End User License Agreement

 

1. Introduction

 

This End User License Agreement (the "Agreement") is a legal agreement between you (“you,” “your”) and iPos Intuitive Point of Sale, LLC. (“iPos,” “we,” “our” or “us”) governing your access and use of all software, Application, Websites and Hardware and any other services made available by iPos Intuitive Point of Sale, LLC. ("iPos"), collectively the iPos Service ("Service"). The Service consists of the proprietary operating system, firmware, Applications, Service plans, Data Protection, and other Application Programming Interfaces ("iPos software") and any software, documentation, tools, components, and any updates thereto (including software maintenance, Service information, help content, bug fixes, or maintenance releases) provided by iPos in connection with the Service. Any of your obligations set out in this Agreement relating to the use of the Service are in addition and not in substitution of any other obligations imposed on you by any "Authorized Sublicensor" (as specifically identified therein) under any separate agreement covering purchase or lease of any Device or Service. By using the Services, and related materials made available to you, you agree to be bound by this Agreement and any documentation and guidelines accompanying the Services, the terms of Service, Privacy Notice, and all other terms, policies, and guidelines applicable to your use, including but not limited to, the Payment Terms.

 

2. Agreement

 

The activation by you, the business accepting payments through a Device running the iPos software (as defined below), ("you" or "your"), of your Device or the clicking to accept the terms and conditions of this Agreement where this option is made available, represents your consent to the terms and conditions of this Agreement. This Agreement forms a legally binding contract between you and iPos in relation to your use of the Service. You are further affirming that you are of the legal age of majority in the jurisdiction in which you reside and have the right and authority to agree to these Terms. You represent and warrant that you have the right and authority to bind your business to this Agreement and you are not barred or otherwise legally prohibited from accessing or using the Service.

 

 

3. Your Use of the Service

 

(a) iPos grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense or assign in any way, to access and use the Service for your internal business. This is solely for use in the United States for your business and/or conduct associated point of sale activities in accordance with this Agreement.

(b) iPos is a point of sale system to and is not a part of your business. 

(c) iPos is not responsible and does not have any liability for any products or services your business provides

(d) there is no guarantee of any revenue or level of sales based on your use of iPos

(e) iPos does not commit to market or promote your business in any manner

(f) the form, design and nature of iPos may change from time to time without prior notice

(g) iPos may at its sole discretion, and without prior notice to you, stop providing features and/or restrict use of certain features without prior notice

(h) iPos may perform maintenance from time to time that may result in service interruptions, delays, or errors. iPos will not be liable for any such interruptions, delays or errors. You agree that iPos may contact you in order to assist you with the and interruption of service and to obtain information needed to identify and fix any errors.

(i) You represent and warrant and must ensure that:

1. You and your business comply with all applicable laws; the Card Association Rules; Date Security Requirements and Standards; your agreements with other merchants, as they affect this Agreement, including without limitation any terms of service or use any data protection agreements; all applicable third-party contract or terms of service or use ; and your own privacy policy and all public-facing representations regarding privacy and data security that you have made; and 

2. You are solely responsible for your and your employees’ acts and/or omissions in connection with the use of iPos Services; and any breach or failure to comply with to comply with your obligations under this Agreement.

 

 

4. Restrictions

 

You shall not nor shall you permit any third party to:

(a) export the Service which may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII);

(b) access or monitor any material or information or any iPos system using any manual process or robot, spider, scraper, or other automated means;

(c) except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services;

(d) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;

(e) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from iPos without the prior written authorization of iPos;

(f) use and benefit from the Services via a rental, lease, timesharing, Service bureau or other arrangement;

(g) transfer any rights granted to you under this Agreement;

(h) use the Services in a way that distracts or prevents you from obeying any other laws of the United States;

(i) use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm;

(j) use the Services for any illegal activity or goods or in any way that exposes you, other iPos users, our partners, or iPos to harm; or

 

(k) otherwise use the Services except as expressly allowed under this Agreement

 

(b) access or use (in any format) the Service (or any part) through any time-sharing Service, Service bureau, network, consortium, or other means;

(c) without IPOS's advance written consent, use, ship or access the Service (or any part) outside or from outside of the United States;

 

5. Service Requirements and Limitations

 

5.1 You may access the Service through your tablet or other mobile or fixed form factor identified by iPos as compatible with and capable of accessing and/or supporting the Service ("Device") using a wired (Ethernet) or wireless (Wi-Fi or cellular) connection to the Internet. You are solely responsible for the payment of any fees that may be imposed by your Internet/data provider. Your use of the Service accessed wirelessly or through the Internet is subject to: (a) the terms of any agreements you have with your Internet/data provider; and (b) availability, transmission range and uptime of the Services and any wireless equipment.

5.2 You may use the Service to conduct point of sale activities offline. Transactions initiated offline will be queued and submitted for authorization when Internet connectivity to the iPos platform is restored. You assume all risk, responsibility and liability associated with any transaction that you choose to conduct while the Service is offline.

5.3 The Service may not function with every mobile and/or tablet device. iPos may alter which Devices are approved as compatible with the Service in iPos' discretion. 

5.4 You shall at all times comply with any operating procedures, requirements, or guidelines regarding your use of the Service that are provided or made available to you.

5.5 You agree that iPos shall not have any liability to you arising directly or indirectly from or otherwise concerning: (a) any termination, suspension, delay or disruption of the Service (including billing for the Service) by the Internet, any common carrier or any third party Service provider; (b) any failure, disruption or malfunction of the Service, the Internet, or any communications network, facility or equipment beyond iPos or a third party's reasonable control; (c) your failed attempts to access the Service or to complete transactions via the Service; or (d) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you.

 

 

 

6. Communicating with Customers through the Service

 

6.1 You must comply with applicable law, including by obtaining any legally required consent, when collecting and using customer contact details to communicate with your customers through the Service. You must promptly honor any customer opt-out.

6.2 You may not use the Service to send marketing communications except to the contact information provided directly to you by the consumer and with the proper consumer choice as required by law.

 

7. Third-Party Services

 

You may be offered services, products and promotions provided by third parties and not by iPos, including, but not limited to, Third-Party developers who use iPos’ services (“Third-Party Services”). If you decide to use Third-Party Services, you will be responsible for reviewing and understanding the terms and conditions for these services. We are not responsible or liable for the performance of any Third-Party Services. You are solely responsible for obtaining and maintaining any required Third-Party hardware and/or software that is required for the Third-Party Services to work with the Service. Further, you agree to resolve any disagreement between you and a Third-Party regarding the terms and conditions of any Third-Party Services with that Third-Party directly in accordance with the terms and conditions of that relationship, and not iPos. The inclusion of any link between the iPos software and the Third-Party Service does not imply an approval, endorsement, or recommendation by iPos. Such Third-Party websites are not governed by this Agreement. You access any such website at your own risk. We expressly disclaim any liability for these websites. When you use a link to go from the Services to a Third-Party website, our Privacy Notice is no longer in effect. Your browsing and interaction on a Third-Party website, including those that have a link in the Services is subject to that website’s own terms, rules and policies. ANY ACCESS OF OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THIRD-PARTY SERVICES IS ACCESSED OR DOWNLOADED AT YOUR OWN RISK. iPos WILL NOT BE RESPONSIBLE FOR ANY ACTIONS OR ANY FAILURES TO ACT OF ANY THIRD-PARTY, AND EXPRESSLY DISCLAIMS ALL LIABILITY RELATED TO ANY THIRD-PARTY SERVICES. iPos DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PROVIDER OF A THIRD-PARTY SERVICE OR THIRD-PARTY SERVICE ADVERTISED OR OFFERED THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. iPos WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND PROVIDERS OF THIRD-PARTY SERVICES.

 

8. iPos Account Registration

 

You must open an account with us (a “iPos Account”) to use the Services. During registration you will be asked for information, which may include but is not limited to, your name and other personal information. You must provide accurate and complete information in response to our questions, and you must keep that information current. You are fully responsible for all activity that occurs under your iPos Account, including for any actions taken by persons to whom you have granted access to the iPos Account. We reserve the right to change the account type, suspend or terminate the iPos Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.

 

9. Maintenance on the Service

 

9.1 iPos may perform maintenance on the Service which may result in Service interruptions, delays, or errors. iPos will not be liable for any such interruptions, delays, errors, or bugs. iPos may contact you in order to assist you with the Service and obtain information needed to identify and fix any errors.

9.2 iPos may, at its discretion, release enhancements, improvements or other updates to any software. If iPos notifies you that such update requires an installation, you shall integrate and install such update into your systems within 48 hours of your receipt of such notice. Failure to install any updates in a timely fashion may impair the functionality of the software or Service. iPos shall have no liability for your failure to properly install the most current version of any software or any update, and iPos shall have no obligation to provide support or Services for any outdated versions.

9.3 Certain software can automatically install, download, and/or deploy updated and/or new components, which may include a new version of the software itself. You shall not, in any event or in any manner, impede the update process. You agree to assume full responsibility and indemnify iPos for all damages and losses, of any nature, for all adverse results or third-party claims arising from your impeding the update process.

 

 

 

10. Fees

 

You will be charged and agree to pay the applicable fee to use the Service, as displayed in the iPos App, and all applicable taxes (other than taxes based on iPos's income), duties or other governmental assessments based on your choice of subscription for Service. If you dispute any amounts you are charged, you must notify iPos in writing within 30 days of incurring the charge that you dispute. If you notify iPos after 30 days, you agree iPos has no obligation to affect any adjustments or refunds. If you have an agreement with an Authorized Sublicensor for any iPos Service plan, iPos will collect the amounts described in the first sentence of this Section from you for such plan on behalf of, and remit the amounts to, the Authorized Sublicensor.

The following are excluded from this Agreement as set forth in this section of the Agreement: 1) A total re-reconfiguration of the entire Menu is not included; 2) Addition of a catering Menu at a later time is a separate fee, unless agreed upon at the time of purchase; 3) Paying for any current service providers cancellation fees is excluded unless agreed upon in writing at the time of purchase.

iPOS shall, at its sole discretion, for the additional charge, provide services and shall repair, redesign, reinstall, reconfigure or replace the iPos Services when either is required due to causes not attributable to normal wear and tear, including, but not limited to a) your failure to continually maintain your Devices in conformance with commercially reasonable standards; b) impairments in the performance of the Devices where the iPos Services are installed resulting from changes in the design of the iPos Services made by You or mechanical, electrical, or electronic interconnections made by you; c) damage caused by accidents, natural disasters or the negligence of, or improper use or misuse of, the Devices where iPos Service are installed by you; d) damage or necessity of repair resulting from unauthorized maintenance by you or any third party other than iPos or its authorized representative; e) damage or repair necessitated as a result of relocation of the Devices where iPos Service are installed; f) change in laws or Association rules that require service, repair, or replacement above normal day to day maintenance; g) due of any third party hardware or software in conjunction with the use of the Devices where iPos Service are installed without iPos express written consent; or h) theft of the Devices where iPos Service are installed.

You shall be charged a Total Monthly Service Fee as set forth in the iPos Application & Account Set Up Form upon the first business day of the month immediately following the date of approval of your application by iPos. or upon installation of the service. iPos shall continue to debit you for service charges on the first of every subsequent month during the term and any renewal term of this Agreement.

You grant iPOS, its affiliates, subsidiaries, successors, and assigns, Credit and/or Debit Card Authorization and permission to make a credit inquiry in order to obtain a consumer credit report as set forth in iPos Application & Account Set Up Form.

Amounts owed from you to iPos will be made via the Payment Authorization procedures set forth in the iPos Application & Account Set Up Form. You hereby authorize iPos to use said Payment Procedures and to charge Your Designated Accounts in accordance with iPos Application & Account Set Up Form and these Terms and Conditions. Each Tuesday and Friday, or the earliest banking day thereafter if there is a bank holiday on, before, or after, iPos shall charge your Designated Accounts for the amounts then owed by you to iPos for the previous days, including, without limitation, the amount of any (1) applicable fees listed in iPos Application & Account Set Up Form and (2) payments for processed Transactions. In addition, commencing with the first full calendar month of the terms of the Services Agreement, within the first ten (10) days of each month, iPos shall charge your Designated Accounts in the amount of the Service Fee for such month. If any payment made via the Payment Procedures is rejected, returned or is not completed due to insufficient funds or any other reason in the Designated Accounts or due to any action or inaction of you (“Returned ACH”), iPos shall have the right, in its sole discretion, to charge a fee (“Returned ACH Fee”) as set forth by iPos in its sole discretion. In addition, until the full amount of the Returned ACH and the Returned ACH Fee is paid and verified, iPos shall have the right to suspend all iPos services and your iPos account. 

In the iPos Application & Account Set Up Form you have designated certain credit / debit card account(s) identified in the Services Agreement to be charged for amounts due hereunder via the Payment Procedures (collectively, the “Designated Accounts”). You shall keep sufficient funds on deposit in the Designated Accounts to cover the full amount of any deductions to be made by iPos. After termination of this Agreement, you shall maintain deposits in the Designated Accounts necessary to cover any amounts owed from you to iPos that you dispute and shall keep such amounts in the Designated Accounts until such dispute(s) are resolved in accordance with the Agreement and its Terms and Conditions.

Adjustments: iPos may adjust the monthly service charges in the iPos Application & Account Set Up Form upon thirty (30) day notice via the iPos App and/or the iPos Website.

Taxes: You shall pay (or reimburse iPos), in addition to the charges for the services specified herein and as a separate item, all taxes, however designated, or amounts legally levied in lieu thereof, based on or measured by the charges set forth in this Agreement or on this Agreement, or on the services rendered hereunder, now or hereunder imposed under the authority of any federal, state or local taxing jurisdiction.

 

11. Term and Termination

 

11.1 This Agreement commences on the date on which you first use the Service and continue for the subscription term you select. The subscription term will automatically renew upon expiration of the initial term and shall be equal in duration as the initial term, unless either party gives notice of cancellation prior to the expiration of the initial or any renewal term. The fee charged during any renewal term will be equal to the fee in effect during the immediately preceding subscription term, unless iPos provides advance notice of a fee change, which fee change will be effective upon the renewal term.

11.2 iPos may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without any notice and liability for any reason, including if in iPos’ sole determination you violate any provision of this Agreement.

11.3 Upon termination of this Agreement for any reason, you must immediately stop using the Service and your license to use the Service provided under this Agreement shall end. Upon your termination of this Agreement, iPos will provide you with a reasonable period of time to allow you to extract your Account Data (defined below) that iPos has stored on its servers as of the termination date. Subject to the foregoing sentence and applicable law and card association rule requirements, iPos will delete Account Data stored on iPos' servers upon your termination of this Agreement, and iPos will not be liable to you or any third party for termination of access to the Service or deletion of your Account Data.

11.4 The rights, obligations and limitations of Sections 5.2, 5.5, 9.2, and 9.3, and Articles 2, 11, 13, 14, 15, 16, 17, 18, 19 and 23 will survive termination of this Agreement.

11.5 If this Agreement is terminated either during the Initial Term or any renewal term for any reason, you agree to pay an early termination fee equal to the total monthly service fee as set forth in the iPos Application & Account Set up Form.

 

12. Privacy and Data Use

 

12.1 All data collected via the iPos App or in connection with your use of the Service, including customer information and information about your business and employees and customers used with or stored in or by the Service, is collected by iPos. The iPos Privacy Policy (See iPos Privacy Policy, section 14 below) describes iPos’ collection, use, disclosure, and other practices of iPos in connection with such data.

12.2 You shall comply with all applicable laws pertaining to the privacy, secrecy, confidentiality, collection, usage, sharing, security, protection, disposal, and/or transfer of personal information, including laws applicable to direct marketing, telemarketing, and unsolicited e-mails or text messages. Applicable laws may include, but are not limited to US federal and state laws, such as the FTC Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, Gramm-Leach-Bliley Act, state consumer protection laws, state data security laws, security breach notification laws, laws imposing minimum security requirements, laws requiring the secure disposal of records containing certain personal information, as well as any iPos requirements related to such matters.

12.3 You must implement reasonable security measures designed to protect the personal information that you collect, use, disclose, transfer, or otherwise process in connection with your use of the Service and Device. You acknowledge and agree that you are solely responsible for all privacy and information security obligations and liabilities relating to any data that you download, export, or otherwise transfer from the Service or Device to your own information environment.

12.4 You are solely responsibly to maintain and make available to your consumers a privacy policy applicable to your use of the Service and Device, including any applications installed on the Device.

12.5 You must ensure and you are responsible for any third parties with which you share personal information in connection with your use of the Service or Device will provide the same level of privacy and data security protection that you are legally required to maintain and which you promise to maintain.

12.6 You must respond in a legally appropriate manner to any legally valid requests from individuals pertaining to the individual’s privacy or data subject rights at your sole cost and expense.

12.7 iPos may process personal information to create aggregated, anonymized, or de-identified information and use that information for its lawful business purposes, including for purposes of creating data insights and analytics and demographic profiling.

12.8 Unless you have received prior written consent to do so from iPos, you may not use the Services to (a) process personal information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership; or genetic data, biometric data, data concerning health, or data concerning a natural person’s sex life or sexual orientation; or (b) upload or incorporate, process transactions involving, or otherwise provide iPos with, any “protected health information” within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”).

12.9 You agree to provide reasonable assistance to help iPos comply with its privacy or data protection legal obligations, or defend against any claims or investigations, in either case, in any way arising from or related to this Agreement. You agree to promptly notify iPos of any opt-outs and legally valid data subject rights requests relating to data with iPos’ possession, custody, or control.

 

13. Protecting Information

 

13.1 You shall safeguard all confidential information iPos supplies or otherwise makes accessible to you using a reasonable degree of care. You shall only use iPos' confidential information for the purposes of this Agreement and shall not disclose iPos' confidential information to any person, except as iPos may agree in advance and in writing. At iPos' request, you shall return to iPos or destroy all of iPos' confidential information in your possession or control.

13.2 You are solely responsible for ensuring that your account numbers, passwords, security questions and answers, login details and any other security or access information used by you to use or access the Service is kept safe and confidential. You must prevent unauthorized access to and use of any of your information or data used with or stored in or by the Service (collectively, “Account Data “). You are responsible for electronic communications sent to iPos or to any third-party containing Account Data and for all uses of the Service in association with your Account Data, whether or not authorized by you. iPos has the right to rely on user names, password and other signor credentials, access controls for the Service or any software provided or approved by iPos to authenticate access to, and use of, the Service and any software. You must immediately notify iPos if you become aware of any loss, theft or unauthorized use of any Account Data (see iPos Service support center contact information below). iPos reserves the right to deny you access to the Service, in whole or in part, if iPos believes that any loss, theft or unauthorized use of any Account Data or access information has occurred.

13.3 You may submit comments or ideas about the Service, including about how to improve the Service. By submitting any idea, you agree that (a) iPos expressly disclaims any confidentiality obligations or use restrictions, express or implied, with respect to any idea; (b) your submission will be non-confidential; and (c) iPos is free to use and disclose the idea on an unrestricted basis without notifying or compensating you. You release iPos from all liability and obligations that may arise from iPos' receipt, review, use or disclosure of any portion of any idea.

 

14. iPos Privacy Policy

 

14.1 Information iPos collections from you - we need to collect information about you to provide you with the Services or the support you request. The type of information we collect can vary depending on the service you provide. Additionally, you can choose to voluntarily provide information to us.

14.2 Information you provide - we collect information you provide when you apply or sign up for an iPos account and go through our identity or account verification process, communicate with us, answer our surveys, upload content, or otherwise use the Services.

We collect information about you when you use our Services, including but not limited to:

14.3 Information we collection from your use of the iPos Services - we collect information about you and the Devices you use to access the Services, such as your computer, mobile phone, or tablet. The information that we collect includes but is not limited to:

14.4 Information we collect from other sources - we also collect information about you from third parties, including:

14.5 Information regarding minors. Our Services are general audience services not directed at children under the age of 13. If we obtain actual knowledge that any information, we collect has been provided by a child under the age of 13, we will promptly delete that information.

14.6 We may use information about you for a number of purposes including: 

14.7 Communicating with you about our Service and the information we collect – from time to time we will be sending you information we think you may find useful or which you have requested from us about our services or information specific to your industry, or geographic location.

14.8 Marketing. We may use your personal data and the data of your customers to form a view on what products or services we think you may want or need, or what may be of interest to you.

We may present opportunities when you use an iPos Service to provide your personal data to facilitate marketing communications between you and merchant best suited to fill your needs, and we will send such marketing communication if you agree to receive them.

We may contact merchants and merchant’s personnel with marketing communications using the personal data that the merchant provided to us if the merchant actively expresses interest in participating in iPos services.

Where required by law, we will get your express opt-in consent before we share your personal data with any company outside the First Data group for marketing purposes.

You can ask us to stop sending you marketing messages at any time by contacting us using the details in the Contact us.

Should you choose to opt out of receiving our marketing messages, we will continue to carry out our other relevant activities using your personal data, including sending non-marketing messages. 

14.9 We will make every attempt to protect iPos Services and maintain a trusted environment by: 

14.10 We may share information that we have collected from your account as follows:

Other iPos Users

With iPos Affiliates

With Third Parties

14.11 Business transfers and corporate changes – We may share information that we collection from your account:

14.12 Safety and compliance with law  - If we believe that disclosure of some or all of the information we collect from your account is reasonably necessary (i) to comply with any applicable law, regulation, legal process or governmental request (e.g., from tax authorities, law enforcement agencies, etc.); (ii) to enforce or comply with our terms and conditions or other applicable agreements or policies; (iii) to protect our or your customers’ rights or property, or the security or integrity of iPos Services; or (iv) to protect us, users of iPos Services or the public from harm, fraud, or potentially prohibited or illegal activities, then we will do so. 

14.13 iPos may also share with third parties aggregated and anonymized information that does not specifically identify you or any individual users of our service. 

14.14 iPos generally retains your information as long as reasonably necessary to provide you the Services or to comply with applicable law. However, even after you deactivate your account, iPos can retain copies of information about you and any transactions or Services in which you may have participated for a period of time that is consistent with applicable law, applicable statute of limitations or as iPos believes is reasonably necessary to comply with applicable law, regulation, legal process, or governmental request, to detect or prevent fraud, to collect fees owed, to resolve disputes, to address problems with iPos Services, to assist with investigations, to enforce iPos terms and conditions or other applicable agreements or policies, or to take any other actions consistent with applicable law.

14.15 iPos may use various technologies to collect information when you access or use iPos Services, including placing a piece of code, commonly referred to as a “cookie,” or similar technology on your device and using web beacons. Cookies are small data files that are stored on your hard drive or in your device memory when you visit a website or view a message. Among other things, cookies support the integrity of our registration process, retain your preferences and account settings, and help evaluate and compile aggregated statistics about user activity. iPos will begin collecting information about you or from activity on devices you or your customers use as soon as you use iPos Services. By using iPos Services, you permit iPos to collect and use your information from activity on devices you use in accordance with this Privacy Notice. For more information and to learn how to block or delete cookies used in the Services, please see below.

Certain cookies we use last only for the duration of your web or application session and expire when you close your browser or exit the application. Other cookies are used to remember you when you return to use the Services and, as such, will last longer.

iPos may use cookies to:

Some of the cookies used in the Services are set by us, and others are set by third parties who deliver services on our behalf.

Most web and mobile device browsers are set to automatically accept cookies by default. However, you can change your browser settings to prevent automatic acceptance of cookies, or to notify you each time a cookie is set.

You also can learn more about cookies by visiting http://www.allaboutcookies.org, which includes additional useful information on cookies and how to block cookies on different types of browsers and mobile devices. Please note, however, that by blocking or deleting cookies used in the Services, you may not be able to take full advantage of the Services.

We also may collect information using web beacons. Web beacons are electronic images that may be used in our Services or emails. We use web beacons to deliver cookies, track the number of visits to our apps, understand usage and campaign effectiveness, and determine whether an email has been opened and acted upon.

14.16 iPos may use third-party service providers to provide site metrics and other analytics services. These third parties may use cookies, web beacons, and other technologies to collect information, such as your IP address, identifiers associated with your device, other applications on your device, the browsers you use to access our Services, webpages viewed, time spent on webpages, links clicked, and conversion information (e.g., transactions entered into). This information may be used by iPos and third-party service providers on behalf of iPos to analyze and track usage of our Services, determine the popularity of certain content, and better understand how you use iPos Services. The third-party service providers that we engage are bound by confidentiality obligations and other restrictions with respect to their use and collection of your information.

This Privacy Notice does not apply to, and we are not responsible for, third-party cookies, web beacons, or other tracking technologies, which are covered by such third parties’ privacy policies. For more information, we encourage you to check the privacy policies of these third parties to learn about their privacy practices. For more information about targeted advertising specifically, please visit http://www.aboutads.info/choices.

 

14.17 You may access, change, or correct your personal information that you have provided by logging into your iPos account at any time, in which case we may need to verify your identity before granting access or otherwise changing or correcting your information.

14.18 If you wish to deactivate your iPos account, you can do so by logging into your iPos account or by emailing us using the contact details provided below.

14.19 In order to provide certain Services, we may require access to location information, including precise geolocation information collected from your device. If you do not consent to collection of this information, certain Services will not function properly, and you will not be able to use those iPos Services. You can stop our collection of location information at any time by changing the preferences on your mobile device. If you do so, some of our mobile applications will no longer function. You also may stop our collection of location information via mobile application by following the standard uninstall process to remove all iPos mobile applications from your device.

14.20 We take reasonable measures, including administrative, technical, and physical safeguards, to protect your information from loss, theft, misuse, and unauthorized access, disclosure, alteration, and destruction. Nevertheless, the internet is not a 100% secure environment, and we cannot guarantee absolute security of the transmission or storage of your information. We hold information about you both at our own premises and with the assistance of third-party service providers. For more information about our security practices, please visit https://iPosup.com/security.

STORAGE AND PROCESSING

14.21 iPos may, and iPos may use third-party service providers to, process and store your information in the United States, Canada, Japan, the European Union, India and other countries.

14.22 iPos may amend this Privacy Notice from time to time by posting a revised version and updating the “Effective Date” above. The revised version will be effective on the “Effective Date” listed. We will provide you with reasonable prior notice of material changes in how we use your information, via the iPos app. If you disagree with these changes, you may cancel your account at any time. Your continued use of the iPos Services constitutes your consent to any amendment of this Privacy Notice.

If you have any questions or concerns regarding our notice, or if you believe our notice or applicable laws relating to the protection of your personal information have not been respected, please contact us immediately at our contact information below, and we will respond to let you know who will be handling your matter and when you can expect a further response. We may request additional details from you regarding your concerns and may need to engage or consult with other parties including our legal counsel in order to investigate and address your issue. We may keep records of your request and any resolution.

 

15. Service Requirements and Limitations

 

The iPos Software shall mean the object code version of iPos software applications (whether owned or licensed by iPos) resident on a Device at the time you are provided with the Device and the object code version of the software that enables the applications resident on a Device at the time of provisioning, and any related updates (including software maintenance or bug fixes) and any materials, documentation and derivative works released by iPos from time to time. For the avoidance of doubt, the term software in the preceding sentence does not include any software that may be obtained by you independent of iPos. The iPos Software is deemed part of the iPos Service as defined in this Agreement.

You may access the Service through your tablet, or other mobile or fixed form factor identified by iPos as compatible with and capable of accessing and/or supporting the Service ("Device") using a wired (Ethernet) or wireless (Wi-Fi or cellular) connection to the Internet. You are solely responsible for the payment of any fees that may be imposed by your Internet/data provider. Your use of the Service accessed wirelessly or through the Internet is subject to: (a) the terms of any agreements you have with your Internet/data provider; and (b) availability, transmission range and uptime of the services and any wireless equipment.

You may use the Service to conduct point of sale activities offline. Transactions initiated offline will be queued and submitted for authorization when Internet connectivity to the iPos POS. You assume all risk, responsibility and liability associated with any transaction that you choose to conduct while the Service is offline. The Service does not function with every mobile device. iPos may alter which devices are approved as compatible with the Service in iPos’s sole discretion.

You shall at all times comply with any operating procedures, requirements, or guidelines regarding your use of the Service that are posted within the iPos App and/or on the iPos Website or otherwise provided or made available to you. You agree that iPos shall not have any liability to you arising directly or indirectly from or otherwise concerning: (a) any termination, suspension, delay or disruption of the Service (including billing for the Service) by the Internet, any common carrier or any third party service provider; (b) any failure, disruption or malfunction of the Service, the Internet, or any communications network, facility or equipment beyond iPos or a third party's reasonable control; (c) your failed attempts to access the Service or to complete transactions via the Service; or (d) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you.

 

16. License

 

16.1 All Intellectual Property Rights in the iPos software, iPos Data Protection and all iPos Services will remain vested in iPos Intuitive Point of Sale, LLC. During the term of this Agreement, iPos grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense or assign in any way, to electronically access and use the iPos Services for your internal business use solely in the United States of America,  Canada and South America to manage your establishment and conduct associated point of sale activities within the United States of America, Canada and South America in accordance with these iPos Terms and Conditions.

16.2 iPos hereby grants to you a non-exclusive, non-transferable, non-sublicensable and revocable license:

  1. to use the iPos services solely on computers owned or controlled by you; and

  2. to use the iPos services solely for the approved business purposes; 

16.3 Without limiting the generality of Section 12.2, you must not:

  1. use, modify, adapt, reformat or reproduce the iPos Services or iPos software or any portion thereof, except as expressly permitted under these Terms;

  2. distribute, sublicense, assign, transfer or otherwise make available the iPos Services or iPos software to any third party without the prior written consent of iPos;

  3. use or access the iPos Services or iPos software to monitor the availability, performance or functionality of the iPos software or for any other benchmarking or competitive purposes;

  4. interfere with, bypass, or disable any features or functionality that is embedded in or included with the iPos Software or iPos Data Protection; or

  5. use the iPos Services or iPos software in any unlawful manner, for any unlawful purpose or in any manner inconsistent with these Terms.

16.4 iPos reserves the right to suspend or discontinue your access to the iPos Services at any time, at iPos’ sole discretion, with or without prior notice.

16.5 iPos may, in its sole discretion, release subsequent releases or versions of the iPos Services or iPos software and require you to obtain and use such current releases or versions, which may result in you needing to make updates to your software, your Apps or supporting services.

16.6 You are responsible to comply with the following regarding your use of the iPos Data Protection Service. You will promptly notify us of a breach of any terms of this Agreement. If you send or receive batch files containing completed Card transaction information to/from Processor, you must use the service provided by Processor. You have no right, title or interest in or to the iPos Data Protection, any related software, materials or documentation, or any derivative works thereof, and nothing in this Agreement assigns or transfers any such right, title or interest to you. You shall not take any action inconsistent with the stated title and ownership in this Agreement. You will not file any action, in any forum that challenges the ownership of the iPos Data Protection, any related software, materials or documentation. Failure to comply with this provision will constitute a material breach of this Agreement. We have the right to immediately terminate this Agreement and your access to and use of the iPos Data Protection in the event of a challenge by you. No additional rights are granted by implication, estoppel or otherwise.

You will not: 

If any portion of the iPos Data Protection contains any copyright notice or any other legend denoting the proprietary interest of Processor or any third party, you will not remove, alter, modify, relocate or erase such notice or legend on such item. You are required to comply with the Card Organization Rules, including taking all steps required to comply with the Payment Card Industry Data Security Standards (PCI DSS). You must ensure that all third parties and software use by you in connection with your payment processing are compliant with PCI DSS. Use of the iPos Data Protection will not, on its own, cause you to be compliant or eliminate your obligations to comply with PCI DSS or any other Card Organization Rule. You must demonstrate and maintain your current PCI DSS compliance certification. Compliance must be validated either by a Qualified Security Assessor (QSA) with corresponding Report on Compliance (ROC) or by successful completion of the applicable PCI DSS Self- Assessment Questionnaire (SAQ) or Report on Compliance (ROC), as applicable, and if applicable to your business, passing quarterly network scans performed by an Approved Scan Vendor, all in accordance with Card Organization Rules and PCI DSS. You are required to comply with the Card Organization Rules, including taking all steps required to comply with the Payment Card Industry Data Security Standards (PCI DSS). You must ensure that all third parties and software use by you in connection with your payment processing are compliant with PCI DSS. Use of the iPos Data Protection Service will not, on its own, cause you to be compliant or eliminate your obligations to comply with PCI DSS or any other Card Organization Rule. You must demonstrate and maintain your current PCI DSS compliance certification. Compliance must be validated either by a Qualified Security Assessor (QSA) with corresponding Report on Compliance (ROC) or by successful completion of the applicable PCI DSS Self- Assessment Questionnaire (SAQ) or Report on Compliance (ROC), as applicable, and if applicable to your business, passing quarterly network scans performed by an Approved Scan Vendor, all in accordance with Card Organization Rules and PCI DSS. You must deploy the iPos Data Protection Service (including implementing any upgrades to such service within a commercially reasonable period of time after receipt of such upgrades) throughout your Merchant Systems including replacing existing Card numbers on your Merchant Systems with Tokens. Full Card numbers must never be retained, whether in electronic form or hard copy. Use of the iPos Data Protection is not a guarantee against an unauthorized breach of your point of sale systems or any facility where you process and/or store transaction data (collectively, “Merchant Systems”). 

 

17. Forensic Audit Expenses

 

Forensic Audit Expenses means the costs of a security assessment conducted by a qualified security assessor approved by a Card Organization or PCI Security Standards Council to determine the cause and extent of a Data Security event; 

“Pollutants” means, but are not limited to, any solid, liquid, gaseous, biological, radiological or thermal irritant or contaminant, including smoke, vapor, dust, fibers, mold, spores, fungi, germs, soot, fumes, asbestos, acids, alkalis, chemicals and waste. “Waste” includes, but is not limited to, materials to be recycled, reconditioned or reclaimed and nuclear materials; and 

“Program Year” means the period from January 31st through December 31st of each year; and 

“Security Event Expenses” means Card Organization Assessments, Forensic Audit Expenses and Card Replacement Expenses. Security Event Expenses also includes EMV Upgrade Costs you agree to incur in lieu of a Card Organization Assessment.

“Post Event Services Expenses” means reasonable fees and expenses incurred by iPos or our affiliates or you with our prior written consent, for any service specifically approved by iPos in writing, including without limitation, identity theft education and assistance and credit file monitoring. Such services must be provided by or on behalf of iPos or you within one (1) year following discovery of a Data Security Event to a Cardholder whose Cardholder Information is the subject of that Data Security Event for the primary purpose of mitigating the effects of such Data Security Event;

 

18. iPos Service Does NOT Guarantee Compliance or Security

 

You acknowledge and agree that your use of the iPos Services does not guarantee your compliance with any of the rules or security standards established by the Card Organizations. You further acknowledge and agree that your use of the iPos Services does not guarantee the security of your IP addresses or that your systems are secure from unauthorized access. You are responsible for establishing and maintaining your own security policies and procedures, and for compliance with the Card Organization Rules and security standards, including any obligation to notify a Card Organization and/or us of any suspected breach of your systems or any suspicious transactions or fraudulent activity. You are responsible for any fines or penalties imposed by any Card Organization any other expenses and liabilities pursuant to the Agreement less only the benefits to which you may be entitled under the Liability Waiver provisions of this Agreement. In the event of a suspected breach of your systems or any suspicious transactions or fraudulent activity, you authorize us to share the details of any questionnaire or compliance report with the Card Organizations, and grant us and our vendors the right to access and perform a scan of the IP addresses identified within your profile. You agree and authorize payment for the additional scan. You further agree to cooperate with an investigation into such matter to include complying with the Card Organization and iPos pursuant to the terms of the Agreement. In addition to your obligations under the Agreement to comply with all laws, you are solely responsible for monitoring legal developments applicable to the operation of your business, interpreting applicable laws and regulations, determining the requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance program. iPos does not make and hereby expressly disclaim all representations or warranties including, without limitation (i) that access to the iPos Services will be uninterrupted or error free; (ii) that security breaches will not occur with respect to any information communicated through the iPos Services, the Internet, or any common carrier communications facility; and (iii) as to the results that may or may not be obtained by you in connection with your use of the iPos Services.

iPos DOES NOT MAKE ANY WARRANTY, GUARANTEE OR REPRESENTATION (EITHER EXPRESS OR IMPLIED) OF ANY KIND INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FIT- NESS FOR A PARTICULAR PURPOSE OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT , AND ALL SUCH WARRANTIES, GUARANTEES AND REPRESENTATIONS ARE HEREBY EXPRESSLY DISCLAIMED. ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS-IS, WITH ALL FAULTS". USE OF THE SERVICES DOES NOT GUARANTY SECURITY OR PREVENT A SECURITY BREACH OR COMPROMISE. WE MAKE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED THAT PARTICIPATION AND/OR USE OF OUR SERVICES WILL DETECT EVERY VULNERABILITY ON YOUR SYSTEM, IF ANY, OR THAT OUR VULNERABILITY ASSESSMENTS, SUGGESTED SOLUTIONS OR ADVICE WILL BE ERROR-FREE OR COMPLETE. CUSTOMER AGREES THAT WE SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY OR USEFULNESS OF ANY INFORMATION PROVIDED BY US, OR FOR ANY USE OF SUCH INFORMATION. You acknowledge and agree that we shall not be liable to you for any claims, damages, losses, obligations, costs or expenses or other liability arising directly or indirectly from or otherwise concerning (i) any termination, suspension, delay or disruption of service (including billing for a service) by the Internet, any common carrier or any third party service provider; (ii) any failure, disruption or malfunction of any of the iPos Services, the Internet, or any communications network, facility or equipment beyond our or a third party’s reasonable control, whether or not attributable to one or more common carriers; (iii) your failed attempts to access the iPos Services or to complete transactions via any of the iPos Services; (iv) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you; (v) any damages resulting from any delays and/or losses arising in connection with the iPos Services provided hereunder; or (vi) any loss of or inability to access data or information stored or generated by iPos Services. 

Data Disposal: From time to time, your account data or information, which is over 90 days old, may be deleted, purged or otherwise disposed. In addition, only a limited amount of your account data or information may be available online. Therefore, you are advised to print and download your account data and information, for record keeping purposes, on a periodic basis. You specifically agree that we are authorized to delete or dispose of your data or information and shall not be responsible for the deletion or disposal of your data or information from the PCI Rapid Comply Service. You assume full responsibility to backup and/or otherwise protect your data against loss, damage or destruction prior to and during all phases of the PCI comply Service, and to take appropriate measures to respond to any potential adverse impact of the systems or disruption service. 

PPDU – 1 You shall comply with all applicable laws pertaining to the privacy, secrecy, confidentiality, collection, usage, sharing, security, protection, disposal, or international transfer, of personal information, including laws applicable to direct marketing, telemarketing, and unsolicited e-mails or text messages. Applicable laws may include, but are not limited to US federal and state laws, such as the FTC Act, the California Consumer Privacy Act, the CAN-SPAM Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, Gramm-Leach-Bliley Act, state consumer protection laws, state data security laws, security breach notification laws, laws imposing minimum security requirements, laws requiring the secure disposal of records containing certain personal information, as well as any iPos POS PPDU All data collected via the iPos POS PPDU All data collected via the iPos POS Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by requirements related to such matters.

PPDU.2 You must implement reasonable security measures designed to protect the personal information that you collect, use, disclose, transfer, or otherwise process in connection with your use of the Service and Device. You acknowledge and agree that you are solely responsible for all privacy and information security obligations and liabilities relating to any data that you download, export, or otherwise transfer from the Service or Device to your own information environment.

PPDU.3 You shall maintain and make available to consumers a privacy policy applicable to your use of the Service and Device, including any applications installed on the Device.

PPDU.4 You must ensure that any third parties with which you share personal information in connection with your use of the Service or Device (including, without limitation, app developers whose applications are made available through the iPos POS PPDU All data collected via the iPos POS PPDU All data collected via the iPos POS Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by App Marketplace) will provide the same level of privacy and data security protection that you are legally required to maintain and which you promise to maintain.

PPDU.5 You must respond in a legally appropriate manner to any legally valid requests from individuals pertaining to the individual’s privacy or data subject rights at your sole cost and expense.

PPDU.6 You acknowledge and agree that when you install an application on the Device, you establish a contractual relationship with the developer of the application. By installing an application, you authorize and instruct iPos POS PPDU All data collected via the iPos POS PPDU All data collected via the iPos App and/or the iPos Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by to process and transfer personal information to facilitate your ongoing use of the application, including the disclosure of certain categories of personal information to the developer of the mobile application and the receipt of personal information from the developer, as may be required by the application, until such time as you instruct iPos POS PPDU All data collected via the iPos POS PPDU All data collected via the iPos POS Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by otherwise. You are solely responsible for instructing an application developer to cease processing and/or destroy any personal information.

PPDU.7 iPos POS PPDU All data collected via the iPos POS PPDU All data collected via the iPos POS Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by may process personal information to create aggregated, anonymized, or de-identified information and use that information for its lawful business purposes, including for purposes of creating data insights and analytics and demographic profiling.

PPDU.8 Unless you have received prior written consent to do so from iPos POS , you may not use the Services to (a) process personal information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership; or genetic data, biometric data, data concerning health, or data concerning a natural person’s sex life or sexual orientation; or (b) upload or incorporate, process transactions involving, or otherwise provide iPos POS  PPDU All data collected via the iPos POS PPDU All data collected via the iPos POS Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by with, any “protected health information” within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”).

PPDU.9 You agree to provide reasonable assistance to help iPos POS PPDU All data collected via the iPos POS  PPDU All data collected via the iPos POS Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by comply with its privacy or data protection legal obligations, or defend against any claims or investigations, in either case, in any way arising from or related to the Terms. You agree to promptly notify iPos POS PPDU All data collected via the iPos POS PPDU All data collected via the iPos POS Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by of any opt-outs and legally valid data subject rights requests relating to data with iPos’ possession, custody, or control.

 

19. Intellectual Property

 

19.1 All right, title and interest in and to all confidential information and intellectual property related to the Service (including Marks, all software, the content of any materials, web screens, layouts, processing techniques, procedures, algorithms, and methods and any updates, changes, alterations, or modifications to or derivative works from such intellectual property), owned, developed or licensed by iPos at any time or employed by iPos in connection with the Service, shall be and remain, as between iPos and you, iPos' or its affiliates', iPos' vendors' or licensors' (as applicable) sole and exclusive property and all right, title and interest associated with the Service not expressly granted by iPos in this Agreement are deemed withheld. You may not use Marks in any manner, including in any advertisements, displays, or press releases, without iPos' prior written consent. "Marks" means iPos' names, logos, emblems, brands, Service marks, trademarks, trade names, taglines or other proprietary designations.

19.2 You shall not, and shall not permit any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover by any means any source code, underlying ideas or algorithms of the Service, (or any part), except to the extent that such restriction is expressly prohibited by law; (b) modify, translate, or alter in any manner, the Service (or any part) or the Marks; (c) create derivative works of or based on the Service (or any part), or the Marks; (d) except for backup and archival purposes, directly or indirectly copy the Service (or any part); (e) republish, upload, post, transmit, disclose, or distribute (in any format) the Service (or any part) except as permitted in this Agreement ; or (f) remove, relocate, or otherwise alter any proprietary rights notices from the Service (or any part) or the Marks.

19.3 If iPos provides you with copies of or access to any software or documentation, unless otherwise expressly stated in writing, that software and documentation is provided on a personal, non-exclusive, non-transferable, non-assignable, revocable limited license for the period of your subscription to the Service and solely for you to access and use the software and documentation to receive the Service for its intended purpose on Devices owned or licensed by you.

19.4 You shall not take any action inconsistent with the stated title and ownership in this Section 15. You will not file any action, in any forum that challenges the ownership of any part of the Service, any related software, materials or documentation. Failure to comply with this provision will constitute a material breach of this Agreement.

 

20. iPos Service Disclaimer

 

USE OF THE SERVICE IS AT YOUR OWN RISK AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS" AND iPos DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICE IS SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR DOES NOT INFRINGE THE RIGHTS OF ANY PERSON.

 

21. Your Responsibilities

 

21.1 You shall comply fully with the requirements of all applicable federal, state and local laws and regulations related to your use of the Service and provision and use of any cardholder data, customer information and other point of sale data in connection with the Service. You shall not use the Service for illegal purposes.

21.2 You are solely responsible for obtaining all required permits, consents and licenses and monitoring legal developments applicable to the Service and the operation of your business, interpreting applicable laws and regulations, determining the requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance program.

21.3 You are solely responsible for ensuring the accuracy, quality, integrity, legality and appropriateness of all information and data regarding your business that you provide to iPos or its Service providers in connection with the Service. In addition, if applicable, you are solely responsible for verifying that all information and data loaded onto a Device by iPos or its Service providers at your request are accurate prior to your business use of such Device. iPos and its Service providers disclaim any and all liability arising out of any inaccuracies with respect to any information or data you provide.

21.4. You will not file any action, in any forum that challenges the ownership of the iPOS Data Protection, any related software, materials or documentation. Failure to comply with this provision will constitute a material breach of this Agreement. We have the right to immediately terminate this Agreement and your access to and use of the iPOS Data Protection in the event of a challenge by you. No additional rights are granted by implication, estoppel or otherwise.

21.5 You acknowledge and agree that your use of the iPos Service does not guarantee your compliance with any of the rules or security standards established by the Card Organizations. You further acknowledge and agree that your use of the iPos Service does not guarantee the security of your IP addresses or that your systems are secure from unauthorized access. You are responsible for establishing and maintaining your own security policies and procedures, and for compliance with the Card Organization Rules and security standards, including any obligation to notify a Card Organization and/or us of any suspected breach of your systems or any suspicious transactions or fraudulent activity. You are responsible for any fines or penalties imposed by any Card Organization any other expenses and liabilities pursuant to the Agreement less only the benefits to which you may be entitled under the Liability Waiver provisions of this Agreement. In the event of a suspected breach of your systems or any suspicious transactions or fraudulent activity, you authorize iPos to share the details of any questionnaire or compliance report with the Card Organizations, and grant iPos and our vendors the right to access and perform a scan of the IP addresses identified within your profile. You agree and authorize payment for the additional scan. You further agree to cooperate with an investigation into such matter to include complying with the Card Organization and iPos pursuant to the terms of the Agreement. In addition to your obligations under the Agreement to comply with all laws, you are solely responsible for monitoring legal developments applicable to the operation of your business, interpreting applicable laws and regulations, determining the requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance program. iPos does not make and hereby expressly disclaims all representations or warranties including, without limitation (i) that access to the iPos Service will be uninterrupted or error free; (ii) that security breaches will not occur with respect to any information communicated through the iPos Service, the Internet, or any common carrier communications facility; and (iii) as to the results that may or may not be obtained by you in connection with your use of the iPos Service.

21.6 iPos DOES NOT MAKE ANY WARRANTY, GUARANTEE OR REPRESENTATION (EITHER EXPRESS OR IMPLIED) OF ANY KIND INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY SERVICE PROVIDED UNDER THIS AGREEMENT , AND ALL SUCH WARRANTIES, GUARANTEES AND REPRESENTATIONS ARE HEREBY EXPRESSLY DISCLAIMED. ALL SERVICES PROVIDED UNDER THIS AGREEMENT  ARE PROVIDED ON AN "AS-IS, WITH ALL FAULTS". USE OF THE SERVICES DOES NOT GUARANTY SECURITY OR PREVENT A SECURITY BREACH OR COMPROMISE. WE MAKE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED THAT PARTICIPATION AND/OR USE OF OUR SERVICES WILL DETECT EVERY VULNERABILITY ON YOUR SYSTEM, IF ANY, OR THAT OUR VULNERABILITY ASSESSMENTS, SUGGESTED SOLUTIONS OR ADVICE WILL BE ERROR-FREE OR COMPLETE. CUSTOMER AGREES THAT WE SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY OR USEFULNESS OF ANY INFORMATION PROVIDED BY US, OR FOR ANY USE OF SUCH INFORMATION. 

21.7 You acknowledge and agree that we “iPos” shall not be liable to you for any claims, damages, losses, obligations, costs or expenses or other liability arising directly or indirectly from or otherwise concerning (i) any termination, suspension, delay or disruption of service (including billing for a service) by the Internet, any common carrier or any third party service provider; (ii) any failure, disruption or malfunction of any of the iPos Services, the Internet, or any communications network, facility or equipment beyond our or a third party’s reasonable control, whether or not attributable to one or more common carriers; (iii) your failed attempts to access the iPos Services or to complete transactions via any of the iPos Services; (iv) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you; (v) any damages resulting from any delays and/or losses arising in connection with the iPos Services provided hereunder; or (vi) any loss of or inability to access data or information stored or generated by iPos Services. 

21.8 In the event of a software malfunction, you shall have the obligation to immediately notify iPos of the failure and shall allow iPos fill and free access to the Devices where the iPos services are installed and the use of necessary data communications facilities and equipment at no charge to iPos, subject to your security rules.

21.9 You shall maintain the Devices where the iPos services are installed in good operating condition, repair, and appearance, and protect the same from deterioration other than normal wear and tear; shall use the Devices where the iPos services are installed in the regular course of its business, within its normal operating capacity, without abuse, and shall comply with all laws, regulations, directives, requirements and rules with respect to the use, maintenance and operation of the Devices where the iPos services are installed; shall use the Devices where the iPos services are installed solely for business purposes; shall not make any modification, alteration or addition to the Equipment, without the written consent of iPos; shall not at any time affix, and shall not remove the Equipment from the location where iPos originally installed the software  without the written consent of iPos, which shall not be unreasonably withheld.

21.10 You shall be responsible to a) have and maintain in place virus protection and security for all its systems, data, and overall network access, and b) all risk of loss, theft, damage or destruction of the Devices where the iPos services are installed from any cause whatsoever after taking possession of the Devices where the iPos services are installed. You acknowledges that security and access to any Devices where the iPos services are installed located on its premises is solely your responsibility and agree to notify iPos immediately if the Devices where the iPos services are installed are  lost, destroyed, stolen or taken by any other person. POSSIBLE DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT, AFTER THE INITIAL INSTALLATION OF THE DEVICES WHERE THE iPos SERVICES ARE INSTALLED OR ANY SOFTWARE CONTAINED THEREIN, THAT THE DEVICES WHERE THE iPos SERVICES ARE INSTALLED, SOFTWARE CONTAINED THEREIN, OR CUSTOMER'S DATA WILL REMAIN VIRUS-FREE. YOU WAIVE ANY CLAIMS HEREUNDER AGAINST iPos TO THE EXTENT ARISING FROM YOUR FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS PROTECTION, OR TO THE EXTENT ARISING AS A RESULT OF A FAILURE OR BREACH OF YOUR SECURITY, OR AS A RESULT OF ANY UNAUTHORIZED ACCESS TO YOUR SYSTEM.

 

 

 

22. iPos Obligations

 

22.1 iPos shall have the authority to determine who will be accepted as clients of iPos, and the completion of an application is not a guarantee of being approved as a client of iPos.

22.2 Once approved as a client of iPos, iPos will provide you with a list of approved hardware options for use of the iPos Services. If needed, iPos will provided on-site installation of iPos software and training of your employees on the use of the iPos Services. Upon completion of the installation and training presentation, you shall be required to complete a recorded voice verification which shall confirm that the iPos Services has been successfully installed and you and your staff have been fully trained and that the iPos Services meets the needs of your business. You further authorize iPos to record such verification. iPos DOES NOT WARRANT THAT INSTALLATION WILL BE FREE FROM DEFECTS OR MISTAKES. iPos EXPRESSLY DISCLAIMS AND MERCHANT AGREES TO HOLD iPos HARMLESS FOR ANY ERRORS IN THE SOFTWARE ONCE THE YOU HAVE COMPLETED VOICE VERIFICATION.

22.3 Once installation and training is complete, iPos will provide free remote technical support 24/7. iPos will also provide up to two (2) free onsite visits at your request by our Service Team as part of this Agreement. Any additional on-site visits by our Service Team per your request would be billed at $99.00 per hour. The following services are supported during on-site visits: 1) Software 2) Network: a) Network TCP/IP configuration; b) Wireless VLAN setup and configuration; c) Remote Systems Access configuration; d) Firewall Configuration 3) Software Support & Training on the iPos App.

22.4 Upon written notification of any malfunction covered under this Agreement, iPos shall provide remote support to determine if the malfunction is due to an error caused by the software or due to defective hardware out of the control of iPos. If the malfunction is due to a software malfunction, iPos will work diligently to rectify the situation. If the issue is with the hardware, iPos will work with you and assist you where possible to get your hardware repaired or replaced. However, you acknowledge, that iPos is the software provider and is not the hardware provider and has no obligation to you with regards to the functionality, performance or guarantee of the hardware. 


 

 

 

23. Limitations on Liability and Damages

 

IN NO EVENT SHALL iPos OR ITS AFFILIATES OR ANY OF iPos' OR ITS' AFFILIATES RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

iPos' AND ITS' AFFILIATES CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ANY INDEMNITIES), REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED THE AMOUNT OF FEES RECEIVED BY IPOS UNDER THIS AGREEMENT FOR THE IMMEDIATELY PRECEDING SUBSCRIPTION TERM.

 

 

24. Waiver of Jury Trial

 

THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THESE iPOS TERMS AND CONDITIONS.

 

 

25. Severability

 

In the event that any of the terms of this Agreement are in conflict with any rule of laws, regulations, provisions or otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceable shall not invalidate any of the other terms of this Agreement and this Agreement such continue in force, unless the invalidity or Un-forcibility of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement.

 

 

26. Indemnity

 

You will indemnify, defend and hold iPos harmless (and iPos' employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to:

(a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies or the card associations' rules;

(b) your wrongful or improper use of the Service;

(c) any transaction submitted by you through the Service (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or Services offered or sold by you);

(d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights;

(e) your use of any personal information obtained in connection with your use of the Service or the Device, or any application used on the Device;

(f) the activities under your Account, or any other party’s access and/or use of the Service or Device with your unique username, password, API key, or other appropriate security code;

(g) your failure to maintain reasonable security in connection with the use of the Service or the Device;

(h) any data breach, information security incident, or similar, arising from your action or inaction;

(i) your violation of any law, rule or regulation of the United States or any other country; or

(j) any other party’s access and/or use of the Service with your user names, password and any other sign on credentials/access controls for the Service or any software provided or approved by iPos to authenticate access to, and use of, the Service and any software.

 

 

27. Representation and Warranties

 

27.1 You represent and warrant that: (a) you are validly existing, in good standing and have the right, power, and authority to enter into and perform under this Agreement;

(b) any sales transaction submitted by you (i) is genuine and arises from a genuine sale or Service that you directly sold or provided, (ii) accurately describes the goods or Services sold and delivered to a purchaser and (iii) represents the correct amount of goods or Services purchased from your business;

(c) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the consumer;

(d) you, all transactions initiated by you and your use of the Service will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations and card association rules and regulations;

(e) except in the ordinary course of business, no sales transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity;

(f)you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service; and

(g) you are not engaged in and will not accept payment for any illegal activity, in the legal jurisdiction(s) in which you do business or provide goods and/or Services.

27.2 The following are excluded from the iPos Warranty as set forth in this section of the Agreement: 1) Damages resulting from abuse, spillage or mishandling of the equipment; 2) Damages resulting from electrical surges or power irregularities. The installation of a UPS device to maintain AC power quality to protect your system is recommended. 3) Damages resulting from installation of other non-qualified software on the device where the iPos software is installed 4) Damages resulting from Virus injections or inappropriate Internet access. The sole intention of the system is for iPos use only. It should not be used for office or Internet browsing. Internet access is reserved for credit card processing / batching and remote support access; 5) Problems arising from relocating or reconfiguring equipment.

27.3 iPos HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR IMPOSED BY STATUTE OR OTHER LAW) THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT , THE iPos SERVICE OR ANY COMPONENT THEREOF, INCLUDING THE iPos DATA PROTECTION SERVICE AND OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR UNINTERRUPTED OR ERROR FREE OPERATION. FOR THE AVOIDANCE OF DOUBT, iPos MAKES NO REPRESENTATIONS OR WARRANTIES RELATED TO THE iPos SERVICE OR ANY FUNCTIONALITY OR SERVICES RELATED THERETO, AND iPos SHALL IN NO WAY HAVE ANY LIABILITY OR OBLIGATION RELATED THERETO.

 

28. Governing Law

 

iPos and you acknowledge and agree that this Agreement and Guarantee contained herein, was, and shall be deemed to have been made and delivered in Florida. The laws of the State of Florida, without giving effect to its conflicts of law principles shall govern all matters (whether in contract, statute, tort or however characterized) arising out of or relating to this Agreement and the Guarantee contained herein, including without limitation, the validity, interpretation, construction, performance and enforcement of the Agreement and Guaranty contained herein, the courts of the State of Florida shall have and be vested with personal jurisdiction over the parties. The parties further agree that any and all actions, claims, suits or proceedings arising out of or relating (directly or indirectly) to this Agreement or the Guaranty contained herein shall be filed and litigated in Florida, and such courts shall have exclusive jurisdiction over any action, claims, suit or proceeding arising out of or relating (directly or indirectly) to this Agreement or the Guarantee contained herein. If you bring legal action against iPos for any reason, you shall commence the action within one (1) year of the date of when such error or the incident giving rise to such action occurred and only after providing written notice to iPos and opportunity to resolve the issue and a written statement that the issue was not able to be resolved.

 

 

29. Conflicting Terms

 

The terms and conditions of this Agreement shall prevail over any additional or contrary terms which may be contained in any instructions or other communications.

 

 

30. Personal Guarantee

 

This general, absolute, and unconditional Guaranty (“Guaranty”) by owners and officers of the business (collectively “Guarantor” or “my” or “I” or “me”) is for the benefit of the business entity for which iPos will be providing services. For value received, and in consideration for the mutual undertakings contained in the Agreements, addenda, exhibits, and all other related agreements entered between you and iPos or its parents, affiliates, successors, and assigns, the owners and Officers of business entity (you) absolutely and unconditionally guarantee the full performance of all your obligations to iPos, together with all costs, expenses, and attorneys’ fees incurred by iPos, its parents, affiliates, successors, or assigns, in connection with any action, inactions, or defaults of you with respect to this Agreement or any other Agreement currently in effect or in the future entered into between you or your principals and iPos, its parents, affiliates, successors, or assigns. You waive any right to require iPos, its parents, affiliates, successors, or assigns, to proceed against other entities. There are no conditions attached to the enforcement of this Guaranty. You authorize, iPos, its parents, affiliates or assigns to make from time to time any personal credit or other inquiries and agree to provide, at iPos’ request, financial statements and/or tax returns. You agree that this Guaranty shall be governed and construed in accordance with the State of Florida, and that the courts of Dade County shall have and be vested with personal jurisdiction. The termination of this Agreement or Guaranty shall not release me from liability with respect to any obligations incurred before the effective date of termination. No termination of this Guaranty shall be affected by any change in my legal status or any change in the relationship between you and iPos. This Guaranty shall bind and inure to the benefit of the personal representatives, parents, heirs, administrators, successors and assigns of Guarantor and iPos.

 

 

31. Consent to Electronic Communication

 

31.1 You agree that iPos, its affiliates and its third party subcontractors and/or agents, may use, in addition to any live agent calls, an automatic telephone dialing system, an artificial or pre-recorded voice, or both, to contact you at the telephone number(s) you have provided, and/or may leave a detailed voice message if you are unable to be reached, even if the number provided is a cellular or wireless number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes.

 

31.2 You consent to receiving commercial electronic messages, including e-mail messages, SMS and text messages, and telephone calls, from iPos, its affiliates and its third-party sales contractors and/or agents.

 

 

32. Non-Exclusive Credit Card Processing

 

You agree that during the term of this Agreement, and any renewal term that you may enter into a Merchant Transaction Processing Agreement with iPos and process credit/debit/gift card transactions with iPOS on a non-exclusive basis. In the event you decide to elect another merchant service provider you understand and acknowledge that it may result in an increase on all other services rendered by iPos. If you decide to elect another merchant service provider, you are required to inform iPos at the time of executing this Agreement. Failure to do so shall result in iPos’ right to immediately terminate this Agreement, and forfeiture of your rights without notice or opportunity to cure. Such termination of this Agreement shall not relieve you of your obligation to pay Fees that have accrued as of the termination date and shall result in an Early Termination Fee.

 

 

33. Amendment

 

iPos has the right to change or add to this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service with notice that iPos in our sole discretion deem to be reasonable in the circumstances, including such notice via iPos' App. Any use of the Service after iPos' publication of any such changes or providing notice shall constitute your acceptance of this Agreement as modified.

 

 

34. Assignment

 

This Agreement, and any rights or licenses granted hereunder, may not be transferred or assigned by you (including by operation of law, transfer of voting control of you or otherwise) without iPos' prior written consent, but may be assigned by iPos without restriction.

 

 

35. General Provisions

 

This Agreement is a complete statement of the agreement between you and iPos and describe the entire liability of iPos and its vendors and suppliers (including processors) and your exclusive remedy with respect to your use and access to the Service. In the event of a conflict between this Agreement and the Privacy Policy, the Privacy Policy shall prevail. This Agreement shall be governed and construed in accordance with the laws of the State of Florida without regard to its conflicts of laws provisions. You and iPos agree to submit to the exclusive jurisdiction of the courts located within the County of Miami-Dade, Miami Florida to resolve any legal matter arising from this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that iPos may have under trade secret, copyright, patent or other laws. Except for iPos' affiliates and as otherwise stated herein, no persons shall be third party beneficiaries to this Agreement. No waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such provision or any other provision, and iPos’ failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Notices sent to your last known e-mail address or postal address, as indicated in our records, shall constitute effective notice to you under this Agreement.

 

 

 

36. Contacting iPos

 

If you have any questions about this Agreement, please contact iPos at support@ipointofsale.com. Except as otherwise stated in this Agreement, all notices to iPos required or permitted in this Agreement relating to the Service shall be in writing and sent by postal mail to: iPos LLC., Attention: Inquiries, 4995 NW 72nd Ave., Miami, FL 33166. Notices shall be effective when actually received or, if sent by courier, when delivered.