Online Reseller Agreement - Terms and Conditions

This Reseller Agreement  together with the Self-Onboarding Form completed by the Partner and accepted by Poynt (collectively the “Agreement”) governs the Partner and Poynt reseller relationship. By accepting this Agreement either by clicking A Box indicating your Acceptance or otherwise electronically indicating Acceptance, you agree to the terms of this Agreement. If you are an individual accepting these terms on behalf of an entity, you represent that (i) you have the legal authority to enter into this Agreement on that entity’s behalf, (ii) you have read and understand the terms of this Agreement and (iii) you agree, on behalf of the entity that you represent, to the terms of this Agreement. 

 

Partner and Poynt are referred to herein as a “Party” and collectively as the “Parties”.

 

  • Business Purpose 
    1. This Agreement shall govern the terms and conditions pursuant to which Partner will sell the Authorized Products and Services in Exhibit A to Approved Merchants and sub distributors in the Assigned  Reseller  Territories set forth in Exhibit B  and  Poynt will make available Poynt Capital,  App Marketplace and App Marketplace Apps to the Partner and it’s Approved Customers (such customers that purchase Authorized Products, “Merchants”) within the Assigned Territory ( “Territory”). 

 

  • Poynt Products, Services & Pricing
    1. Authorized Products and Services.  Subject to all terms and conditions hereof, Partner is hereby authorized to resell by Poynt the products and services specified in Exhibit A (the “Authorized Products and Services”) in accordance with Exhibit B (“Poynt Distribution”).   Poynt reserves the right to add new or retire Authorized Products and Services from time to time by reasonable notice to the Partner. Acceptable notice will include emails and/or Poynt Website updates.  The fees for the Authorized Products and Services are as set forth in the applicable Exhibits as displayed on Poynt Websites.  All fees are in U.S. dollars and non-refundable.  
    2. Hardware Agnostic.  Poynt is committed to an open ecosystem of hardware and software in the POS space. Poynt Cloud Software licenses and fees will apply to third party smart terminals using Poynt Cloud Software. 

 

  • Support Services
    1. Poynt offers various support services for Authorized Products sold by Partner, including customer support and Partner technical support. Partner shall be responsible for providing such “level one” support to its Merchants.  Poynt shall be responsible for providing the support services to Merchants as set forth on Exhibit D hereto. 

 

  • Taxes
    1. Poynt shall include on each Invoice any sales, use, excise, import or export, value-added or similar tax or duty (excluding any such tax or duty based on Poynt’s net income) arising from the sale of Authorized Products to Partner hereunder other than such taxes or duties for which Partner has delivered Poynt evidence, reasonably acceptable to Poynt, that Partner is exempt (“Covered Taxes”).  All fees due are free and clear of any set off or deduction for any withholding tax or similar taxes.  If applicable, all payments will be made on a gross basis for any taxes deducted or withheld.     

 

    1. If Partner fails to pay any Covered Taxes in accordance with Section 4.1, Partner shall be liable for any fines, fees, penalties, interest or other liabilities arising from Partner’s failure to comply with Section 4.1.  If Poynt fails to correctly and timely invoice Partner for any Covered Taxes, such failure shall not release Partner’s liability to pay any such Covered Taxes. 

 

    1. Without limiting the generality of the foregoing, Partner shall not be obligated to pay such taxes to Poynt if Partner substantiates that Partner is purchasing for resale and is thereby legally not obliged to pay such taxes. 

     

  • Orders, Delivery and Shipment     
    1. Purchase of terminals shall be directed through third party distribution, prices, terms and delivery will be subject to third party terms and conditions.  

     

 

  • Payment Terms
    1. Payment Terms. When applicable,  Poynt shall charge Partner’s Card on File  (a) for monthly charges, Poynt  shall charge the Partner’s Card on File;  (b) for any ad-hoc  purchases using the Order form, Poynt will  charge the Partner’s Card on File  upon delivery of the Order form. 

 

    1. Poynt shall accept payment via Partner’s credit card which will be required as part of the Partner’s self-onboarding to Poynt as a reseller (“Card on File”). Partner will be responsible to update any change of the Card on File details including replacement due to expiration, for example.    

 

    1. Payment timing. The Partner’s Card on File shall be charged on (a) monthly charges on or before the 15th day of the following month; (b) ad-hoc charges on delivery of the Order form. 

 

    1. Direct charging. For certain Authorized Products and Services, such as, but not limited to, App Marketplace, Poynt may charge Partner’s customers, as set forth in Exhibits E and G.  Poynt will also support charging via the Partner  as a payment method for the App Marketplace. All charges shall be in the merchant’s local currency, unless a different currency is specified in Exhibits E and G.  

 

    1. All charges due to Poynt without regard to whether Partner has collected payment from its End Customers. Each Party will make their Payments in full (no netting of payments will be accepted).

 

    1. Any charged amount which is not paid when due will bear a late fee at the rate of 6% per annum or the maximum rate permitted by applicable law, whichever is greater. Furthermore, any fees related to incorrect or un-updated Partner’s credit card detail will be charged to Partner. 

 

  • Partner Covenants
    1. Marketing.  Partner shall (a) comply with all laws and regulations applicable to its business; (b) conduct business in a manner that does not reflect unfavorably on the Authorized Products or the good name, goodwill and reputation of Poynt; (c) make no false or misleading representation with respect to Poynt or the Authorized Products; and (d) make no representations with respect to Poynt and its licensors or the Authorized Products that are inconsistent with those made by Poynt in its then-standard form of end-user agreement or merchant agreement applicable to the Authorized Products and Poynt Marketing Materials, including all liability limitations and disclaimers contained in such materials.  Partner shall also comply with the Poynt Brand Guidelines, which shall include agreed upon co-branding options.  

 

    1. End-user Support.  Partner shall be responsible for providing any necessary installation, training, service and support for its customers that receive the Authorized Products.

 

    1. Accessing Services.  Except as otherwise expressly agreed herein, Partner is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access any Poynt hosted service, and for paying all third-party access charges (e.g., telecommunications) incurred in connection therewith.  Partner shall take all reasonable steps whether physical, technical or contractual to protect the security of and access to any such hosted service and the security and confidentiality of all information processed using such hosted service prior to such information being delivered to Poynt.   

 

    1. Cooperation.  Partner shall provide Poynt, in a timely manner, with such information and assistance as Poynt may reasonably require in order to enable Poynt to provide the Authorized Products to Partner and its customers.

 

  • Ownership; License Rights 
    1. Ownership. Partner acknowledges that title to, ownership of, and all intellectual property rights in and to the Authorized Products (including without limitation any proprietary electronics, software and technical information of Poynt or its licensor included in any terminals (collectively “Proprietary Materials”)) are reserved to and are the exclusive property of Poynt and its licensors.  Except for the limited licenses set forth herein, no other right, title or interest in the Authorized Products are conveyed to Partner. 

 

    1. License to Access and Use Authorized Products. Subject to the terms and conditions of this Agreement, Poynt hereby grants to Partner a non-sublicensable, non-exclusive, non-transferable license: (1) to market and distribute the Authorized Products in the Appointed Territory; and (2) to grant to customers the right, during the applicable service term for Authorized Products for such customer, to (a) access and use the Authorized Products in the Appointed Territory for the purposes contemplated by the applicable Exhibits; (b) execute, download and display the features, functions and graphical interface components of Authorized Products to communicate, transfer and collect data; and (c) display, download, print and reproduce any documentation provided by Poynt as reasonably required for the use of Authorized Products as contemplated by the applicable Exhibits. Partner acknowledges that its customers will be required to accept Poynt’s standard terms of service for the Authorized Products prior to activating Authorized Products (for example, without limitation, for PoyntOS the Poynt EULA found at https://poynt.com/terms/,  hereafter the “Poynt EULA”).
    2. Poynt shall have the right to market and sell other services and applications directly to customers, provided that such marketing and/or sales activities are subject to the terms and conditions set forth in section 14.1.

 

    1. Further Restrictions.  Partner will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Proprietary Materials or any software, documentation or data related to the Proprietary Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (b) modify, translate, or create derivative works based on the Proprietary Materials; (c) use of the Proprietary Materials for time sharing or service bureau purposes or for any purpose other than for the internal benefit of Merchants; (d) use the Proprietary Materials other than in accordance with this Agreement or in compliance with all applicable laws and regulations, including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation; or (e) use or access the Proprietary Materials outside the Territory.

 

    1. Trademarks.  
      1. Partner will not remove from the Authorized Products (or their packaging or documentation), or alter, any of Poynt’s or its licensor’s trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Authorized Products (or their packaging or documentation), without the prior express written consent of Poynt. 
      2. Poynt hereby grants Partner a non-sublicensable, non-exclusive, non-transferable, royalty-free license to use Poynt’s trademarks, marketing material and logos in connection with its performance of this Agreement solely in the form approved by Poynt in writing. 

 

    1. Data.   
      1. Poynt’s rights to access, use, disclose, and otherwise exploit Merchant data shall be specified in the Poynt EULA.  Each Party will comply with all applicable laws and regulations with respect to any use, sharing and dissemination of data, including the General Data Protection Regulations (“GPDR”) of the European Union.  

 

  • Limited Warranty/ Disclaimers
    1. THE WARRANTIES FOR EACH AUTHORIZED PRODUCT, IF ANY, ARE AS SET FORTH IN THE APPLICABLE EXHIBITS. THE EXPRESS WARRANTIES SET FORTH IN THE EXHIBITS, IF ANY, DO NOT APPLY TO AUTHORIZED PRODUCTS WHICH HAVE BEEN ALTERED, MODIFIED, REPAIRED OR SERVICED IN ANY RESPECT EXCEPT BY POYNT OR ITS AUTHORIZED REPRESENTATIVES.  POYNT MAKES NO WARRANTIES THAT ANY AUTHORIZED PRODUCT WILL OPERATE IN CONJUNCTION WITH ANY OTHER SOFTWARE OR WITH ANY EQUIPMENT. NEITHER POYNT NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OF ANY AUTHORIZED PRODUCT WILL MEET THE REQUIREMENTS OF PARTNER OR ANY CUSTOMER OF PARTNER. NEITHER POYNT NOR ITS LICENSORS WARRANT THAT THE OPERATION OF ANY AUTHORIZED PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE AND EACH HEREBY DISCLAIM ALL LIABILITY ON ACCOUNT THEREOF. PARTNER ACKNOWLEDGES THAT UNDER NO CIRCUMSTANCES DOES POYNT OR ITS LICENSORS REPRESENT OR WARRANT THAT ALL PROGRAM ERRORS IN ANY AUTHORIZED PRODUCT CAN BE REMEDIED.  

 

    1. THE EXPRESS WARRANTIES SET FORTH IN THE EXHIBITS, IF ANY, APPLY ONLY TO AUTHORIZED PRODUCTS SOLD AND USED IN THE APPOINTED TERRITORY. ALL AUTHORIZED PRODUCTS ARE DESIGNED FOR USE IN THE APPOINTED TERRITORY ONLY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, POYNT MAKES NO WARRANTY, AND PROVIDES NO ASSURANCES, THAT THE AUTHORIZED PRODUCTS WILL MEET CERTIFICATION REQUIREMENTS OF ANY REGULATORY OR LICENSING AGENCY OUTSIDE THE APPOINTED TERRITORY.   

 

    1. THE EXPRESS WARRANTIES SET FORTH IN THE EXHIBITS, IF ANY, ARE THE ONLY WARRANTIES OR CONDITIONS PROVIDED BY POYNT WITH RESPECT TO THE AUTHORIZED PRODUCTS. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, AND POYNT AND ITS LICENSORS EXPRESSLY EXCLUDE AND DISCLAIM ANY OTHER WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. 

 

    1. IN THE EVENT THAT NO WARRANTY IS PROVIDED, THE APPLICABLE AUTHORIZED PRODUCT OR SERVICE IS PROVIDED TO PARTNER “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.



  • LIMITATION OF LIABILITY; INDEMNITIES
    1. LIMITATION OF LIABILITY.  
      1. NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO POYNT PLUS THOSE PAYABLE TO POYNT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CAUSE WHICH GAVE RISE TO SUCH DAMAGES; (B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES, OR RIGHTS; (C) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (D) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. 
      2. THESE SECTION 10.1 LIMITATIONS SHALL NOT APPLY TO BREACH OF SECTIONS, 7.1 (MARKETING), 8 (OWNERSHIP; LICENSE RIGHTS), 11 (CONFIDENTIALITY), OR 13 (COMPLIANCE), OR EITHER PARTY’S INDEMNIFICATIONS OBLIGATIONS.  

 

    1. Poynt IP Indemnity.
      1. Poynt will indemnify, defend and hold Partner, its affiliates, officers, directors, consultants and employees harmless from any and all amounts actually paid to third parties in connection with claims, liabilities, damages and/or costs (including but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) relating to any claim that the Authorized Products, as provided by Poynt to Partner under this Agreement and used within the scope of this Agreement, infringes or misappropriate any patent or copyright of such third parties (each, an “Infringement Claim”), provided that Partner: (a) promptly notifies Poynt in writing of the Infringement Claim (provided that any failure to provide prompt notification shall not relieve Poynt of its indemnification obligations unless such failure results in material prejudice to Poynt); (b) grants Poynt the option to assume sole control of the defense and settlement of the Infringement Claim; and (c) provides Poynt, at Poynt’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the Infringement Claim. 
      2. Poynt will not be responsible for any settlement it does not approve in writing. 
      3. If an Authorized Product is held to or is believed by Poynt to infringe, Poynt will have the option, to (A) modify the Authorized Product to be non-infringing, (B) obtain for Partner a license to continue using the Authorized Product, or (C) terminate this Agreement as to the infringing Authorized Product. 
      4. Notwithstanding the foregoing, Poynt will have no liability for any Infringement Claim to the extent that it results from: (1) modifications to the Authorized Products made by a party other than Poynt or its agents; (2) data accessed or generated by the Authorized Products; (3) the combination, operation or use of the Authorized Products with equipment, terminals, data or software not provided or approved by Poynt; (4) Partner’s failure to use updated or modified versions of the Authorized Products provided by Poynt to avoid a claim; (5) Poynt’s compliance with any specifications or requirements provided by Partner; or (6) Partner’s use of the Authorized Products other than in accordance with this Agreement. The indemnification obligations set forth in this section are Poynt’s sole and exclusive obligations (and Partner’s sole and exclusive remedies), with respect to infringement or misappropriation of intellectual property rights of any kind.

 

    1. Partner IP Indemnity.
      1. Partner will indemnify, defend, and hold Poynt, its affiliates, officers, directors, consultants and employees, harmless from Losses relating to any claim that Partner intellectual property, as provided by Partner to Poynt under this Agreement and used within the scope of this Agreement, infringes or misappropriate any patent or copyright of such third parties, provided that Poynt: (a) promptly notifies Partner in writing of such claim (provided that any failure to provide prompt notification shall not relieve Partner of its indemnification obligations unless such failure results in material prejudice to Partner); (b) grants Partner the option to assume sole control of the defense and settlement of such claim; and (c) provides Partner, at Partner’s expense, with all assistance, information and authority reasonably required for the defense and settlement of such claim.
      2. Partner will not be responsible for any settlement it does not approve in writing.
      3. Notwithstanding the foregoing, Partner will have no liability for any claim to the extent that it results from: (1) modifications to Partner intellectual property made by a party other than Partner or its agents; (2) data accessed or generated by Partner intellectual property; (3) the combination, operation or use of Partner intellectual property with equipment, terminals, data or software not provided or approved by Partner; (4) Poynt’s failure to use updated or modified versions of Partner intellectual property provided by Partner to avoid a claim; (5) Partner’s compliance with any specifications or requirements provided by Poynt; or (6) Poynt’s use of Partner intellectual property other than in accordance with this Agreement. 
      4. The indemnification obligations set forth in this section are Partner’s sole and exclusive obligations (and Poynt’s sole and exclusive remedies), with respect to infringement or misappropriation of intellectual property rights of any kind.

 

    1. General Indemnity.  Each Party (in such capacity, the “Indemnifying Party”) shall indemnify and hold harmless the other Party, its affiliates, officers, directors, consultants and employees (collectively, in such capacities, the “Indemnified Party”) from any Losses arising from third party claims arising from the Indemnifying Party’s breach of Sections 4 (Taxes), 7.1 (Marketing), 8 (Ownership; License Rights), 11 (Confidentiality), or 13 (Compliance) of this Agreement, gross negligence, willful misconduct or bad faith except to the extent arising from an applicable Indemnified Party’s breach the foregoing Sections of this Agreement,  gross negligence, willful misconduct or bad faith; provided that the Indemnifying Party: (a) promptly notifies the Indemnified Party in writing of such claim (provided that any failure to provide prompt notification shall not relieve the Indemnifying Party of its indemnification obligations unless such failure results in material prejudice to the Indemnifying Party); (b) grants the Indemnifying Party the option to assume sole control of the defense and settlement of such claim; and (c) provides the Indemnifying Party, at the Indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of such claim.  The Indemnifying Party will not be responsible for any settlement it does not approve in writing.

     

  • Purposely omitted



  • Confidentiality
    1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (i) to give access to such Confidential Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own Confidential Information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Confidential Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.  Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

 

  • Term and Termination
    1. Term.  This Agreement will have an initial term of three (3) years commencing on the Effective Date.  Thereafter, the Partner shall notify Poynt in writing of its intent to renew no later than ninety (90) days prior to the expiration of the then current term of this Agreement.

 

    1. Termination for Cause.  Either Poynt or Partner may terminate this Agreement at any time, for cause by providing the other party with thirty (30) days written notice if the other party is in material breach of this Agreement and has failed to cure such breach within the 30-day notice period.  The end of such notice period shall be the “Termination Date”.

 

    1. Effect of Expiration or Termination.  Upon expiration or termination of this Agreement: 
      1. Partner shall cease offering the Authorized Products for resale. 
      2. Poynt shall continue to support the Authorized Products following the Termination Date in accordance with this Agreement provided the Partner continues to pay applicable support fees; and (b) Partner shall remain liable for expenses or costs incurred but unpaid as of the date of such termination and the remaining value, if any, of any purchase commitment made in any prior purchase orders.
      3. Partner shall pay all fees due for Authorized Products previously provided in accordance with the payment provisions herein.  
      4. Certain other termination provisions for certain Authorized Products are set forth in the applicable Exhibits. 
      5. Notwithstanding the foregoing, Sections 6 (until all fees are paid), 4, 5, 7, 8.1, 8.3, 8.4, 9, 10.3, 11,  12, 13, 14 and 15.1, 15.3, 15.5. 15.5, 15.6, 15.13 shall survive any expiration or termination of this Agreement.

 



  • Compliance
    1. Foreign Corrupt Practices Act.  Partner and Poynt shall fully comply with all applicable anti-corruption and anti-bribery laws and regulations in connection with this Agreement, including, but not limited to, the United States Foreign Corrupt Practices Act (the “FCPA”), as may be amended from time to time.  Any breach or violation of any provision contained in this Section 14.1 shall be grounds for immediate termination of this Agreement by Poynt. Partner represents and warrants that Partner has not committed and Partner has no information, reason to believe, or knowledge of any of the Partner’s affiliates having committed or intending to commit any violation of the FCPA. 
    2. Export Control Laws.  Poynt products, technology and/or software, including, without limitation, the Products are subject to U.S. export control laws and regulations, including embargoes and sanctions, as well as the laws and regulations of countries in which Poynt products, technology and/or software are sold. In connection with Poynt’s policies to assure compliance with such laws and regulations, Partner agrees that the following terms and conditions shall apply to Poynt’s sale of the Products to Partner:
      1. Partner agrees to abide by all applicable U.S. and/or selling countries export control laws and regulations for all Products purchased from Poynt.  Without limiting the generality of the foregoing: (a) Partner and Partner agents, representatives, and employees, represent and warrant that Partner/they will not use, export or re-export, sell, re-sell, license, distribute, make available or transfer or cause or facilitate the transfer of any Products, including any component or part thereof, directly or indirectly to: Cuba, Iran, North Korea, Sudan, or Syria, or any other country for which the U.S. maintains an export embargo or other economic sanctions; or any individual or entity listed on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Commerce Department’s Table of Denial Orders or any other denied parties, as such lists may be updated from time to time; and (b) Partner and Partner agents, representatives, and employees, will not use, export or re-export, sell, re-sell, divert or otherwise transfer any Products, including any component or part thereof, for use in activities that involve the development, production, use or stockpiling of nuclear activities of any kind, chemical or biological weapons or missiles, unmanned aerial vehicles, or microprocessors for military use, or any terrorist activities, nor use any Products, including any component or part thereof, in any facilities that are engaged in activities relating to such weapons or applications.
      2.  Partner represents and warrants that the Partner has the appropriate policies and procedures in place to ensure compliance with the foregoing, including, without limitation, the prohibition of any re-export of any Products to countries subject to a U.S. trade embargo.  Such measures shall include, at a minimum, accurate recordkeeping, and are subject to Poynt’s audit rights that may be exercised from time to time by us in our sole and absolute discretion to confirm compliance.
      3.  Partner agrees that if Poynt reasonably believes that Partner is in breach of any of the terms and conditions contained in this Section that alone shall be sufficient grounds for further action by Poynt, including, without limitation, cancellation of any orders or denial of future business, without any liability or obligation to Partner. In addition, Partner hereby indemnifies Poynt and its affiliates, directors, officers and employees for all costs, expenses, damages, claims, charges, penalties, fines and other losses that arise in connection with any breach by Partner or Partner agents or employees of the terms and conditions contained in this Section.

 

    1. PCI and Related Certifications: Poynt shall maintain its PCI DSS, PTS, EMV and CE certification at its own cost, and shall be validated as a PCI DSS, PTS, EMV and CE compliant service provider during the term of the Agreement. Poynt and Partner warrant that they shall adhere to the standards maintained and published by the PCI Security Standards Council.  

 

  • General
    1. For the term of this Agreement and for one year thereafter, (i) each party shall not encourage or solicit any current employee of the other Party to leave such party for any reason, and (ii) Partner shall not engage in any third-party partnership relationship materially similar to this Agreement where Partner develops, promotes, sells, licenses, distributes, or provides services that does or would compete directly with Poynt’s Authorized Products. The foregoing restriction on solicitation of current employees does not apply to unsolicited applications for jobs, responses to public advertisements or candidates submitted by recruiting firms, provided that such firms have not been contacted to circumvent the spirit and intention of this Section.

 

    1. Partner and Poynt shall cooperate in good faith to integrate Authorized Products with the Partner’s systems as described on Exhibit D hereto.

 

    1. Poynt and Partner shall at all times and for all purposes be deemed to be independent contractors and neither party, nor such party’s employees, subcontractors or agents, shall have the right or power to bind the other party. 

 

    1. If any portion of this Agreement is held to be unenforceable, the remainder of this Agreement will remain valid. 

 

    1. This Agreement shall be governed by the laws of the State of California without regard to the conflicts of law provisions thereof.  Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in San Francisco, California in English and in accordance with the JAMS International Arbitration Rules then in effect.  Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s).

 

    1. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.  The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues.

 

    1. Partner may not assign this Agreement, or any of its rights or obligations hereunder, without Poynt's prior written consent. Subject to the preceding sentence, this Agreement will ensure to the benefit of the parties' successors and assigns. 

 

    1. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, or mailed by certified or registered mail, postage prepaid, return receipt requested, to the applicable address set forth below or legal@poynt.com. If notice is given in person or by courier, it shall be effective upon receipt; and if notice is given by mail, it shall be effective three (3) business days after deposit in the mail.  

 

    1. The terms and conditions of this Agreement, together with the attached exhibits, constitutes the entire agreement between the parties and supersedes all previous agreements, whether oral or written, between the parties with respect to the subject matter hereof.

 

    1. In the event of any conflict between the terms of this Agreement and those set forth on any Order forms or other ordering document, the terms of this Agreement shall control.  Order forms  shall be effective only as to quantity and kinds of Products ordered.

 

    1. No amendment or waiver of this Agreement will be binding unless it has been agreed to in writing by both parties. 

 

    1. Each Party shall not be responsible for any failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, fires, floods, labor disturbances, riots or wars. 

 

    1. Upon Poynt’s reasonable request, which shall be no more than once (1) per year, Partner shall provide Poynt with current reporting regarding the number of Merchants and churn rate, in form and substance agreed by Partner and Poynt. In addition, Partner shall promptly report any complaints or feedback on Poynt and Poynt Terminal Software for the purposes of improving product quality. 




     EXHIBIT A: Authorized Products and Services

The Authorized Subscription Software and Services that Poynt will provide to Partner (subject to the Distribution guidelines in Exhibit B and the pricing outlined in Exhibit G) includes: 

 

  • Poynt Software Platform
    • Poynt Cloud Platform Offering Service includes the following software features, functionality and services;   L2 support (detailed in Exhibit C), Hosting and backup for account data, Multi-terminal configuration (terminals in the same store share a configuration, catalog, and work together out of the box), Automatic network, PCI and EMV firmware and security updates, OS threat vector monitoring and upgrades, Application notifications (for instance order ahead, buy online pickup in store), Cloud integration with headless applications, Developer SDK for 3 party customization, Email receipts and processor integration. 
    • Poynt Register Software. Poynt offers Basic, Advanced and Premium register software plans. the features and functionality of these packages are under regular development. The Basic package is included with all Poynt platform distribution. 
      • Basic - is the entry-level software plan available for any terminal that runs Poynt Platform.    (does not include the Contactless app, or dongle/mobile blue-tooth enabled card reader). It only offers the basics: payment acceptance and reports. “Payment acceptance” includes the ability to capture digital signatures and to track cash. Payment Platform does not include inventory capabilities or item-level data, so if the Merchant needs to track products and manage in-stock inventory the Merchant will need to upgrade to a higher-level software plan.
      • Advanced - -includes all functionality in Payment Platform (basic plan). Advanced Register is Poynt’s “cash register replacement” plan. It can replace your old low-tech cash register while providing additional functions like basic inventory and order management. The plan is available for any terminal running Poynt OS Platform (excludes contactless app, dongle/mobile blue-tooth enabled card reader),and includes all of the features and functionality of Poynt Payment Platform with added functionality.
      • Premium -includes all functionality in Payment Platform (basic plan); and all functionality in Advanced Register. The Premium Register is Poynt’s complete and most powerful plan, that provides the full capability in the SPOS ecosystem, with enhanced inventory and full order management. It’s available for all terminals except contactless app, dongle/mobile blue-tooth enabled card reader. It offers full access to hundreds of apps in the Poynt App Center. It includes all of the features and functionality of Poynt Payment Platform, and Performance Register, with added functionality. Register Pro is the only plan that allows you to connect a weight scale, so if you want to use Poynt to sell produce, or other weight- based items, this is the plan you’ll need. Register Pro also allows you to send orders to the kitchen printer, or kitchen display, making it more feature rich for restaurants. Register Pro should be sold to Merchants that want and need a full-featured SPOS system or have more advanced needs, particularly in food service. Register Pro includes extensive inventory management functions, enhanced modifiers variants, item-level cost and profitability tracking and the ability to create combinations of items. 

 

  • Mission Control:  Poynt’s Mission Control is an advanced web-based system that allows:
    • Boarding of Merchants
    • Configuration and Deployment of Terminals
    • Development of Custom Applications
    • Maintenance and Support of Terminals
    • Manage Resellers
    • Monitor and Manage Payment Activity

 



  • Poynt Capital Services - eligible merchants can receive fast and easy access to funds to help their businesses grow. Merchants are generally provided pre-approved offers in the form of merchant cash advances or loans via email, online or Poynt device. The merchant is asked to provide some additional information and sign an agreement online. Once completed the funds are normally deposited into the merchant’s bank account within one day. Paying back the funds is easy and effortless for the Merchant. This service is included in the Poynt Payment Processing Program. It also can be offered by our Partners to Merchants processing thru other processing relationships see Exhibit G for details)  

 

  • Poynt App Marketplace provides authorized developers the ability to extend the Poynt functionality through certified applications and services (“3rd Party Apps”) that build on the Poynt SDK. Further described by EXHIBIT E.

 

  • Poynt Terminals and Accessories 
    • Poynt Smart Terminal (Wifi). Poynt terminal, power adapter & cord, Wifi, EMV L1/L2, NFC and Card Swipe, receipt printer and consumer facing display.  Detailed specifications are available poynt.com.
    • Poynt Smart Terminal (Cellular). Poynt terminal, power adapter & cord, Cellular wireless connectivity, Wifi, EMV L1/L2, NFC and Card Swipe, receipt printer and consumer facing display. Detailed specifications are available at poynt.com
    • Poynt 5 (Wifi). Poynt terminal with power adapter & USB cord, Wifi, EMV L1/L2, NFC and Card Swipe.  Detailed specifications are available poynt.com.
    • Third party Point of Sale Terminals. This list will be updated from time to time.   
      • Newland 910
    • All other Poynt approved hardware accessories that can be used in conjunction with Poynt terminals.

EXHIBIT B: Poynt Distribution

  1. The Partner’s distribution/resale of Poynts Products, Services and Software Platform is restricted to the following: 
    1. “Appointed Territory” shall mean the UNITED STATES OF AMERICA. For purposes of this Agreement, the United States of America excludes all territories of the United States, including Puerto Rico and Guam. 
    2. “Approved Poynt Terminals, Accessories and Poynt Software Platform Customers” shall mean SMB Merchants and other sub distributors such as ISOs, and ISV’s and Merchant Acquirers in the Appointed Territories. 
    3. “Approved Poynt Software Platform Customers” shall mean:
      1. ISO’s and Agents that resell merchant processing through the Partner. 
      2. ISV must enroll any application they have developed and wish to download onto a Poynt terminal in the Poynt App store (via the POYNT website) and sign a separate App agreement license agreement with POYNT. 

“Approved Poynt Capital Customers” shall mean Merchants (i)located in the United States; (ii) satisfy Poynt’s underwriting criteria; (iii) meet a minimum Gross Processing Volume criterion; and (iv) meet other criteria set by Poynt.   

  1. To facilitate distribution of Poynt Cloud Software, Poynt App Marketplace, Poynt Capital, and Poynt Terminals both parties agree to: 
    1. Mutual Responsibilities 
      1. Furnish each other with appropriate technical information for support and planning purposes, provided, however, that each party reserves the right, at its sole discretion, to determine the scope of such information.
      2. Partner shall maintain trained marketing, sales and support staff. 
    2. Partner Operations.  Partner agrees, at its own expense, to:
      1. Follow Poynt Branding and Marketing and Guidelines including:
        1. Using appropriate and up to date Poynt trademarks and brand and marketing collateral 
        2. Provide equal branding of the reseller alongside Poynt in any marketing materials, including but not limited to websites, emails and sales collateral. 
        3. Ensure the Poynt is prominently marketed by the Partner at least equal to any other Payment terminal or similar platform. 
        4. Do not market the Authorized Products and any associated offers under the Poynt name without explicitly presenting it on behalf of the Reseller. 
        5. Submit to Poynt marketing for approval Marketing Materials utilizing Poynt Authorized Products and/or services prior to publication or broadcast. 
        6. Ensure that its marketing support materials are current with Poynt’s product line at all times; marketing materials shall be provided to Partner free of charge.
      2. Provide reasonable and appropriate technical support for demonstrations, benchmarks and general sales promotion, as well as for exhibitions and promotional seminars.
      3. Retain Poynt’s labels and marks on the Products and only add other labels, tags or marks with Poynt’s consent Load all necessary processor and encryption keys in accordance with payment industry standards and practices. 
      4. When reselling and supporting Poynt Software Platform:
        1. Provide Level 1 support for the merchant or ISO on any issues involved with the on boarding of a new account or servicing of an ISO. The Partner must provide initial triage of the support ticket before requesting Poynt’s assistance.
        2. Train the merchant or the sub distributor on how to use the Poynt terminal and backend Merchant HQ. 
        3. Provide regular training sessions on the product and features of the Poynt system.
        4. Onboard all Merchant accounts on Poynt’s back office before activating the account.  
        5. Take the necessary steps to avoid attrition of accounts by providing outstanding service to the merchant
      5. When distributing Poynt Capital Services, the Partner will adhere to requirements set forth in Exhibit G.

EXHIBIT C: Poynt Support Services

Poynt Support Services

Poynt provides a variety of services to support the Authorized Products. 

 

Level One Support Services: Level One Support will be provided by the Partner twenty four (24) hours a day, seven (7) days a week and include, but not be limited to, hardware triage, end user inquiries relating to installation, basic functionality, basic user preferences, user interfaces, password resets, the existence of features, the operation of features, networking issues, printer issues, system-independent configuration issues, or any other basic aspect of the installation, RMA management, configuration, operation, merchant account activation, or functionality of Authorized Products. Level One Support also includes supports during the on-boarding and activation process. Support agents must be familiar with all aspects of Poynt’s management portal (Mission Control/Reseller Portal). 

 

Level Two Support Service: Level Two support is a technical support service (as further defined below) to address complex issues or program errors that cannot be resolved by Level One support. Level Two support is available to all Partners for all Authorized Products. Poynt will provide email and chat support in English to Partner. Refer to the tables below for more details regarding severity levels and response times. 

 

Level Two Severity Levels

Poynt will assign a severity level to each reported issue in accordance with the following criteria. 

 

Severity

Name

Description

1

Severe

Unable to perform any transactions or settlements, critical impact on operations

2

Urgent

Unable to perform transactions but some workaround available, operations severely impacted

3

Functional

Able to use system, operations degraded

4

Procedural

Procedure presently available to circumvent or Design Change Request (DCR) authored

5

Enhancement

Enhancement request only

 

Level Two Expectation and Response Times

Poynt shall use commercially reasonable efforts to meet the following target response times.  Such target response times reflect elapsed time from initial notification to Poynt of support requests.  

 

Problem Classification

Initial Response Back

Initial Action Plan

Severity 1

1 hour

4 hours

Severity 2

4 hours

1 day

Severity 3

2 days

5 days

Severity 4

4 days

10 days

 

Obligations of Partner 

Partner shall provide Poynt with contact information for its technical staff member(s) who are authorized to contact Poynt for Level Two support. Partner and Poynt agree and acknowledge that the Level One support to be provided by Partner shall endeavor to screen out all problems that have causes other than the Authorized Products.  The Partner agrees to execute any first level triage in relation to Authorized Product prescribed by Poynt and within the capacity of its abilities. The Partner 

shall provide Poynt with support contacts and any other authorized alternates who may contact Poynt support.  Only technically qualified personnel may contact Poynt support. Partner support staff will attend at least one training webinar a quarter to learn about new features, troubleshooting steps and other topics. 

 

Exclusions

Poynt shall have no obligation to provide support for service problems caused by (i) Partner's or a customer's negligence, abuse or misapplication, (ii) use of services other than as specified herein; (iii) causes beyond the control of Poynt; or (iv) any terminal communication software installed on any hardware that is not supported by Poynt.  Poynt is not responsible for providing any support for third party applications or Partner developed applications.

 

 

EXHIBIT E: Poynt App Marketplace

 

1.1. App Center & Poynt App Center Apps. Poynt shall make available the App Center and App Center Apps to Partner and the Merchants pursuant to the terms set forth herein.  A copy of Poynt’s App Center principles can be found at https://poynt.github.io/developer-docs/appStore/app-ecosystem.html

 

1.2. Terms of Use. The access and use of App Center and App Center Apps by Partner and the Merchants shall be subject to the terms of use, an example of which can be found at https://poynt.com/terms-of-use/  (“Terms of Use”). 

 

1.3. Unsafe, Inappropriate or Abusive Applications. Partner may request Poynt, at any time, to remove any App Center Apps that may be deemed by Partner to be abusive, in violation of Law or displaying objectionable content.





EXHIBIT F: Poynt Payment Processing Distribution Program 

Purposely omitted 

 

EXHIBIT G: Poynt Capital Distribution Program 

  1. Referral Program. Partner who offers credit card processing services to merchants shall refer to Poynt, Customers that are candidates (as reasonably determined by Partner) for Poynt Capital Service with Poynt.  During the term of this Agreement, Partner acknowledges that in the referral of Customers to Poynt, Partner shall have no authority to bind Poynt and further acknowledges that Poynt relationships with accepted Customers shall be governed by Poynt Capital Agreement.  

 

Action 

Description 

Merchant Perspective

Merchant is referred by Partner to Poynt and Poynt offers service to Merchant

Setup - Marketing 

Poynt and Partner work together to develop marketing plans; develop marketing collateral (emails, banners etc); and training (if required).

Poynt Merchants Sign-up

Poynt will manage the entire one-touch marketing and sales program by providing pre-approved Poynt Capital programs to qualified Poynt merchants via email, web banners and terminal marketing. The target merchants will sign up for the Poynt Capital Offer via a signup page hosted by Poynt Capital and agree to the terms and conditions plus provide the funding account used for credit card processing 

Partner Merchants Sign-up

The Partner will provide referral merchants who are using the Poynt Terminals or Partner’s credit card processing (Poynt customers and other merchants) to Poynt Capital. Where required they will help provide information required by Poynt Capital to do the underwriting process. Based on the information provided Poynt Capital will provide a pre-approved funding offer to the merchant and direct them to a sign-up page hosted by Poynt Merchant Capital and agree to the terms and conditions.  

Underwriting 

Poynt Capital will be solely responsible for the entire underwriting process of any Merchant Cash Advance (“MCA”) or Loan offered to a qualified merchant. 

Support 

Poynt provides L1 support for all Processing and Poynt software questions and Partner for Partner’s Software related questions.

Receive Funds

Merchant receives funds from Poynt Capital programs

Payment of Funds 

Payment of Funds will be automatically deducted from the Merchant’s Processing Bank Account. 

Delinquent Accounts 

The Partner may be asked to assist Poynt Capital in assisting in the remediation of delinquent merchant accounts. 

Reporting

Poynt Merchant uses Poynt Merchant HQ- Poynt Capital for all Poynt Capital Reporting.  Any merchant that is not using Poynt Product Software and Services will receive access to a separate Poynt Capital Portal. 

1099k

Merchant receives 1099 K from Poynt

 

  1. Revenue Share. The Revenue Share participation will be set for each type of Poynt Capital program. 
    1. MCA (Merchant Cash Advance) Revenue Share. Poynt Capital will provide the Partner with a revenue share of 1.6% of the Merchant Cash Advance.  The Portion of the Revenue Share will be paid based on the percentage of the MCA repayment made at the time the referral fee is due. 

For example, if Poynt Capital funds and MCA for $20,000, the Partner will have the opportunity to earn a total of $320 (1.6% x $20,000) in revenue share. If 50% of the MCA has been paid by the merchant, Poynt Capital will pay 50% of the revenue share or $160. 

  1. Payments to Partner.  Subject to the terms of this Schedule and the Agreement, Poynt will pay to Partner the referral fees as set forth below.
    1. Qualification for Fees.  Notwithstanding anything else in this Agreement, only Merchants who are in good standing (paying their Poynt Capital accounts on time); who enter into a Merchant Agreement with Poynt as a result of Partner’s efforts hereunder will be included for purposes of calculating referral fees under this Agreement. For avoidance of doubt with respect to any i) Merchant with which Poynt may sign a Poynt Capital Fee independently of any referral by Partner, including any Merchant with which Poynt was having discussions prior to such referral by Partner; or ii) any Merchant that is delinquent in its Poynt Capital Payment, no referral fees will be paid.
    2. Payment of Fees. Poynt Such referral shall be calculated and paid by Poynt quarterly, on or before the 25th day of the month following the period for which such referral fees are calculated. In the event of any termination of this Agreement, Poynt’s obligation to pay such referral or reseller fee to Partner shall terminate.