Welcome to Poynt.
Please carefully read the terms and conditions of this end-user license agreement (the “License”) before using the Software.
This License is a legal, binding and enforceable contract between you and Poynt Co., a company duly organized and validly existing under the laws of Delaware, with its head offices located at 4151 Middlefield Rd, CA, 94303, City of Palo Alto, State of California, 94303, USA (“Poynt”, “we” and “us”).
By clicking on the “I AGREE” button, installing, activating or using the Software, 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.
Your use of the Software 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.
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, 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 itself and reserve all rights not expressly granted to you. The terms of this License will govern any Software upgrade we provide you to replace and/or supplement the original Software, unless such upgrade is accompanied by separate license terms in which case these new terms will apply in relation to the upgrade.
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 and Software, Poynt grants you (either a legal entity or an individual) a non-exclusive, non-transferable, limited license to use the 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 that such Authorized Users are notified of the terms and conditions of this License prior to using the Software. You will also ensure that all use of the Software by such Authorized Users is in accordance with the terms of the License.
1.3 This License for the Software 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 that may be made available to you.
1.4 If you use the Software 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 may be dependent on additional terms and conditions.
2. Poynt Marketplace
2.1 The Software may enable you to access our marketplace ("Poynt Marketplace") 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").
2.2 By using the Poynt Marketplace you agree to the latest Poynt Marketplace terms and conditions, which you may access by clicking on here 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.
2.3 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.
3.1 Whilst 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:
(a) Poynt's role is to capture and securely transmit Transaction Data and Cardholder Data to your acquiring service provider;
(b) Poynt is not responsible for authorising card payment transactions and Poynt does not at any time come into possession of the funds to be transferred;
(c) 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, 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 EULA 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
(d) 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. If your acquiring service provider is set out in this list, Sections 3.4, 3.6 and 8.2 will apply where we are processing your Transaction Data and Cardholder Data. However, in all other cases where we are processing your Transaction Data and Cardholder Data, Sections 3.4, 3.6 and 8.2 will not apply and Section 8.3 will apply instead.
3.4 Where Poynt is processing Transaction Data and Cardholder Data on your behalf through the Poynt Gateway, Poynt shall be solely responsible to you for:
(a) 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
(b) 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 line with Section 8.2.
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 authorised representative in providing or receiving the Transaction Data and Cardholder Data on your behalf.
4. License Restrictions
4.1 You may use the Software 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:
(a) use or copy the Software, except as expressly permitted in this License;
(b) translate, reverse engineer, decompile or disassemble the Software, except to the extent that:
(i) 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
(ii) 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;
(c) 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;
(d) 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;
(e) modify or delete any copyright, trademark, or other proprietary rights notice on any medium contained in the Software and/or related Documentation, or copy (to the extent permitted by this or Applicable Law) any Software or related Documentation without reproducing Poynt’s copyright, trademark or proprietary rights notices on each copy;
(f) use, copy, modify or create new activation codes except as expressly permitted in this License;
(g) modify the Terminal or use it with another program unless approved by Poynt in writing; or
(h) 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 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 copy rights (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 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 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 and/or Documentation, independently of their term of use.
7.1 You acknowledge that the business and technical information you receive from Poynt and its third-party partners (including without limitation the Software 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 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. Privacy and Data Protection
8.1 As stated above in Section 3.3, Poynt may be handling your Personal Data, and may have different roles and responsibilities, depending on your acquiring service provider and the services you access. If your acquiring service provider is set out in this list, Section 8.2 will apply. In all other cases Section 8.3 will apply.
8.2 Poynt as Processor to you
8.2.1 Definitions: In this Section 8, the following terms shall have the following meanings:
(a) "Applicable Data Protection Law" means all applicable international, federal, national and state privacy and data protection laws that apply to the processing of Personal Data that is the subject matter of this License (including, where applicable, European Data Protection Law).
(b) "Controller" and means the entity that determines the purposes and means of the processing of Personal Data.
(c) "European Data Protection Law" means EU General Data Protection Regulation 2016/679 and any applicable national implementation of it.
(d) "Personal Data" means any information relating to an identified or identifiable individual; an identifiable individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that individual.
(e) "Processor" means an entity that processes Personal Data on behalf of the Controller.
(f) "Standard Contractual Clauses" means the standard contractual clauses for the transfer of personal data to processors established in third countries, pursuant to the European Commission Decision C(2010)593 in the form set out here.
8.2.2 Relationship of the parties: You are the Controller and appoint Poynt as a Processor to process the Transaction Data and Cardholder Data on your behalf.
8.2.3 Details of the processing: The subject matter, nature and duration of the processing, as well as the type of personal data and categories of individuals are set out in the Standard Contractual Clauses Appendix 1.
8.2.4 Purpose limitation: Poynt shall process the Transaction Data and Cardholder Data as a Processor only as necessary to use the Poynt Gateway under this Licence, and strictly in accordance with your documented instructions (including those in this Licence). In no event shall Poynt process the Transaction Data and Cardholder Data for its own purposes or those of any third party. Notwithstanding the foregoing, you acknowledge that Poynt shall have a right to use and disclose Transaction Data and Cardholder Data relating to the operation, support and/or use of the Software for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. Poynt also uses aggregated de-identified data for analytical purposes. To the extent any such data is considered Personal Data, Poynt is the Controller of such data and shall process such data in accordance with Applicable Data Protection Law.
8.2.5 International transfers of Data: Poynt will at all times provide an adequate level of protection for the Data, wherever processed, in accordance with the requirements of Applicable Data Protection Law. Without limiting the generality of the foregoing, Poynt shall only process or transfer any Transaction Data and Cardholder Data originating from the European Economic Area ("EEA") in or to a territory which has not been designated by the European Commission as providing an adequate level of data protection under the Standard Contractual Clauses which are hereby incorporated into this Licence. In the event of any conflict between the Standard Contractual Clauses and the main body of this Licence, the Standard Contractual Clauses shall control. You agree that you are a "data exporter" and Poynt is the "data importer" under the Standard Contractual Clauses (notwithstanding that you may be located outside of the EEA). You agree that the Standard Contractual Clauses shall not apply in the event that Poynt adopts an alternative valid transfer mechanism, in which case the alternative transfer mechanism shall apply.
8.2.6 Confidentiality of processing: Poynt shall ensure that any person that it authorises to process the Transaction Data and Cardholder Data (including Poynt staff, agents and subcontractors) shall be subject to a strict duty of confidentiality (whether a contractual duty or a statutory duty), and shall not permit any person to process the Personal Data who is not under such a duty of confidentiality.
8.2.7 Security: Poynt shall implement appropriate technical and organisational measures to protect the Personal Data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Data (a "Security Incident"), as detailed in Appendix 2 to the Standard Contractual Clauses.
8.2.8 Security incidents: Upon becoming aware of a Security Incident, Poynt shall inform you without undue delay and shall provide timely information and cooperation to enable you to fulfil your data breach reporting obligations under Applicable Data Protection Law. Poynt shall further take such reasonable measures to remedy or mitigate the effects of the Security Incident and shall keep you informed of developments in connection with the Security Incident. Poynt shall not notify any third parties of a Security Incident affecting the Personal Data unless and to the extent that: (a) you have agreed to such notification, and/or (b) notification is required to be made by Poynt under Applicable Data Protection Laws.
8.2.9 Subcontracting: Poynt shall not subcontract any processing of the Transaction Data and Cardholder Data to a third party sub-Processor unless: (i) Poynt provides you with an up-to-date list of its then-current sub-Processors upon request; and (ii) Poynt provides at least thirty (30) days' prior notice of the addition or removal of any sub-Processor. If you object to Poynt's appointment of a third party sub-Processor on reasonable grounds relating to the protection of the Data, then the parties agree to cooperate in good faith to find a mutually acceptable solution. Poynt shall impose materially the same data protection terms on any sub-Processor it appoints as those provided for by this Licence and Poynt shall remain fully liable for any breach of this Licence that is caused by its sub-Processor.
8.2.10 Cooperation and individuals' rights: Poynt shall provide all reasonable and timely assistance to enable you to respond to: (i) any request from an individual to exercise any of rights under Applicable Data Protection Law; and (ii) any other correspondence received from a data protection regulator in connection with the processing of the Personal Data. In the event that any such communication is made directly to Poynt, Poynt shall promptly inform you providing full details of the same and shall not respond to the communication unless specifically required by law or authorized by you.
8.2.11 Data Protection Impact Assessment: Taking into account the nature of the processing and the information available to the Poynt, Poynt shall provide you with reasonable and timely assistance with any data protection impact assessments and, where necessary, consultations with data protection authorities, where required under Applicable Data Protection Law.
8.2.12 Deletion or return of Personal Data: Upon termination or expiry of this Licence, Poynt shall (at your election) delete or return all Transaction Data and Cardholder Data in its possession or control. This requirement shall not apply to the extent that Poynt is required by applicable law to retain some or all of the Transaction Data and Cardholder Data, in which event Poynt shall isolate and protect the Personal Data from any further processing except to the extent required by such law.
8.2.13 Provision of documentation and information: Poynt shall promptly provide such reasonable information, documentation and written responses to questions that you (or your appointed representatives) requests to assess Poynt's continued compliance with this Licence.
8.3 Poynt processing on behalf of your acquiring service provider
8.3.1 Your acquiring service provider will be responsible for the processing of your Transaction Data and Cardholder Data and such processing will be subject to your acquiring service provider's terms and conditions. In such cases where Poynt will process any Transaction Data and Cardholder Data on the instructions of and in accordance with our data processing agreement with, your acquiring service provider.
8.4 Other Personal Data
8.4.3 Poynt takes reasonable and appropriate measures to maintain the confidentiality and security of your Personal Data and any merchant data and to prevent the unauthorized use or disclosure of your Personal Data. You can request access to your Personal Data that Poynt maintains about you by contacting us at email@example.com.
8.4.4 To protect your privacy, Poynt will take reasonable steps to verify your identity before granting access to or making changes to your Personal 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 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 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:
(a) you must stop all activities authorized by this License, including your use of the Software;
(b) you will:
(i) return the Terminal to Poynt or your Reseller (where applicable); or
(ii) as and when possible, destroy, delete or remove all copies, full or partial, of the Software and all activation codes; and/or
(c) 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 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 or Software, (v) repair, correction or modification of the Software 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, 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.
12.1 If any claim is brought against you by a third party claiming that the Software 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, (ii) replace or modify the Software 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 wilful 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:
(a) 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.
(b) Poynt's total aggregate liability whether in contract, tort (including negligence) or otherwise and whether in connection with this License, use of the Terminal, 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:
(a) death or personal injury caused by the negligence of Poynt, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation; and/or
(c) 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, 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 related materials, or direct products thereof, in contravention of these laws and regulations.
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, 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, 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 firstname.lastname@example.org. 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.
"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.
"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, 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 Marketplace.
"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.