END USER LICENSE AGREEMENT

WELCOME TO POYNT. PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS END-USER LICENSE AGREEMENT (THE “AGREEMENT”) BEFORE USING THE SOFTWARE (AS DEFINED BELOW).

THIS AGREEMENT 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 490 S. CALIFORNIA AVENUE, 200, CITY OF PALO ALTO, STATE OF CALIFORNIA, 94306, USA (“POYNT”, “WE” AND “US”).

BY OPENING THIS PACKAGE, 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 AGREEMENT AND THAT YOU AGREE TO ITS TERMS. YOU MUST AGREE TO AND ACCEPT ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT, OR YOU DO NOT HAVE THE RIGHT TO USE THE SOFTWARE.

IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK ON THE “CANCEL” BUTTON AND/OR DO NOT INSTALL OR ACTIVATE OR USE THE SOFTWARE.

YOUR USING THE SOFTWARE IN ANY WAY MEANS THAT YOU AGREE TO ALL OF SUCH TERMS AND CONDITIONS, AND THE AGREEMENT WILL REMAIN IN EFFECT WHILE YOU USE THE SOFTWARE.

IF YOU ARE A CONSUMER, YOU MAY HAVE CERTAIN STATUTORY RIGHTS THAT CANNOT BE MODIFIED BY CONTRACT. NO PROVISION IN THIS AGREEMENT SHALL HAVE THE EFFECT OF MODIFYING THOSE STATUTORY RIGHTS TO THE EXTENT SUCH MODIFICATIONS ARE EXPRESSLY PROHIBITED BY APPLICABLE LAW.

ATTENTION: REDISTRIBUTION NOT PERMITTED. THIS AGREEMENT INCLUDES A LICENSE FOR SOFTWARE; IT DOES NOT PROVIDE FOR A SALE OF ANY INTELLECTUAL PROPERTY RIGHTS AND IS NOT INTENDED TO TRANSFER ANY INTELLECTUAL PROPERTY RIGHTS TO YOU. THE SOFTWARE IS PROVIDED UNDER THE FOLLOWING TERMS AND CONDITIONS.

1. LICENSE

Poynt provides to you, as either a legal entity or an individual, the Software. Unless Poynt otherwise specifically agrees in writing, you have an indefinite term, non-exclusive, non-transferable, limited right to use the Software solely in conjunction with the Terminals or other devices, as applicable, and the corresponding Documentation (defined below), in accordance with the terms of this Agreement (“License”). “Documentation” means the Software user manuals, operating instructions, specifications, installation guides and/or related documentation generally made available to licensees of the Software. This License is granted to you individually, or if you are authorized to acquire Software on behalf of your company or another organization, then to the entity on whose behalf you act. “Terminal” means 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.

You agree to use the Software only on the Terminal or other client devices that Poynt has authorized in writing, as applicable. The maximum number of users of the Software at any one time, and/or the maximum number of Terminal or other devices on which the Software may be installed and used at any one time, is the number (i) specified in the purchase order(s) accepted by Poynt or its authorized reseller, (ii) set forth in the accompanying Documentation or (iii) otherwise specifically authorized by Poynt or its authorized reseller in writing.

Your use of certain Software may also be subject to separate terms of use and policies, which be provided by Poynt. You agree to comply with such terms and policies in addition to the terms and conditions of this Agreement.

You agree to load and use the Poynt activation codes only into and with the Software with which the Terminal or other client devices before using the Software that has been licensed to operate. You acknowledge that each activation code is intended to associate a single Terminal or other device with such licensed Software and will not be used to associate such devices with any other program or platform unless otherwise expressly and previously authorized by Poynt in writing. You further acknowledge and agree that you are solely responsible for maintaining the confidentiality of all activation codes.

You agree to ensure that any employees, agents or other parties who will use the Software are notified of the terms and conditions of this Agreement prior to such employee, agent or party using the Software and further ensure that all such use of the Software by such employees, agents or parties is in accordance with the terms of the Agreement.

This License for the Software is conditioned upon payment of all 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, subject to payment of the applicable Maintenance and Support Services fees or other applicable fees. “Maintenance and Support Services” means the technical support and maintenance services for the Software under Poynt’s then-current policies for the relevant Software.

If you use the Software to sell goods or services at your merchant business and use a payment system other credit or debit card, then you hereby agree to all terms and conditions of Poynt’s Transaction Processing Policy. “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 Agreement, including PoyntOS, Poynt Terminal Management software and any programs embedded in the Terminals or designed for installation and use on other client devices, as determined on the applicable License, as well as any patch, fix, update or upgrade provided as part of the Maintenance and Support Services or otherwise. Software does not include Poynt Store Products (as defined in the Poynt Store Terms of Use available at www.poynt.com/legal). “Services” means the Maintenance and Support Services, as well as other services made available to you pursuant to a separate agreement with Poynt, excluding any warranty services provided under this Agreement.

2. LICENSE RESTRICTIONS

You may use the Software only for your internal business purposes or such other purposes as specifically authorized by Poynt or its authorized reseller in writing.

You must not:

a) use or copy the Software, except as expressly permitted in this Agreement;

b) translate, reverse engineer, decompile or disassemble the Software, except to the extent the foregoing restriction is expressly prohibited by applicable mandatory law;

c) rent, lease, assign or otherwise transfer the Software, Terminal and/or activation codes except as expressly agreed by Poynt 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 Agreement 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 Agreement;

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 device in a different device to which the License was granted.

3. REPRESENTATION AND WARRANTIES

You represent and warrant the following: (i) you are an independent corporation duly organized, validly existing and in good standing under the laws of jurisdiction of your 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 corporate power, authority and legal right to execute and perform this Agreement and to carry out the transactions and its obligations contemplated by this Agreement.

You represent, warrant, and covenant 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 its obligations under this Agreement; (ii) all of the information disclosed to Poynt or its partners, suppliers, or licensors in connection with this Agreement 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.

Each party represents and warrants that (i) once duly executed by the party this Agreement shall constitute valid and binding obligations on the party, enforceable in accordance with its terms; (ii) except as otherwise stated in this Agreement, 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 Agreement and perform its obligations; and (iii) the execution of this Agreement, nor the consummation by the party of this Agreement will not (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 (defined below).

"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 (defined below), 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 Agreement. "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.

4. INTELLECTUAL PROPERTY OWNERSHIP

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”), related to the Software and/or Services.

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 or proprietary rights in and/or to the Software, Services and/or Documentation, except the limited use rights granted under the License.

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, Services and/or Documentation, including any improvement or development thereof. To the extent such rights may be inalienable, you agrees 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 shall obtain the execution of 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.

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

5. CONFIDENTIALITY

You acknowledge that the business and technical information you receive from Poynt and its third-party partners (including without limitation, the Service, 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.

You will not disclose, in whole or in part, the Confidential Information to any individual, entity or other person, except to those of your employees who (i) require 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 Agreement. 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. 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.

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 Agreement, (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 Agreement or at the written request of Poynt, you will promptly return or destroy all material embodying the Confidential Information.

6. PRIVACY AND DATA PROTECTION

In addition to the privacy and data protection terms and conditions set forth below, your use of the Software shall be subject to the Privacy Policy. Poynt may need to change the Privacy Policy from time to time, but we will alert you to changes by placing a notice on Poynt’s website, by email, and/or by some other means. “Privacy Policy” means Poynt’s privacy policy, available at www.poynt.com/privacy. If you use the Software after any changes to the Privacy Policy have been posted, that means you agree to all of the changes. Use of information we collect now is subject to the Privacy Policy in effect at the time such information is collected.

Poynt may collect certain personal information and personally identifiable information about you (“Personal Data”) in the process of installation or activation of the Software or in the process of using the Software or receiving the Services by accessing or using the Terminal, you consent to the transfer of your Personal Data to jurisdictions that may not provide an equivalent level of protection as the laws in your home jurisdiction.

In addition to the uses authorized by the Privacy Policy, Poynt and its affiliates may use and process your Personal Data for the purposes of providing you with the Software and Services requested, to respond to your inquiries and requests, to provide customer support activities and to operate Poynt’s business activities.

Additionally, you understand that the Software and Terminal may provide functionality that allows you and/or your end customers (“Customers”) to send data and information to Poynt, which may include without limitation data or information regarding or relating to such Customers (collectively, “Merchant Data”). Except as permitted in this Section 6, Poynt will not use or disclose to any third party such Merchant Data. Poynt may (but shall not be obligated to) retain Merchant Data after termination or expiration of this Agreement; provided that it continues to comply with all of its obligations herein with respect to such Merchant Data.

“Customer Identifiers” means all information or data regarding a Customer (excluding information or data regarding specific payment transactions, but including, without limitation, such Customer’s card information, email address, phone number, or other personal identifiers). You acknowledge that during and after the term of this Agreement, Poynt may freely share and use Customer Identifiers (including, without limitation, with other Poynt customers) in connection with Poynt’s business, subject to the Privacy Policy; provided that Poynt will not share Customers’ card information with any third party other than those that are necessary for Poynt to provide the Software and Services.

“Aggregated De-identified Data” means Merchant Data and other data submitted to, collected by or generated by Poynt in connection with your use of the Software, Services, and/or Terminal, but only in aggregate, de-identified form which can in no way be linked specifically to you or any Customer. You acknowledge and agrees that during and after the term of the Agreement, Poynt may (i) internally use and modify (but not disclose) Merchant Data solely for the purposes of generating Aggregated De-identified Data, and (ii) freely use and make available Aggregated De-identified Data for Poynt’s business purposes.

“Customer Transaction Information” means transaction data regarding a purchase, including but not limited to the date, items purchased, and pricing information associated with and particular to a specific Customer. Poynt may (i) provide Customer with access to his or her Customer Transaction Information; and (ii) subject to such Customer’s consent, freely use or share his or her Customer Transaction Information in compliance with the Privacy Policy.

Poynt takes reasonable and appropriate measures to maintain the confidentiality and security of your Personal Data and the Merchant Data and to prevent the unauthorized use or disclosure your Personal Data. You can request access to your Personal Data that Poynt maintains about you by contacting us at privacy@getpoynt.com.

To protect your privacy, Poynt will take reasonable steps to verify your identity before granting access to or making changes to your Personal Data.

7. TERM AND TERMINATION

The term of this Agreement commences upon the earliest of you (i) accepting (by means of clicking on the “ACCEPT” button) the terms and conditions contained herein, (ii) installing or activating the Software, and/or (iii) using or allowing use of the Software.

Your use of the Software provided pursuant to this Agreement 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 applicable then-current renewal fees, if applicable.

You may terminate this Agreement at any time without right to refund. This Agreement will automatically terminate if you (i) fail to comply with any of its terms or conditions; (ii) fail to renew the License and pay the applicable fees, if applicable; or (iii) otherwise fail to pay amounts due on a timely basis. This Agreement will terminate automatically if you become insolvent or enter into bankruptcy or any other proceeding that relates to insolvency or protection of creditors’ rights.

Upon the termination of this Agreement for any reason, all rights granted to you hereunder will cease. You agree, upon termination, to destroy all copies of the Software, including, but not limited to, any Software embedded in client devices and all activation codes. The Confidentiality and Indemnity provisions, and the Limitations of Warranties and Liability set forth in this Agreement shall continue in force even after any termination.

8. LIMITED SOFTWARE WARRANTY

Except as otherwise provided by Applicable Law, or as agreed to with Poynt pursuant to a separate agreement, Poynt warrants that the Software will be substantially conforms to Poynt’s published product specifications in effect on the date of delivery and will performs substantially as described in the Documentation for a period of ninety (90) days. You acknowledge that (i) the Software was developed for generic use and was not customized, so they may not satisfy all of your 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.

ALL UPGRADES OR NEW VERSIONS OF THE SOFTWARE ARE OFFERED AS SEPARATELY-PRICED ITEMS, UNLESS OTHERWISE AGREED BY POYNT IN WRITING. POYNT DOES NOT HAVE CONTROL OF, ASSUMES NO LIABILITY FOR AND DOES NOT PROVIDE ANY WARRANTY OR OTHER SIMILAR ASSURANCE FOR ANY THIRD PARTY SOFTWARE.

In case of a 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 the Poynt Maintenance and Support Services’ policies. You acknowledge that this is the sole and exclusive remedy and Poynt’s exclusive liability for any breach of warranty related to the quality of the Software.

9. NO IMPLIED SERVICE WARRANTY

EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, OR AS AGREED TO WITH POYNT PURSUANT TO A SEPARATE AGREEMENT, ALL 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 POYNT’S THEN-CURRENT APPLICABLE CHARGES.

Poynt has no control of, assumes no liability for and does not provide any warranty or other similar assurance for any services made available through or provided by independent third parties, except as and to the extent Poynt has otherwise expressly agreed or as required under Applicable Law.

10. DISCLAIMER OF WARRANTY

The limited warranties set forth in Sections 8 do not apply to the extent any defects or malfunctions in the Software, Terminals or Services result from extrinsic causes, such as (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 any warranty defect documentation, (iv) any other abuse, misuse, accident, alteration, or neglect of the Software, (v) repair, correction or modification of the Product not provided or authorized by Poynt or (vi) the combination of the Product with software or services not provided or authorized by Poynt.

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 ABOVE AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAWS, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY POYNT OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS PROVIDED FOR IN SECTIONS 9 AND 10, AS WELL AS THE LIMITATIONS SET FORTH IN THIS SECTION 11, ARE AN ESSENTIAL ELEMENT OF THESE TERMS AND CONDITIONS AND THAT IN THE ABSENCE OF SUCH LIMITATION THE PRICES AND OTHER TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

11. INDEMNITY

If any claim is brought against you claiming that the Software infringes any Intellectual Property right, Poynt will defend you at Poynt’s expense and, subject to this section and Section 12, pay the damages and costs finally awarded against you in the infringement claim, but only if (i) you notify Poynt promptly upon learning that the claim may be asserted, (ii) Poynt has sole control over the defense 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.

If a claim described in this section may 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 Software and refund to you the amount actually paid to Poynt for such Software, less depreciation based on a twenty-four (24) month straight line depreciation schedule.

Poynt will have no indemnity obligation to you if the Intellectual Property infringement claim results from (i) a correction or modification of the Software not provided by Poynt, (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 Agreement. 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.

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

12. LIMITATION OF LIABILITY

To the maximum extent allowed by Applicable Laws, NEITHER POYNT NOR ITS RESELLERS, LICENSORS OR SUPPLIERS SHALL, UNDER ANY CIRCUMSTANCES, HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA OR DOWNTIME OR OTHER COMMERCIAL OR ECONOMIC LOSS, 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. To the maximum extent allowed by Applicable Laws, IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH POYNT, OR ITS RESELLERS, LICENSORS AND SUPPLIERS MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU FOR THE RESPECTIVE POYNT PRODUCT and/or service THAT DIRECTLY CAUSED THE DAMAGE.

THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY DESPITE THE FOREGOING EXCLUSION AND LIMITATION. SOME COUNTRIES DO NOT ALLOW THE LIMITATION OF CONSEQUENTIAL OR INDIRECT DAMAGES IN CONTRACTS WITH CONSUMERS SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

13. 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.

14. GENERAL

If there is any inconsistency between this Agreement and any software license or end user agreement (other than this Agreement) provided in the packaging or accompanying materials of any portion of the Software, the provisions of this Agreement shall apply to the extent of the inconsistency. If there is any inconsistency between this Agreement 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 Agreement 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.

If this Agreement 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 Agreement 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.

This Agreement will be governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws’ provisions thereof. For purposes of determining the governing law, you understand and acknowledge that Poynt is the proponent of these Terms. 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. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California by and interpreted in accordance with the laws of the State of Illinois, U.S.A, if you are located in North, South, Central America or the Caribbean, and will be interpreted in accordance with the laws of Switzerland if you are located in any other region than North, South, Central America or the Caribbean. Any dispute, claim or controversy arising out of or relating to this Agreement shall be submitted to binding arbitration in the state of Illinois pursuant to the AAA rules of arbitration, if you are located in North, South, Central America or the Caribbean, and shall be submitted to binding arbitration in Switzerland pursuant to the ICC rules of arbitration if you are located in any other region than North, South, Central America or the Caribbean. You and Poynt exclude the application of the United Nations Convention on Contracts for the International Sale of Goods from this License. Poynt may, at its sole discretion, seek injunctive relief or file for collection of debt in the courts with appropriate jurisdiction as may be necessary and appropriate.

If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, in whole or in part, such provision shall be severed from the Agreement and the other provisions shall remain in full force and effect.

Except as otherwise provided in this Agreement, or as agreed to with Poynt pursuant to a separate agreement, all notices or approvals required or permitted under this Agreement must be given in writing to Poynt at agreements@poynt.com. Any waiver or modification of this Agreement 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 Agreement electronically. Electronic notice to you shall be deemed to have been duly given when transmitted to an address furnished by You to Poynt.