Please carefully read the terms and conditions of this Poynt Operating System (OS) End-User License agreement (the “License”) before using the Software and/or POS Products.

This License is a legal, binding and enforceable contract between you and Poynt, LLC, a company duly organized and validly existing under the laws of Delaware (“Poynt”, “we” and “us”).

By clicking on the “I AGREE” button, installing, activating or using the Software and/or POS Products, or otherwise indicating your assent to these terms and conditions, you acknowledge and agree that you have read and understood this License and that you agree to its terms. You must agree to and accept all of the terms and conditions of the License, or you do not have the right to use the Software and/or POS Products.

Your use of the Software and/or POS Products in any way means that you agree to all of such terms and conditions, and the License will remain in effect while you use the Software and/or POS Products.

Please note that other terms and conditions may apply between you and a Reseller (where applicable) and you may have rights and remedies under those terms and conditions.

Important Notice: Redistribution is not permitted. The Software, POS Products, Documentation, interfaces, content and any data accompanying this License whether pre-installed on a Poynt Terminal or downloaded onto another authorized Terminal are licensed, not sold, to you by Poynt for use only under the terms of this License. Poynt and Poynt's licensors retain ownership of the Software and/or POS Products itself and reserve all rights not expressly granted to you. The terms of this License will govern any Software and/or POS Products upgrade we provide you to replace and/or supplement the original Software and/or POS Products, unless such upgrade is accompanied by separate license terms in which case these new terms will apply in relation to the upgrade.

1. License

1.1 Subject to your compliance with this License and in consideration of the fees paid and payable by you for use of the Terminal, POS Products, and Software, Poynt grants you (either a legal entity or an individual) a non-exclusive, non-transferable, limited license to use the POS Products and/or Software (and corresponding Documentation) solely in conjunction with the designated Terminal(s), in accordance with the terms of this License and during the term of your agreement for the Terminal(s).

You, as the authorized merchant, agree to use the Software only on the designated Terminal in accordance with this License. You agree to load and use the Poynt activation codes before using the Software and only into the Terminal that has been licensed to operate the Software. You acknowledge that each activation code is intended to associate a single Terminal with such licensed Software and will not be used to associate such Terminal(s) with any other program or platform unless otherwise expressly and previously authorized by Poynt or a Reseller (if applicable) in writing. You further acknowledge and agree that you are solely responsible for maintaining the confidentiality of all activation codes.

1.2 You agree to ensure that only your employees, contractors, agents or other parties working on your behalf ("Authorized User") will use the Software and/or POS Products and that such Authorized Users are notified of the terms and conditions of this License prior to using the Software and/or POS Products. You will also ensure that all use of the Software and/or POS Products by such Authorized Users is in accordance with the terms of the License.

1.3 This License for the Software and/or POS Products is conditioned upon payment of any applicable License fees due hereunder. Unless otherwise expressly agreed, this License will apply to any updates or upgrades of the Software and/or POS Products that may be made available to you.

1.4 If you use the Software and/or POS Products to sell goods or services at your merchant business and use a payment system other than credit or debit card, then your use of the Software and/or POS Products may be dependent on additional terms and conditions.

2. Poynt App Center and Commerce Home

• 2.1. The Software may enable you to access our marketplace ("Poynt App Center") through which you may download and/or access other Poynt and/or third party services, apps, content, information, data and/or links to third party websites ("Third Party Materials and Services").
  • 2.1.1. By using the Poynt App Center you agree to the latest Poynt App Center terms and conditions, which you may access by clicking on [here](https://www.godaddy.com/legal/agreements/godaddy-poynt-app-center-eula) and acknowledge that your use of these Third Party Materials and Services may require you to accept additional terms and may be subject to additional fees.
  • 2.1.2. You understand and agree that Poynt, its officers, affiliates and subsidiaries have no control of, assume no liability for and do not provide any warranty (including in relation to accuracy, availability completeness, validity, quality or any other aspect of such services/materials) or other similar assurance for any such Third Party Materials and Services. Therefore, except as otherwise provided by Applicable Law, or as agreed with Poynt pursuant to a separate agreement, all Third Party Materials and Services are made available and provided “as is” and “as available,” without condition, endorsement, guarantee, representation or warranty of any kind by Poynt, and subject to the relevant provider's then-current applicable charges, terms and policies.
• 2.2. Poynt provides you with an interactive user interface through which you may view information about and manage certain POS Products (“Commerce Home”). To the extent you access Commerce Home, your use is subject to the Commerce Home Terms of Use, which are incorporated herein by reference.

3. Transactions

3.1 While processing a transaction, you may use the Terminal and the Software for the capture and submission of Transaction Data and Cardholder Data only.

3.2 You acknowledge and agree that:

1. Poynt's role is to capture and securely transmit Transaction Data and Cardholder Data to your acquiring service provider;
2. Poynt is not responsible for authorizing card payment transactions and Poynt does not at any time come into possession of the funds to be transferred;
3. Poynt is providing its services as a technical service provider in support of the provision of payment services provided to you by your acquiring service provider (and such payment services will be subject to your acquiring service provider's terms and conditions (“Acquiring Service Provider Terms”), and in the case of third-party electronic wallet payments the following terms and conditions with Poynt will apply in addition to the terms of this License Poynt’s Transaction Processing Policy) and in some cases Poynt may, in this capacity, be routing the Transaction Data and Cardholder Data through the Poynt Gateway (defined below); and
4. Poynt is not a regulated payment services provider and Poynt therefore does not provide payment services and does not have any liability (whether arising in contract, tort (including negligence) or otherwise) to you arising out of or in connection with the provision of payment services by your acquiring service provider (subject at all times to Section 13).

3.3 We explain how we process your Transaction Data and Cardholder Data in this License, including how we transmit the Transaction Data and Cardholder Data to your acquiring service provider. The Parties’ relative rights and obligations relating to the processing of Transaction and Cardholder Data are set forth in the Acquiring Service Provider Terms and/or any other terms and conditions relating to products or services provided by Poynt and/or its affiliates in connection with your use of the Software and the Poynt Terminal (collectively, with the Acquiring Service Provider Terms, “Ancillary Terms”). In the event of a conflict in terms relating to the processing of Transaction Data or Cardholder Data between this Agreement and the Ancillary Terms, the terms set forth in the Ancillary Terms shall prevail.

3.4 Where Poynt is processing Transaction Data and Cardholder Data on your behalf through the Poynt Gateway, Poynt shall be solely responsible for processing:

1. the Transaction Data and Cardholder Data initiated from the Terminal and received by the Poynt Gateway, until the Transaction Data and Cardholder Data is passed by Poynt to your acquiring service provider; and
2. the Transaction Data and Cardholder Data returned by your acquiring service provider and received by the Poynt Gateway, which is passed by Poynt back to the Terminal.

Where such Transaction Data and Cardholder Data contains Personal Data (defined below in Section 8.2), Poynt will handle such data in accordance with the terms of all services agreements and data processing addendums applicable to the services used to process such personal data.

3.5 Poynt may, on request from your customers, provide an e-receipt for a transaction by email or mobile to your customers.

3.6 Subject at all times to Sections 11 and 13, when the Poynt Gateway is used during the transfer of the data to your acquiring service provider pursuant to Section 3.3, Poynt shall be solely responsible to you for the costs of any transactions that downgrade to a less than optimal interchange category as a result of an error, deficiency, or failure of Terminal or Poynt Gateway or a failure of the Terminal or Services to conform with your acquiring service provider’s certification of Poynt’s resources or systems ("Incident"). Poynt's responsibility to you under this Section 3.6 shall only apply if (a) you give Poynt written notice of any such Incident within 15 days of the Incident taking place and (b) that such Incident concurrently affects all your Terminals. If you have fewer than ten (10) Terminals, then Poynt shall only be considered responsible under this Section if more than 10% of all active Poynt Terminals in your country of operation were concurrently affected by the same Incident.

3.7 Where Poynt is transmitting Transaction Data and Cardholder Data to or from your acquiring service provider, Poynt will act as your duly authorized representative in providing or receiving the Transaction Data and Cardholder Data on your behalf.

4. License Restrictions

4.1 You may use the Software or POS Product only for your internal business purposes or such other purposes as specifically authorized by Poynt or a Reseller in writing.

4.2 You must not:

1. use or copy the Software or POS Product, except as expressly permitted in this License;
2. translate, reverse engineer, decompile or disassemble the Software, except to the extent that:
   1. any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by you, and
   2. having requested Poynt to carry out such action or to provide such information (and having agreed to meet Poynt's reasonable costs in providing that information), Poynt has refused to carry out such action at a reasonable commercial fee or to provide the information necessary to achieve such integration within a reasonable period;
3. sub-license, rent, lease, assign, novate or otherwise transfer the Software, Terminal and/or activation codes except as expressly agreed by Poynt or a Reseller (as applicable) in writing;
4. modify the Software or merge all or any part of the Software into another program, unless the Software has been designed and is intended for such use or Poynt has otherwise approved such use in writing;
5. modify or delete any copyright, trademark, or other proprietary rights notice on any medium contained in the Software, POS Products and/or related Documentation, or copy (to the extent permitted by this or Applicable Law) any Software, POS Product or related Documentation without reproducing Poynt’s copyright, trademark or proprietary rights notices on each copy;
6. use, copy, modify or create new activation codes except as expressly permitted in this License;
7. modify the Terminal or use it with another program unless approved by Poynt in writing; or
8. use the Software embedded in a Terminal in other devices or use the Software licensed for a certain Terminal on a different device.

4.3 You shall notify Poynt as soon as you are aware of any unauthorized use of the Software, POS Product and/or Documentation by any person.

4.4 We may at any time sub-license, assign, novate, change or deal in any other matter with any or all of our rights and obligations under this License, provided we give you written notice.

5. Representation and Warranties

5.1 You represent and warrant the following: (i) you are a natural person or a legal entity duly organized, validly existing and as applicable in good standing under the laws of jurisdiction of your presence or incorporation; (ii) you are properly registered to do business in all jurisdictions in which you carry on business; (iii) you have all licenses, regulatory approvals, permits and powers legally required to conduct your business in each jurisdiction in which you carry on business; and (iv) you have the power, authority and legal right to enter into and perform this License and to carry out the transactions and its obligations contemplated by this License.

5.2 You represent, warrant, and undertake that (i) there is no litigation, proceeding or investigation of any nature pending or threatened against or affecting you, which would reasonably be expected to have a material adverse effect on your ability to perform your obligations under this License; (ii) all of the information disclosed to Poynt or its partners, suppliers, or licensors in connection with this License is materially true, accurate and complete; (iii) you will promptly inform Poynt of any action or event of which you become aware that has the effect of making materially inaccurate, any of your representations or warranties.

5.3 Each party represents and warrants that (i) this License shall constitute valid and binding obligations on such party, enforceable in accordance with its terms; (ii) except as otherwise stated in this License, no approval or consent of any person or government department or agency is legally or contractually required to be obtained by the party in order to enter into this License and perform its obligations; and (iii) the execution of this License, nor its performance of this License will (a) conflict with the certificate of incorporation or by-laws or any other corporate or constitutional document of the party, (b) breach any obligations of the party under any contract to which it is a party, or (c) violate any Applicable Law.

6. Intellectual Property Ownership

6.1 You acknowledge and agree that Poynt, its affiliates and licensors own and shall retain all right, title and interest in and to any and all names, commercial names, business names, trade names, company names, corporate names, brands, marks (including trademarks and service marks), logos, insignia, slogans, emblems, symbols, designs, design figurative elements, domain name, internet keywords, social media profiles and pages, trade dress, and any other distinctive sign of any nature, patents, rights in inventions, industrial design, utility models, author and copyrights (including regarding software, apps and their source-code or object-code), database rights and any similar rights, trade secrets, know-how and other proprietary data and information, and other intellectual property rights of any kind (“Intellectual Property Rights”) related to the Software.

6.2 You shall not take any action that jeopardizes Poynt’s Intellectual Property Rights (and/or its affiliates’ or licensor’s Intellectual Property Rights) or acquire any rights in such Intellectual Property Rights or proprietary rights in and/or to the Software, POS Product and/or Documentation, except the limited use rights granted under the License.

6.3 You agree and acknowledge that Poynt, its affiliates or licensors shall own all rights in any copy, translation, localization, modification, adaptation or derivative of the Software, POS Product and/or Documentation, including any improvement or development thereof. To the extent such rights may be inalienable, you agree to waive and not to exercise such rights. If such waiver and agreement are deemed invalid, you agree to grant Poynt, its affiliates or licensors the exclusive, perpetual, irrevocable, worldwide and royalty free right to use, market, modify any such items without any obligation of attribution or consent. At Poynt’s request, you agree to execute any instrument that may be appropriate to assign or license these rights to Poynt, its affiliates or licensors or perfect these rights in Poynt’s or its affiliates’ or licensors’ name.

6.4 For clarity purposes, you agree that this License does not grant to you any title to the Intellectual Property Rights and other proprietary rights in and to the Software, POS Product and/or Documentation, independently of their term of use.

7. Confidentiality

7.1 You acknowledge that the business and technical information you receive from Poynt and its third-party partners (including without limitation the Software, POS Product and Documentation) incorporate confidential and proprietary information (“Confidential Information”) that is valuable to Poynt. You agree to treat such Confidential Information as confidential and to take all reasonable precautions necessary to safeguard the confidentiality of the Confidential Information, including (i) those taken by you to protect your own confidential information and (ii) those, which Poynt or its authorized representative may reasonably request from time to time. You will not allow the removal or defacement of any confidentiality or proprietary notice placed on the Software, POS Product and Documentation. The placement of copyright notices on these items will not constitute publication or otherwise impair their confidential nature.

7.2 You will not disclose, in whole or in part, the Confidential Information to any individual, entity or other person, except to those of your Authorized Users who (i) need access for your authorized use of the Confidential Information and (ii) agree to comply with the use and non-disclosure restrictions applicable to the Confidential Information under this License. If requested by Poynt, you shall cause such employees to execute appropriate confidentiality agreements. You acknowledge that any unauthorized use or disclosure of the Confidential Information may cause irreparable damage to Poynt and its partners, suppliers, and licensors for which damages may be an inadequate remedy. Poynt shall therefore be entitled to seek injunctive or other equitable relief. If an unauthorized use or disclosure occurs, you will immediately notify Poynt and take, at your expense, all steps which may be available to recover the disclosed information and to prevent their subsequent unauthorized use or dissemination.

7.3 You will have no confidentiality obligation with respect to any portion of the Confidential Information that (i) you independently developed before receiving the Confidential Information under this License, (ii) you lawfully obtained from a third party under no confidentiality obligation or (iii) became available to the public other than as a result of any act or omission by you or any of your employees. Upon termination of this License or at the written request of Poynt, you will promptly return or destroy all material embodying the Confidential Information.

8. Subscription Plans

8.1 Subscription Plans. If you subscribe to receive certain POS Products as a part of a subscription plan (“Subscription”), this section applies to you.

8.2 Term. The term of your Subscription (“Subscription Term”) is specified either on our site, within you POS product description or in your checkout cart. Subscriptions will automatically renew in accordance with the Agreement. Except as otherwise specified: (i) you must pay the subscription fees specified in your Subscription; and (ii) you may not downgrade Subscriptions(s) until the expiration of its applicable Subscription Term. Your Subscription’s terms regarding payment, automatic renewal and refunds are described in GoDaddy’s Universal Terms of Service ("Agreement").

8.3 Subscription Limits. You agree that you will not exceed the usage limits set forth in your Subscription (“Limit”). You can upgrade or purchase additional Subscription at any time during the Subscription Term. Poynt reserves the right to audit (at least once annually) your account for compliance with applicable Limits throughout the Subscription Term. In the event you exceed your Limit(s), Poynt reserves its rights to take action against your account including but not limited to (1) invoicing you for the difference, and/or (2) suspending, limiting or terminating your Subscription accordingly at any time during your Subscription Term. Closure of your access to a Subscription or your account may result in forfeiture of content licenses, associated content, memberships, and balances associated with the account.

8.4 Non-Paid Subscription. For Subscription that provide POS Products for free (“Non-Paid Subscriptions”), you are not required to pay fees and we will make the applicable POS Products available to you until terminated in accordance with this License. However, your use of the POS Products in Non-Paid Subscription is subject to this License, and you will continue to be subject to this License for as long as you have access to the POS Products in such Non-Paid Subscription.

8.5 Miscellaneous.

1. Subscriptions are provided “as is” and “as available”, without any warranties of any kind, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, accuracy, completeness, reliability, or security.
2. We do not guarantee that Subscriptions will meet your requirements, expectations, or needs, or that it will be uninterrupted, error-free, or free of viruses or other harmful components.
3. Pricing and Limits for new and legacy Subscriptions may vary in accordance with then-current rates. If a Subscription is terminated for any reason, Pricing and Limits will reset at the then-current rates.
4. We are not responsible for any loss or damage that may result from your use of or inability to use of a Subscription, or from any unauthorized access, alteration, or deletion of your content or data.

9. Term and Termination

9.1 This License commences upon the earliest of you (i) accepting (by means of clicking on the “I AGREE” button) the terms and conditions contained herein, (ii) installing or activating the Software, and/or (iii) using or allowing use of the Software.

9.2 Your use of the Software or POS Products provided pursuant to this License may be subject to recurring fees, in whole or in part, payable as specified in accompanying terms, Documentation, purchase orders, related technical information and/or other materials. You acknowledge and agree that you will be entitled to continue using such Software or POS Products only upon payment of the then-current recurring fees, if applicable

9.3 You may terminate this License for convenience at any time without right to refund.

9.4 We may terminate this License at any time on written notice if you have materially breached this License. Upon the termination of this License:

1. you must stop all activities authorized by this License, including your use of the Software and/or POS Product;
2. you will:
   1. return the Terminal to Poynt or your Reseller (where applicable); or
   2. as and when possible, destroy, delete or remove all copies, full or partial, of the Software and all activation codes; and/or
3. we may remotely access your Terminal and remove the Software from it.

9.5 Any provision of this License that expressly, or by implication, is intended to come into or continue in force on or after termination or expiry of this License shall remain in full force and effect including the Confidentiality and Indemnity provisions, and the limitations of warranties and liability set forth in this License.

9.6 Termination or expiry of this License shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the License which existed at or before the date of termination or expiry.

10. Limited Software Warranty

10.1 Except as otherwise provided by Applicable Law, or as agreed to with Poynt, Poynt warrants that the Software will substantially perform in accordance with Poynt’s published product specifications in effect on the date of delivery for a period of ninety (90) days from the date of this License ("Warranty Period").

10.2 If, within the Warranty Period, you notify Poynt in writing of breach of the warranty set forth above, Poynt shall, at its sole discretion and option, repair or replace the Software, where applicable in accordance with Poynt's current applicable policies, subject to you providing all the information that may be necessary to assist Poynt in resolving the defect or fault.

10.3 You acknowledge this is the sole and exclusive remedy and Poynt’s exclusive liability for any breach of warranty related to the quality of the Software.

10.4 You acknowledge that (i) you selected the Software to achieve its intended results, that the Software was developed for generic use and was not customized to meet your individual requirements and (ii) the state of the art does not allow the development of Software bug free so Poynt cannot guarantee that the use of the Software may be uninterrupted or error-free.

10.5 You may have different warranty terms with a Reseller which are not affected by the terms of this Section 10.

11. Disclaimer of Warranty

11.1 Poynt will not be liable or responsible for (a) any defects or malfunctions in the Terminal, POS Products, or Software and/or (b) its failure to perform, or delay in performance of, any of its obligations under this License that are caused by any act or event beyond Poynt’s reasonable control including without limitation: (i) natural disasters including fire, smoke, water, earthquakes or lightning, (ii) electrical power fluctuations or failures, (iii) your failure to comply with the conditions and storage instructions specified in Documentation, (iv) any other abuse, misuse, accident, alteration, or neglect of the Terminal, POS Products, or Software, (v) repair, correction or modification of the Software, POS Products, or a Terminal not provided or authorized by Poynt, (vi) the combination of the Software or a Terminal with software or services not provided or authorized by Poynt, or (vii) failure of third-party telecommunications networks or hosting services (e.g. the Internet, Amazon Web Services, etc.).

11.2 Except as expressly set forth in Section 10 above and to the maximum extent allowed by applicable laws, all warranties, conditions, representations, guarantees or other terms with respect to the Software or POS Products, whether express, implied, arising by statute, common law, custom, prior oral or written statements by Poynt or otherwise (including, but not limited to implied conditions, any warranty or other terms as to merchantability, satisfactory quality, fitness for particular purpose, title, non-infringement or the use of reasonable skill and care) are hereby overridden, excluded and disclaimed. You acknowledge and agree that the limitations provided for in Sections 10 and 13, as well as the limitations set forth in this Section 11 are an essential element of this License and that in the absence of such limitation the terms and conditions set forth in this License would be substantially different.

12. Indemnity

12.1 If any claim is brought against you by a third party claiming that the Software and/or a POS Product infringes any third party Intellectual Property Right, Poynt will defend you at Poynt’s expense and, subject to this Section and Section 13 below, pay the damages and costs finally awarded against you in the infringement claim, but only if (i) you notify Poynt promptly (in any case within 5 days) upon learning that the claim may be asserted, (ii) Poynt has sole control over the defence of the claim and any negotiation for its settlement or compromise and (iii) you take no action that, in Poynt’s judgment, is contrary to its interests.

12.2 If a claim described in this Section may be threatened or has been asserted, you will permit Poynt, at its option and expense, to (i) procure the right to continue using the Software and/or a POS Product, (ii) replace or modify the Software and/or a POS Product to eliminate the infringement while providing functionally equivalent performance or (iii) accept the return of the Terminals and Software and refund to you the amount actually paid to Poynt and/or your Reseller for such Terminals and Software, less depreciation based on a twenty-four (24) month straight line depreciation schedule.

12.3 Poynt will have no indemnity obligation to you if the Intellectual Property Right infringement claim results from (i) a correction or modification of the Software not provided by Poynt or a Reseller, (ii) your failure to promptly install a patch, fix or update, if provided, or (iii) the combination of the Software with other products in breach of this License. You acknowledge and agree that to the maximum extent allowed by Applicable Laws, this Section sets forth your exclusive remedy and Poynt’s exclusive liability for any actual or alleged infringement or misappropriation claim related to the Software.

12.4 You will indemnify Poynt and our partners, licensors, suppliers, affiliates, officers, employees, directors, consultants, and agents for any of your or your employees' or contractors' actions or omissions related to the subject matter of this License, including without limitation your breach of this License, your negligence or willful misconduct, your violation of Applicable Laws, or your infringement, violation, or conflict with any third party rights.

13. Limitation of Liability

13.1 Except as expressly stated in Section 13.2:

1. POYNT SHALL NOT IN ANY CIRCUMSTANCES HAVE ANY LIABILITY FOR ANY LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY YOU (OR ANY PERSON CLAIMING UNDER OR THROUGH YOU), WHETHER THE SAME ARE SUFFERED DIRECTLY OR INDIRECTLY OR ARE IMMEDIATE OR CONSEQUENTIAL, AND WHETHER THE SAME ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE HOWSOEVER, WHICH FALL WITHIN ANY OF THE FOLLOWING CATEGORIES: SPECIAL, INCIDENTAL OR PUNITIVE DAMAGE EVEN IF POYNT WAS AWARE OF THE CIRCUMSTANCES IN WHICH SUCH SPECIAL DAMAGE COULD ARISE; LOSS OF PROFITS; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS OPPORTUNITY; LOSS OF GOODWILL; AND/OR LOSS OR CORRUPTION OF DATA, EVEN IF POYNT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THEY ARE FORESEEABLE OR UNFORESEEABLE, AND WHETHER ARISING OUT OF BREACH OR FAILURE OF AN EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
2. Poynt's total aggregate liability whether in contract, tort (including negligence) or otherwise and whether in connection with this License, use of the Terminal, a POS Product, Software or any collateral contract, shall in no circumstances exceed the greater of the sum of $50 and a sum equal to the fees paid by you to Poynt or a Reseller for use of the Terminal and Software over the 12 months period before the event giving rise to the claim.

13.2 The exclusions in Section 10 and Section 13.1 shall apply to the fullest extent permissible at law, but Poynt does not exclude liability for:

1. death or personal injury caused by the negligence of Poynt, its officers, employees, contractors or agents;
2. fraud or fraudulent misrepresentation; and/or
3. any other liability which may not be excluded by law.

13.3 All references to "Poynt" in this Section 13 shall, for the purposes of this Section only, be treated as including all employees, licensors, subcontractors and suppliers of Poynt and its affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this Section 13.

14. Compliance with Laws

The Software, POS Products, Documentation and related technical information, documents and materials provided hereunder are subject to export controls under the laws and regulations of the United States and other countries. You will comply strictly with all legal requirements established under these controls and will not export, divert, transfer or disclose, directly or indirectly, any Software and/or POS Products and related materials, or direct products thereof, in contravention of these laws and regulations.

15. General

15.1 If there is any inconsistency between this License and any software license or end user agreement (other than this License) provided in the packaging or accompanying materials of any portion of the Software and/or POS Products, the provisions of this License shall apply to the extent of the inconsistency. If there is any inconsistency between this License and any software license or end user agreement provided in connection with any upgrades or updates to the Software and/or POS Products, the provisions of such other license or end user agreements shall apply to the extent of the inconsistency. In the event of any inconsistency between this License and any separate agreement as individually agreed in writing between Poynt and you, the provisions of the separate agreement shall apply to the extent of the inconsistency.

15.2 If this License is translated into a language other than English, the English version will prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof. Unless, and only to the extent, prohibited by law in your jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this License shall be conducted in the English language, including, without limitation, any correspondence, discovery, submissions, filings, pleadings, oral pleadings, arguments, oral arguments and orders or judgments.

15.3 This License will be governed by and will be construed under the laws of the State of California. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. Poynt may, at its sole discretion, file for collection of debt in the courts with appropriate jurisdiction as may be necessary and appropriate.

15.4 The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods from this License.

15.5 If any provision of this License is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, in whole or in part, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, such provision shall be severed from the License and the other provisions shall remain in full force and effect.

15.6 Except as expressly provided in this License, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

15.7 You agree that, in entering into this License, you did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this License and that this License and any other documents referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. Nothing in this Section 15.7 shall limit or exclude any liability for fraud.

15.8 This License does not give rise to any rights to third parties (except as specifically set out in this License) to enforce any term of this License.

15.9 Except as otherwise provided in this License, or as agreed to with Poynt pursuant to a separate agreement, all notices or approvals required or permitted under this License must be given in writing to Poynt at agreements@poynt.com. Any waiver or modification of this License will not be effective unless executed in writing and signed by Poynt. In addition to the foregoing, Poynt may, at its option, give you any notice under this License electronically. Electronic notice to you shall be deemed to have been duly given when transmitted to an address furnished by you to Poynt. No failure or delay by a party to exercise any right or remedy provided under this License or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

Definitions

"Applicable Law" means laws, regulations, statutes, codes, rules, orders, licenses, certifications, decrees, standards or written interpretations imposed by any governmental authority (which includes any political subdivision, whether national, federal, state or local government, or governmental or regulatory body, agency, authority or instrumentality, or any court or arbitrator (public or private), including any Regulator, that, in each case, has or has asserted jurisdiction over the entity or matter in question) that apply to or relate in any way to this License.

"Cardholder Data" has the meaning stated in the PCI DSS and PA-DSS Glossary of Terms, Abbreviations, and Acronyms and includes any other data related to or arising from mobile payment and/or any other third party electronic wallets.

"Documentation" means the Software user manuals, operating instructions, specifications, installation guides and/or related documentation generally made available to licensees of the Software.

"POS Products” means those solutions, products and services offered by Poynt that are compatible with the Terminals.

"Poynt Gateway" means the gateway, platform or system provided and hosted by or on behalf of Poynt, through which Poynt passes through the Transaction Data and Cardholder Data in accordance with Section 3.3 of this License.

"Regulator" means a governmental authority that is charged with monitoring, regulating and/or overseeing the business practices of the respective parties or an applicable issuing bank, including Federal Financial Institutions Examination Council, the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), the National Credit Union Administration (NCUA), the Office of the Comptroller of the Currency (OCC), the Consumer Financial Protection Bureau (CFPB), and the Financial Crimes Enforcement Network (FinCEN), state banking commissions, or any successor bodies that regulate financial institutions and financial service providers in the country in which the Terminal and Software are used.

"Reseller" means, if applicable, the authorized reseller of Poynt or of your acquiring service provider, value added reseller, or independent sales organization (ISO) through which you are leasing or have purchased your Terminal(s).

"Software" means the machine readable object-code version of all computer programs, activation codes and related documentation that Poynt makes generally available pursuant to this License, including PoyntOS, Poynt HQ Commerce Home or similar Poynt user interface, Poynt Mission Control (a Poynt Terminal management software) and any programs embedded in the Terminals or designed for installation and use on the Terminal(s) excluding any Third Party Materials and Services which will be covered by separate licenses, as well as any patch, fix, update or upgrade provided as part of any maintenance and support services or otherwise. Software does not include any of the Third Party Materials and Services available on the Poynt App Center.

"Terminal" means (i) the Poynt Smart Terminal and its parts, components, materials, and any purchased subassemblies that may be incorporated by Poynt or its subcontractors into products but excluding any computer programs embedded therein and/or (ii) any other device pre-authorized in writing by Poynt (or a Reseller) to install or use the Software with.

"Transaction Data" means payment processing related transactional information, including the price paid for products or services, date, time, approval, unique transaction number, store identifier, and bank information relating to a transaction.