.apple.com/legal/intellectual-property/trademark/appletmlist.html, as may be amended by Apple from time to time.

• “Apple Metrics” means any metrics regarding the usage, performance and Transaction-level information of the Tap to Pay on iPhone Platform in any format or context, including aggregate or segmented data from which the metrics regarding the Tap to Pay on iPhone Platform can reasonably be inferred.

• “Apple Product” means any Technology, product or service distributed under an Apple Mark or used internally by Apple or an Apple Affiliate.

• “Apple Technology” means Technology (and all intellectual property rights therein or thereto) that Apple or any Apple Affiliate owned, conceived, reduced to practice, authored or otherwise discovered, created or developed prior, on or subsequent to the Effective Date, the foregoing occurring separately and independently of you and your Affiliates.

• “Applicable Law” means all laws (including common law), codes, statutes, rules, regulations, published standards, permits, judgements, writs, injunctions or rulings, published regulatory bulletins or orders or decrees of any Governmental Authority, as may be amended and in effect from time to time, related to the subject matter of these Terms and Conditions and that apply to or are binding upon you or Apple in the applicable jurisdiction in the Territory, including, but not limited to, all laws relating to the protection of Personal Data.

• “Effective Date” means the date on which you agree to these Terms and Conditions.

• “Electronic Communications Terms” means the terms and conditions set forth in Exhibit B attached hereto.

• “Eligible Apple Product” means an iPhone or other Apple Product determined by Apple from time to time that runs a version of iOS that supports the Tap to Pay on iPhone Platform.

• “Enabled Device” means any Eligible Apple Product that has been enabled by Apple to allow you to accept payments and conduct transactions via the Tap to Pay on iPhone Platform.

• “Exploit” means develop, design, make, have made, use, practise, license, sublicense (through multiple tiers), sell, offer to sell, import, export, reproduce, modify, create derivative works of, display, perform, transmit, distribute, make available or accessible, dispose of and otherwise exploit.

• “Governmental Authority” means any domestic or foreign, federal, state, provincial, municipal or local government, any political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, regardless of form, including any agency, bureau, court, tribunal or other instrumentality having jurisdiction over the Tap to Pay on iPhone Platform, you or Apple, or any of their respective Affiliates.

• “Losses” has the meaning set forth in Section 10 (Indemnification).

• “Marks” means all trademarks, service marks, trade dress, trade names, logos, taglines, slogans, product names, any other similar intellectual property rights, registered or unregistered anywhere in the world.

• “Merchant Disclosures” has the meaning set forth in Section 3 (Your PSP’s Relationship with You).

• “Payment Network” means any one or more of Visa, Mastercard, Discover, American Express or any other network that has entered into an agreement with Apple for the purpose of permitting businesses and/or consumers to engage in contactless card transactions via the Tap to Pay on iPhone Platform.

• “Person” means any individual, corporation, limited liability company, partnership, firm, joint venture, association, trust, unincorporated organisation, Governmental Authority or other entity.

• “Personal Data” means information relating to an identified or identifiable individual.

• “Processing” means an operation or set of operations performed on data, including Personal Data, such as collection, use, access, analysis, maintenance, transmission, disclosure or deletion.

• “Prohibited Transaction” means any Transaction prohibited under the Acceptable Use Guidelines.

• “PSP” means an acquirer, payment service provider or other payment facilitator/aggregator that (a) has entered into an agreement with Apple for the use of the Tap to Pay on iPhone Platform by its merchants and (b) is licensed or authorised by a Payment Network within the applicable jurisdiction in the Territory who contracts with merchants to: (i) enable cardholders to make purchase transactions for merchants’ goods or services; and (ii) facilitate the authorisation, clearance and settlement of such transactions through the applicable Payment Network(s).

• “PSP Account” means an account with the PSP in the applicable jurisdiction in the Territory under which you may conduct payment, purchase or other transactions pursuant to your PSP Agreement.

• “PSP Agreement” means the agreement between a PSP and you governing the establishment and management of your account with the PSP in the applicable jurisdiction in the Territory under which you may conduct Transactions.

• “PSP Services” mean the services, including processing, clearing and settling Transactions, provided by PSP to you to enable you to conduct Transactions.

• “Qualified Merchant” means a merchant that: (i) has an active Registered Apple Account that is in good standing with Apple; (ii) has an Eligible Apple Product; and (iii) is party at all times to a PSP Agreement.

• “Registered Apple Account” means your Apple Account that is registered with the Tap to Pay on iPhone Platform.

• “Security Breach” has the meaning set forth in Section 6 (Data Protection & Security Breaches).

• “softPOS” has the meaning set forth in the definition of “Tap to Pay on iPhone Platform”.

• “softPOS Mobile App” means any iOS software application that: (i) is developed by a Person that has entered into an agreement with Apple, as required by Apple from time to time, relating to such Person’s development of an iOS software application; (ii) is approved by Apple; and (iii) is used by you for the purpose of conducting Transactions.

• “Specifications” means all specifications, documentation, guidelines and requirements associated with the Tap to Pay on iPhone Platform, including, but not limited to, the Tap to Pay on iPhone Platform implementation and operating guidelines, provided or made available by Apple to you, as the same may be updated or supplemented by Apple from time to time.

• “Tap to Pay on iPhone Cardholder Data” means data about your customer (e.g. primary account number, transaction amount) passed through the Tap to Pay on iPhone Platform as part of a Transaction.

• “Tap to Pay on iPhone Feedback” has the meaning set forth in Section 5.3 (Tap to Pay on iPhone Feedback).

• “Tap to Pay on iPhone Platform” means the software-based point of sale (“softPOS”) platform that utilises Apple Technology to enable you to accept payments, conduct transactions and access related services using Apple Products designated by Apple or its Affiliates.

• “Technology” means any information, ideas, know how, designs, drawings, specifications, schematics, software programs (including source and object codes), manuals and other documentation, data, databases, processes (including technical processes and business processes) or methods (including methods of operation and methods of production).

• “Term” has the meaning set forth in Section 8.1 (Term).

• “Territory” means the country, territory or region in which you are permitted by Apple to use the Tap to Pay on iPhone Platform.

• “Transaction” means any payment, purchase or other transaction, including an account funding transaction, adjustment, chargeback or merchandise return, conducted on an Enabled Device via the Tap to Pay on iPhone Platform, regardless of whether such transaction is approved, declined or subject to an adjustment, chargeback or merchandise return, if any.

• “Unauthorised Transaction” means any Transaction initiated by a Person that is not authorised to make a Transaction, including any fraudulent Transaction.

Exhibit A

Acceptable Use Guidelines for the Tap to Pay on iPhone Platform

You will not conduct any Transaction that:

• Violates any law or otherwise fails to comply with Applicable Law;

• Involves:

• Illegal drugs or non-legally prescribed controlled substances;
• Items that create consumer safety risks;
• Items that are intended to be used to engage in illegal activities;
• Counterfeit or stolen goods;

• Promotes hate, violence or intolerance based on race, age, gender, gender identity, ethnicity, religion or sexual orientation;

• Constitutes fraud;

• Infringes or violates the intellectual property, publicity or privacy rights of another; or

• Shows Apple or its products in a false or derogatory light.
  
  

Apple reserves the right at any time to disable the Tap to Pay on iPhone Platform on your Enabled Device for any reason it deems prudent, including if you use an Enabled Device to conduct a Transaction prohibited by these Acceptable Use Guidelines.

Exhibit B

Electronic Communications Terms

Apple and its respective designees may need to provide you with certain information, agreements, notices or disclosures in writing in connection with your use of the Tap to Pay on iPhone Platform (as defined in the Terms and Conditions to which this Exhibit is attached) (each, a “Communication”). By agreeing to the Terms and Conditions, you are confirming your ability, and providing your consent, to receive Communications electronically from Apple and its service providers and Affiliates instead of in paper form and to the use of electronic signatures in its relationship with you. Without limiting the foregoing, you further agree that Communications may be provided to you via email, text message or iOS notifications, or other electronic notification methods supported by the software you use to access the Tap to Pay on iPhone Platform. Any terms that are capitalised but not defined in this Exhibit B have the meaning given to them in the Terms and Conditions.

Apple’s ability to provide Communications to you electronically is dependent upon you maintaining a valid email address. Apple may send Communications to the email address that is associated with your Registered Apple Account. Therefore, you agree to maintain a valid email address associated with your Registered Apple Account for as long as you use the Tap to Pay on iPhone Platform. In the event that Communications are provided to you via email, via text message, within an application or via the software you use to access the Tap to Pay on iPhone Platform, it is your responsibility to review those Communications. Apple and its designees may, at Apple’s discretion, mail paper copies of Communications to you in addition to or instead of sending them to you electronically.

You understand and agree that: (i) the Terms and Conditions will be entered into electronically; (ii) you meet the minimum hardware and software requirements specified below; (iii) your consent to receive Communications electronically will remain valid until you withdraw your consent by terminating the Terms and Conditions; and (iv) Communications that may be provided electronically include, but are not limited to, the following:

• The Terms and Conditions, including changes to and updated versions of the Terms and Conditions;
• Information regarding your use of the Tap to Pay on iPhone Platform; and
• Any notices that Apple is required to provide to you under these Terms and Conditions.

In order to receive Communications, you must meet the following hardware and software requirements:

• Have an Eligible Apple Product that has internet access through a wireless operator (a “Communications Device”);
• Have a version of iOS that supports the Tap to Pay on iPhone Platform installed on your Communications Device; and
• Have a valid email address associated with your Registered Apple Account.

In order to retain Communications, you will need the ability to electronically store or print Communications, including from your Communications Devices. Apple may change these requirements from time to time.

Consent to receiving electronic Communications is a requirement of being able to access and use the Tap to Pay on iPhone Platform. Except as may be required by Applicable Law, you do not have the option to request Communications in paper or non-electronic form. You can only withdraw your consent by terminating the Terms and Conditions. For information on terminating the Terms and Conditions, please see Section 8.2 (Termination) thereof.