Points of Sale Agreement

POINTS OF SALE AGREEMENT

This Points of Sale Agreement (the Agreement) is entered into as of by and between Provider Name: , an entity formed in , with principal place of business at , and Merchant Name: , an entity formed in , with principal place of business at .

RECITALS

WHEREAS, Provider develops, supplies and supports points of sale software, terminals and related services designed to facilitate electronic payment acceptance and transaction processing; and

WHEREAS, Merchant operates retail locations and desires to obtain from Provider the hardware, software and related services necessary to accept electronic payments through points of sale systems under the terms set forth herein; and

WHEREAS, Provider is willing to provide such equipment, software licenses and services and Merchant is willing to accept and pay for the same on the terms and conditions contained in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties agree as follows.

1. DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below: (a) "Equipment" means the physical terminals, card readers, peripheral devices and communications hardware provided by Provider; (b) "Software" means the point of sale applications and related firmware provided by Provider; (c) "Services" means installation, configuration, transaction routing, settlement support, maintenance and any other services described in Exhibit A or otherwise agreed in writing; and (d) "Transaction Data" means all payment cardholder data, transaction records and related logs generated through the Equipment or Software.

2. SCOPE OF SUPPLY

Provider shall supply to Merchant the Equipment, Software and Services described in Exhibit A. Provider grants Merchant a non-exclusive, non-transferable license to use the Software solely in connection with the Equipment and Services at the Merchant locations expressly listed in Exhibit B. Merchant shall not modify, decompile, distribute or otherwise attempt to derive the source code of the Software.

3. EQUIPMENT INSTALLATION AND TITLE

Provider shall install and commission the Equipment at Merchant locations in accordance with the schedule in Exhibit C. Title to Equipment shall remain with Provider unless otherwise expressly stated in a written equipment purchase schedule. Merchant shall maintain the Equipment in good working order and shall not remove or obscure any identification or ownership marking on the Equipment.

4. TRANSACTION PROCESSING; SETTLEMENT

Provider will route Transactions to acquiring banks or processors on Merchant's behalf and will assist in settlement. Provider does not guarantee settlement timing; settlement timing is subject to acquiring bank rules. Merchant shall provide all information reasonably requested to enable transaction processing and compliance with applicable card brand rules.

5. FEES AND PAYMENT

All fees are due within thirty (30) days of Provider's invoice. Outstanding amounts accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Merchant shall be responsible for chargebacks, refunds and any fines or penalties assessed due to Merchant's non-compliance with applicable rules.

6. DATA SECURITY AND COMPLIANCE

Merchant shall comply with all applicable payment card industry standards, card brand rules and applicable law in the storage, transmission and processing of Transaction Data. Merchant will implement and maintain reasonable administrative, technical and physical safeguards to protect Transaction Data from unauthorized access. Provider will maintain commercially reasonable security measures for the Software and Services and shall notify Merchant promptly upon discovery of a security breach affecting Merchant Transaction Data.

7. CONFIDENTIALITY

Each party shall maintain the confidentiality of Confidential Information of the other and shall not disclose such information to third parties except to employees, agents or contractors who have a need to know and are bound to confidentiality obligations no less protective than those herein. Confidential Information shall not include information that is or becomes publicly available through no fault of the receiving party.

8. WARRANTIES; DISCLAIMER

Provider warrants that the Equipment and Software will materially conform to their published specifications for a period of ninety (90) days from installation. Provider's sole obligation and Merchant's sole remedy for breach of this warranty shall be, at Provider's option, repair or replacement of non-conforming Equipment or correction of Software defects. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9. LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR A BREACH OF CONFIDENTIALITY, THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY MERCHANT TO PROVIDER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.

10. INDEMNIFICATION

Merchant shall defend, indemnify and hold harmless Provider and its officers, directors and affiliates from and against any and all third-party claims, liabilities, losses, damages and expenses (including reasonable attorneys' fees) arising out of Merchant's breach of this Agreement, Merchant's negligence or willful misconduct, or Merchant's non-compliance with applicable payment rules. Provider shall indemnify Merchant for claims arising from Provider's gross negligence or willful misconduct in providing Services.

11. TERM AND TERMINATION

This Agreement shall commence on the Effective Date and shall continue for an initial term of months and shall automatically renew for successive one (1) year terms unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Either party may terminate this Agreement for material breach by the other party if the breach remains uncured thirty (30) days after written notice specifying the breach.

12. RETURN OF EQUIPMENT; FINAL SETTLEMENT

Upon expiration or termination, Merchant shall return all leased Equipment to Provider, in good working order, freight prepaid, or pay Provider the fair market value as set forth in Exhibit D. Final settlement of fees, chargebacks and other obligations shall survive termination.

13. INSURANCE

Merchant shall maintain commercial general liability insurance, including product liability and cyber liability coverage where applicable, with limits reasonably satisfactory to Provider. Provider shall maintain professional liability and errors and omissions insurance appropriate to the Services provided.

14. RECORDS AND AUDITS

Provider or Provider's designee shall have the right, upon reasonable notice and during normal business hours, to audit Merchant's compliance with the transaction processing and data security obligations under this Agreement. Merchant shall make available records and personnel reasonably necessary to permit such audits.

15. NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered by certified mail, overnight courier, or personal delivery to the addresses set forth below or to such other address as either party may specify in writing.

16. AMENDMENT; WAIVER

No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties. The failure of either party to enforce any right shall not constitute a waiver of that right.

17. GOVERNING LAW; VENUE

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to its conflict of law principles. The parties consent to the exclusive jurisdiction and venue of the state and federal courts located in that state for any dispute arising out of or relating to this Agreement.

18. ENTIRE AGREEMENT; SEVERABILITY

This Agreement, including all Exhibits incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and proposals, whether written or oral. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.

19. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by electronic transmission shall be deemed original signatures for all purposes.

20. MISCELLANEOUS PROVISIONS

If either party is prevented or delayed in performing any obligation due to causes beyond its reasonable control, including acts of God, governmental actions, internet or network failures, strikes or labor disputes, performance shall be excused for the duration of such event. The prevailing party in any action to enforce this Agreement shall be entitled to recover reasonable attorneys' fees and costs.

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