PLEASE READ THE TERMS CAREFULLY BEFORE ACCESSING, VIEWING, DOWNLOADING OR OTHERWISE USING THE POS SYSTEM

IMPORTANT NOTICES

YOU MUST BE AT LEAST 18 YEARS OF AGE AND HAVE THE FULL RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS END USER LICENSE AGREEMENT (“EULA”) (IF YOU ARE ACCEPTING THIS EULA ON BEHALF OF AN ENTITY, YOU PERSONALLY REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS EULA).  ALL REFERENCES HEREIN TO “LICENSEE” REFER TO THE PERSON OR ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS EULA (WHETHER ON YOUR OWN BEHALF OR BEHALF OF A THIRD PARTY ENTITY).  THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU, LICENSEE AND POS ON CLOUD, LLC D/B/A NEWTEK PAYMENT SYSTEMS (“LICENSOR”) FOR THE POS SYSTEM (AS DEFINED BELOW), INCLUDING ANY UPDATES, UPGRADES AND MODIFICATIONS TO THE POS SYSTEM THAT MAY BE PROVIDED TO YOU BY LICENSOR.  ANY OTHER SOFTWARE OR CONTENT PROVIDED ALONG WITH, OR ACCESSED THROUGH, THE POS SYSTEM THAT IS ASSOCIATED WITH A SEPARATE AGREEMENT IS LICENSED TO LICENSEE UNDER THE TERMS OF THAT AGREEMENT.  LICENSOR IS WILLING TO LICENSE THE POS SYSTEM TO LICENSEE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS EULA ON BEHALF OF LICENSEE.

BY CLICKING “I ACCEPT” AT THE END OF THIS AGREEMENT OR BY ACCESSING THE POS SYSTEM YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND THAT LICENSEE AGREES TO BE BOUND BY ITS TERMS.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS, VIEW, DOWNLOAD OR OTHERWISE USE THE POS SYSTEM (AND DO NOT PERMIT LICENSEE TO DO SO IF DIFFERENT THAT YOURSELF).

IF YOU DO NOT AGREE WITH THIS AGREEMENT, LICENSEE IS NOT GRANTED PERMISSION BY LICENSOR TO ACCESS, VIEW, DOWNLOAD OR OTHERWISE USE THE POS SYSTEM.  IN SUCH CASE, PLEASE CLICK “I REJECT” AND PROMPTLY RETURN AND/OR DELETE ANY MATERIALS RELATED TO THE POS SYSTEM, IF ANY, THAT YOU (OR LICENSEE) HAVE RECEIVED FROM LICENSOR OR THAT YOU (OR LICENSEE) OTHERWISE HAVE IN YOUR (OR ITS) POSSESSION.

THE POS SYSTEM IS A VALUABLE AND PROPRIETARY ASSET OF LICENSOR.  LICENSEE IS HEREBY NOTIFIED THAT ANY VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY RESULT IN DIRECT AND CONSEQUENTIAL DAMAGES TO LICENSOR FOR WHICH LICENSEE MAY BE HELD LIABLE.

Should you or Licensee have any questions concerning this EULA, or if you or Licensee desire to contact LICENSOR for any reason, please call customer service at (866) 820-9069.

1. 	GRANT OF LICENSE.  Licensor grants Licensee during the term of this EULA, a non-exclusive, non-transferable right and non-sub licensable license to use in accordance with the terms and conditions of this EULA for Licensee’s business use (a) one copy of Licensor’s proprietary point of sale system accompanying this EULA, including any internet-based and application-services, as it is provided for use by Licensor, including any updates, modifications, revisions and upgrades made available to Licensee by Licensor from time to time (the “Licensed Content”); and (b) any printed or electronic copy of any documentation for the Licensed Content provided by Licensor (“Documentation”) (the Licensed Content and Documentation referred to herein as the “POS System”) solely for the purpose of evaluating or operating the features of the POS System as specified in the Documentation (the “Purpose”) and in accordance with the Documentation and any performance specifications (including without limitation computer, equipment and/or communications) specified by Licensor or its agents from from time to time (the “License”).

2.	NON-EXCLUSIVE LICENSE ONLY.  The POS System is licensed to Licensee for use only in accordance with the terms and conditions of this EULA, and not sold in any sense whatsoever.  Licensee agrees that the POS System is owned by Licensor and/or its suppliers and all rights not expressly granted herein are reserved by Licensor and/or its suppliers, as applicable, and undertakes not to challenge or assist any person to challenge such rights in any manner.  Licensor and its suppliers shall at all times retain title and all ownership rights in and to the POS System, and this EULA shall not be construed in any manner as transferring any rights of ownership of the POS System or to any feature or information contained therein, except the limited rights to use as specifically stated herein. Any other use of the POS System by any other individual or entity is strictly forbidden and is a violation of this EULA.

3. 	COPYRIGHT.  The POS System is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Licensee may not remove any proprietary notice of Licensor or any of its licensors from any of the Licensed Content, printouts generated from the Licensed Content or any printed copy of the Documentation.  Licensee must reproduce and include any such proprietary notices on any printed copy of the Documentation.  License may not copy any printed materials accompanying the POS System, including its Documentation, except as expressly set forth in this EULA or with Licensor’s prior written permission of Licensor.

4. 	RESTRICTIONS.  Licensee may not sell, lease, assign, grant, transfer or otherwise make available for the benefit of others, access to or use of the POS System (where computers or equipment installed with any portion of the POS System is transferred, rented, leased or lent or passed for possession by any person other than Licensee, Licensee must completely delete the any portion of the POS System from such computers prior to such transfer, rental, lease, lending or passing for possession).  Licensee may not reverse engineer, decompile, disassemble, translate or derive the source code of the POS System.  Licensee may not modify, enhance, add on to, or create derivative works of the POS System.  Licensee may not copy or duplicate by any means, in whole or in part, the POS System.  Licensee may not “mirror” the POS System on any other server.  Licensee may not publish, distribute or publicly display the POS System or any portion thereof.  This EULA does not grant Licensee any rights in connection with any trademarks or service marks of the POS System or Licensor.  Any breach by Licensee of this Section 4 shall be deemed a blatant and flagrant violation and fundamental breach of this EULA; upon any such breach  this EULA will automatically terminate without notice and Licensor will be entitled to avail itself of any and all remedies and/or penalties available to Licensor and/or its supplier(s) under applicable law.

5.	PRODUCT UPDATES AND MAINTENANCE.  Licensee understands and acknowledges that Licensor may provide updates or maintenance to the POS System from time to time but Licensor shall have no obligation to provide any updates or maintenance to Licensee in relation to the POS System.   In case that Licensor provides any update or maintenance to the POS System, this EULA shall automatically apply to such update or maintenance, unless Licensor provides other terms along with such update or maintenance.

6.	EQUIPMENT MAINTENANCE AND TELECOMMUNICATIONS.  Computers and tablets provided by Licensor or its authorized resellers or agents as part of the POS System (“POS Equipment”) will come preloaded with third party software required to operate the POS System (“Third Party Software”), including without limitation operating system software and virus protection software.  Although the POS Equipment will come preloaded with virus protection software that Licensor deems to provide commercially reasonable protection, under no circumstances shall Licensor (or the authorized reseller or agent, if applicable) be responsible for the performance (or failure to perform) of such virus protection software.  All Third Party Software shall be licensed to Licensee by the thirty party licensor of the Third-Party Software (each, a “Third Party Licensor”) and not by Licensor (or the authorized reseller or agent, if applicable) and may be subject to separate terms and conditions with the applicable Third Party Licensor (as in effect from time to time, “Third Party Terms”).  Licensee agrees that (a) it’s use of the POS System shall constitute acceptance of  any Third Party Terms and that, if required by the applicable Third Party Licensor, it shall accept the Third Party Terms or cease further use of the POS Equipment; and (b) it shall at all times comply with Third Party Terms and shall indemnify Licensor and the authorized reseller or agent, if applicable, for any losses any of them may suffer as a result of Licensee’s non-compliance therewith.  Under no circumstances shall Licensee use the POS System or any component thereof (including without limitation the POS Equipment) for any purpose other than those identified in the Documentation; for the avoidance of doubt, the foregoing specifically prohibits Licensee’s use of the POS Equipment to access the internet other than as required by the operation of the POS System.  Client will be solely responsible for the prompt installation of any updates (including patches) made available for Third Party Software, and in any event within five (5) business days of such updates being made publicly available by the applicable Third Party Licensor.  Licensor (or the authorized reseller or agent, if applicable) may from time to time push notifications to Licensee to update Third Party Software from time to time; however, under no circumstances shall Licensor (or the authorized reseller or agent, if applicable) be required to do so or be liable for any failure to deliver any such push notifications.  Notwithstanding anything herein to the contrary, Licensee shall be solely responsible for the telecommunications systems on or through which Licensee operates the POS System (and neither Licensor nor any its authorized resellers or agents shall have absolutely no liability with respect thereto, including any security breach Licensee experiences therethrough or any failure of the POS System to operate properly (or failure to operate) as a result of the performance (or non-performance) of such telecommunications systems).

7.	LOGIN CREDENTIALS.  Licensee is solely responsible for safeguarding all login credential (including usernames and password) used by it (including its employees, contractors and other persons authorized by it) to access the POS System and for restricting access to the POS System from unauthorized users.  Licensee is solely responsible for any use of the POS System, including any transactions processed through it, which was accessed through its login credentials, including those of its employees and contractors, or which was accessed through Licensee’s equipment, and neither Licensor nor any of its authorized resellers or agents shall have absolutely any liability with respect thereto.  Licensee will immediately notify Licensor of any unauthorized use of Licensee’s login credentials, any unauthorized access of the POS System through Licensee Equipment or any other breach of security.

8.	CONFIDENTIALITY.  Licensee understands that the POS System contains confidential, proprietary or trade secret information of Licensor and/or its suppliers (collectively, "Confidential Information"), and shall be maintained by Licensee in the strictest confidentiality.  Licensee agrees that it shall:
		(A) 	not use the Confidential Information disclosed by Licensor for any purposes other than the specified Purpose;
		(B) 	use all precautions to protect the Confidential Information against unauthorized use, dissemination, publication or disclosure;
		(C) 	limit the use, circulation of and access to Confidential Information to Licensee's directors, officers and employees who have a need to know the Confidential Information in connection with the Purpose, are under binding obligations of confidentiality to maintain the confidentiality of the Confidential Information on terms at least as restrictive as those set forth in this EULA, and have been notified that such information is Confidential Information to be used solely for the Purpose, and Licensee shall be held liable if such persons do not adhere to such requirements;
		(D) 	not copy any Confidential Information except as authorized under this EULA;
		(E) 	reproduce Licensor's proprietary rights notices on any such authorized copies, in the same manner in which such notices were set forth in or on the original;
		(F)	not reverse engineer, disassemble or decompile any prototype, software or other tangible object that embody Confidential Information; and
		(G)	notify Licensor in writing immediately upon the occurrence of any unauthorized release, disclosure or other breach of Confidential Information or upon the presence of a threat of such occurrence.

9.	USE OF INFORMATION.  Licensee agrees that Licensor and its affiliates may collect and use technical information and data gathered as part of the product support services provided to Licensee, if any, related to the POS System. Licensor or its affiliates or suppliers may use this information solely to improve their products in general or to provide customized services or technologies to Licensee and will not disclose this information in any form that personally identifies Licensee.

10. TERM AND TERMINATION.  This EULA is effective until it is terminated.  Licensor may terminate this EULA at any time for any reason whatsoever, including but not limited to a determination by Licensor that Licensee has violated any of the terms of this EULA.  Upon notification of termination, Licensee agrees to immediately discontinue all use of the POS SYSTEM, or any portion thereof, and to delete/remove all copies of the POS System (or any component parts ) from its systems and to certify to Licensor that such deletion/removal has occurred within 10 days of the notice of termination.  Termination of this EULA will not terminate any other agreements between Licensee and Licensor or any of its affiliates, including those agreements pursuant to which Licensee procured any other products or services from Licensor or any of its affiliates.  This EULA will also automatically terminate without notice upon a violation of Section 4 or upon a transfer of any of Licensee’s rights under this EULA contrary to the terms and conditions set forth herein, and any such transfer shall be void as if such transfer never occurred.  All provisions relating to ownership, copyright, warranties, confidentiality, indemnification and limitation of liability shall survive the termination of this EULA.

11. PAYMENT.
If Licensee is procuring the POS System directly from Licensor:
Unless otherwise agreed to in writing by Licensor (including via an order form or similar document), payments shall be made to Licensor by Automated Clearing House in U.S. dollars. Payment is due upon initial order and as set forth in the applicable order form (if not specified in the order form, (a) monthly fees are payable in advance on the first day of the month to which the fee relates, and (b) monthly transactional fees, if any, are payable on the first day of the month following the month in which they were incurred).  On the applicable billing cycle date, payment shall be automatically ACH debited from the account Licensee has on file with Licensor, or if approved for payment by credit card, charged to the credit card Licensee has on file with Licensor.  Payment by check must be approved by Licensor in writing on an order form specifying the dates on which payments are due and payable. If a payment is declined or fails, Licensee’s rights under this EULA will be immediately suspended until the issue is resolved.  Licensee is responsible for providing proper and correct billing, payment and contact information. ACH rejects or chargebacks for payments hereunder will result in a $25 fee and immediate suspension of Licensee’s rights under this EULA.
If Licensee procured the POS System through an authorized reseller:
Unless otherwise instructed by the reseller, all payments for the POS Systems should be paid directly to the reseller and in accordance with the reseller’s instructions for the payment thereof.

12.	EXPORT RESTRICTIONS.	 Licensee acknowledges that the POS System licensed for use hereunder is subject to the export control laws and regulations of the U.S.A., and any amendments thereof.  Licensee confirms that with respect to the POS System, Licensee will not export or re-export them, directly or indirectly, either to (A) any countries that are subject to U.S.A export restrictions (currently including, but not necessarily limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and Montenegro), Iran, Iraq, Libya, North Korea, South Africa (military and police entities), Syria, and Vietnam); (B) any end user who Licensee knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons; or (C) any end user who has been prohibited from participating in the U.S.A. export transactions by any federal agency of the U.S.A. government.  Licensee further acknowledges that the POS System may include technical data subject to export and re-export restrictions imposed by the laws of the U.S.A.

13.	NO WARRANTIES.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ALL OF LICENSOR’S OR ITS AFFILIATES’ VENDERS, PROVIDERS, RESELLERS AND AGENTS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED AND STATUTORY, WITH RESPECT TO THE POS SYSTEM, ANY EQUIPMENT (INCLUDING WITHOUT LIMITATATION POS EQUIPMENT AND OTHER ELECTRONIC AND/OR PERIPHERAL DEVICES), PRODUCTS OR SERVICES (INCLUDING WITHOUT LIMITATION GATEWAYS) PROVIDED BY OR THROUGH LICENSOR, ITS AFFILIATES OR ANY OF LICENSOR’S OR  ITS AFFILIATES’  VENDORS, PROVIDERS, RESELLERS OR AGENTS IN CONNECTION WITH THE POS SYSTEM (COLLECTIVELY, “RELATED PRODUCTS AND SERVICES”) AND ANY OTHER INFORMATION, CONTENT, SERVICES OR MATERIALS LOCATED ON, OR COMMUNICATED, ACCESSED, TRANSMITTED, PROVIDED OR LINKED THROUGH THE POS SYSTEM (“OTHER MATERIALS”), INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  THE POS SYSTEM, RELATED PRODUCTS AND SERVICES AND THE OTHER MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS. ANY USE OF THE POS SYSTEM AND OTHER MATERIALS BY YOU IS AT YOUR OWN RISK.  NEITHER LICENSOR NOR ANY OF ITS AFFILIATES, RESELLERS OF AGENTS WARRANTS THAT THE POS SYSTEM, RELATED PRODUCTS AND SERVICES OR OTHER MATERIALS SHALL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE POS SYSTEM, RELATED PRODUCTS AND SERVICES OR OTHER MATERIALS WILL BE UNINTERRUPTED, RELIABLE, ACCURATE OR ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED OR THAT THE POS SYSTEM, RELATED PRODUCTS AND SERVICES OR OTHER MATERIALS WILL BE COMPATIBLE WITH ANY PARTICULAR TECHNOLOGY PLATFORM.  NEITHER LICENSOR NOR ANY OF ITS AFFILIATES, RESELLERS OR AGENTS WARRANTS THAT THE POS SYSTEM, RELATED PRODUCTS AND SERVICES OR OTHER MATERIALS WILL BE FREE OF ANY THIRD-PARTY MALWARE, VIRUSES, BUGS OR THE LIKE OR THAT ANY OPERATION OF THE POS SYSTEM, RELATED PRODUCTS AND SERVICES OR THE OTHER MATERIALS WILL BE FREE OF ANY NEGLIGENT DESIGN OR OPERATION. TO THE EXTENT THIS SECTION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ANY EXPRESS AND/OR IMPLIED WARRANTIES SHALL ONLY BE FROM LICENSOR AND SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS FROM THE EFFECTIVE DATE, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.  THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE POS SYSTEM, RELATED PRODUCTS AND SERVICES AND OTHER MATERIALS REMAINS WITH LICENSEE. NO ACTIVITY, SERVICE, ADVERTISING, PACKAGING, STATEMENT OR COMMUNICATION BY LICENSOR, ANY OF ITS AFFILIATES OR ANY OF LICENSOR’S OR ITS AFFILAITES’ VENDORS, PROVIDERS, RESELLERS OR AGENTS IN RELATION TO THE POS SYSTEM, RELATED PRODUCTS AND SERVICES OR THE OTHER MATERIALS, EVEN IF PRESENTED IN A FORM OF PRODUCT WARRANTY, WHETHER PRIOR TO, ON OR POST THE DATE OF THIS EULA, SHALL BE INTERPRETED AS AN ANNULMENT, IMPAIRMENT OR MODIFICATION TO THIS DISCLAIMER.

14.	LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR,  OR ANY ITS AFFILIATES, RESELLERS, AGENTS, VENDORS OR SUPPLIERS, BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE POS SYSTEM, ANY OF THE RELATED PRODUCTS  AND SERVICES OR ANY OF THE OTHER MATERIALS.  IN ALL CASES, NEITHER LICENSOR NOR ANY OF ITS AFFILIATES, RESELLERS, AGENTS, VENDORS OR SUPPLIERS WILL BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL LICENSOR, ANY OF ITS AFFILIATES OR ANY OF LICENECOR’S OR ANY OF ITS AFFILIATES’ VENDORS, PROVIDERS, RESELLERS, SUPPLIERS OR AGENTS BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE POS SYSTEM, ANY OF THE RELATED PRODUCTS AND SERVICES, THE OTHER MATERIALS, OR THE INFORMATION CONTAINED IN ANY OF THE FOREGOING.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF LICENSOR,  ITS AFFILIATES AND LICENSOR’S AND ITS AFFILIATES’ , RESELLERS, AGENTS, SUPPLIERS, PROVIDERS AND VENDORS WITH RESPECT TO THE POS SYSTEM, ANY OF THE RELATED PROUCTS AND SERVICES AND ANY OF THE OTHER MATERIALS IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES PAID BY LICENSEE FOR ITS USE OF THE POS SYSTEM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF LICENSOR OR ANY OF ITS AFFILAITES, RESELLERS, AGENTS, SUPPLIERS OR VENDORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

15. THIRD PARTY SERVICES PRODUCTS AND SERVICES.  Licensee may be offered services, products promotions provided by third parties (including without limitation hardware and software and Related Products and Services) and not by Licensor (“Third Party Products”) for use in connection with or through the POS System, including without limitation products and services provided by third parties that integrate with the POS System. If Licensee decides to use Third Party Products it will be solely responsible for reviewing and understanding the terms and conditions for these Third Party Products.  Licensor is not responsible for the performance of any Third Party Products. All Third Party Products included or sold with the POS System are provided solely according to the warranty and other terms specified by the manufacturer or third-party provider, who is solely responsible for service and support for its products and services.  The providers of these Third Party Products may require Licensee to agree to terms and conditions relating to the use of their products and services separate and distinct from the terms and conditions set forth in this EULA.  LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND SHALL HAVE ABSOLUTELY NO LIABILITY WITH RESPECT TO THE USE OF SUCH THIRD PARTY PRODUCTS.

16.	INDEMNIFICATION.  Licensee agrees to indemnify, defend, and hold harmless Licensor and its affiliates and each of the foregoing’s vendors, providers and suppliers, affiliates, stockholders, successors, assigns, officers, directors, employees, resellers, agents and representatives, from and against any and all actions, suits, proceedings, investigations, demands, claims, judgments, liabilities, obligations, liens, losses and damages and any related fees and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or relating to Licensee’s use of the POS System, the Related Products and Services, Third Party Products or Other Materials, including without limitation any inaccuracies or errant results of the POS System, or Licensee’s violation of the terms and conditions of this EULA.

17.	PCI COMPLIANCE.  Licensor (a) represents that the POS System complies with the data security standards and programs established by the Payment Card Industry Data Security Standards Council and (b) acknowledges that Licensor is responsible for the security of cardholder data that is transmitted by Licensor as part of the POS System (“Transmitted Data”) or stored, possessed or processed by Licensor as part of the POS System on behalf of Licensee; provided, however, that once Licensor has transmitted the Transmitted Data to the third party gateway provider, such gateway provider shall be responsible for any further transmission of the Transmitted Data and Licensor shall not be responsible or liable for any such further transmission; provided, further, that Licensor shall not be responsible for any security breaches that occur in whole or in part as a result of any error or omission on the part of Licensee, including without limitation any negligence or intentional misconduct on the part of Licensee or any of its contractors, venders, suppliers or agents (other than Licensor), or any breach by Licensee of this EULA.

18.	GOVERNING LAW; JURISDICTION. This EULA is governed by the laws of the State of New York without regard to its conflict of laws principles.  The exclusive forum for any disputes arising out of or relating to this EULA shall be any federal or state court sitting in the City, County and State of New York.

19. AMENDMENT.  Licensor may amend this EULA at any time with notice to Licensee that Licensor deems, in its sole discretion, to be reasonable under the circumstances, including without limitation by posting the revised version on its website or communicating it to Licensee through the Services, including without limitation in form of a “click-through” agreement (each a “Revised Version”). The Revised Version will be effective as of the time it is posted but will not apply retroactively.  Licensee agrees and acknowledges that Licensor may restrict or prohibit Licensee’s access to the POS System should Licensee fail to accept the Revised Version in the manner Licensor requires Licensee to accept the Revised Version.  Notwithstanding the foregoing, Licensee’s continued use of the POS System after the posting of a Revised Version constitutes Licensee’s acceptance of such Revised Version.

20.	REMEDY.  Licensee understands and acknowledges that any violation of this EULA by Licensee or any use of the POS System except as authorized by EULA will result in irreparable harm to Licensor and/or its suppliers and that monetary damages may be inadequate to compensate Licensor and/or its suppliers for such breach.  Accordingly, Licensee agrees that Licensor will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive reliefs to enforce the terms of this EULA.

21.	MISCELLANEOUS.  This EULA, including the Important Notices at the beginning of the EULA, shall constitute the entire agreement between Licensee and Licensor.  This EULA, the rights granted hereunder and Licensee’s access to the POS SYSTEM shall not be assigned by Licensee without the prior written consent of Licensor.  Licensor’s affiliates and Licensor’s and its affilaites’ resellers, agents, vendors, providers and suppliers are intended third-party beneficiaries of this Agreement.  Any waiver or modification of this EULA shall only be effective if it is in writing and signed by both Licensee and Licensor.  The captions and headings used in this EULA are used for convenience only and are not to be given any legal effect.  If any provision of this EULA is found invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified with retroactive effect to render such provision valid and enforceable to the maximum extent permissible so as to effect the intent of the parties hereto, and the remainder of this EULA shall continue in full force and effect.  No purchase order issued by Licensee shall affect any of the terms or conditions set forth in this EULA.
                
             I AGREE TO THE TERMS SPECIFIED IN THIS END USER LICENSE AGREEMENT