TERMS OF USE

This Merchant User License Agreement (the “Agreement”) dated as of the date of acceptance by means of a click-through, is made by and among bePOS Inc. a Delaware Corporation (“bePOS”) and the entity designated by the registration data provided herewith (“Licensee”) and applies to Licensee’s use of software downloaded from bePOS and Licensee’s use of services provided by bePOS (“bePOS Services”).

READ THIS LICENSE CAREFULLY BEFORE LOADING ANY SOFTWARE FROM BEPOS OR USING THE BEPOS SOFTWARE OR BEPOS SERVICES. BY LOADING THE BEPOS SOFTWARE OR USING THE BEPOS SERVICES, LICENSEE ACCEPTS AND AGREES TO BECOME BOUND BY THE TERMS OF THIS LICENSE.

BEPOS RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT BY PROVIDING NOTICE OF CHANGES ON THE BEPOS WEBSITE. LICENSEE AGREES TO INSPECT THE BEPOS WEBSITE PERIODICALLY TO STAY INFORMED ABOUT SUCH CHANGES. LICENSEE AGREES THAT LICENSEE'S CONTINUED USE OF THE BEPOS SERVICE AFTER SUCH CHANGES ARE ANNOUNCED CONSTITUTES ACCEPTANCE OF SUCH CHANGES.

bePOS shall retain the ownership of the provided copy of bePOS software, and the documentation provided in addition to that (referred to as a single entity, or as components, as "the Licensed Software") which is licensed on a non-exclusive basis for use under the following conditions.

Permitted Uses

Subject to the terms hereunder, bePOS hereby grants to Licensee a limited, non-exclusive, non-transferrable, revocable license, without the right to sub-license, to install and operate the Licensed Software and to operate an account on the bePOS website and related applications solely for the benefit of Licensee and not for any third party, until the termination of this Agreement. Any rights not expressly granted hereunder are reserved. There are no implied rights of any kind. To the extent that the Licensed Software includes intellectual property rights of any third party ("Third Party Rights"), the license granted is to the extent that bePOS can license such the Third Party Rights.

Free Account License

 

A free account includes access to one bePOS Register and bePOS BackOffice license for one location. bePOS, at its’ sole discretion, may remove access, cancel or terminate your free account at any time for any reason. Reasons for such termination include, but are not limited to, accounts experiencing a period of inactivity or exceeding the usage and sales limits contingent with a free account. bePOS also reserves the right to contact you at any time regarding your free account and your options to upgrade to a paid software plan.

Prohibited Uses

 

Licensee shall not (a) make copies of or further distribute the Licensed Software, including copying onto any other medium, (b) distribute, rent, sublicense, lease, resell, or assign the Licensed Software, (c) alter, modify or adapt the Licensed Software or the bePOS Services, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (d) export the Licensed Software without the appropriate foreign government licenses and without bePOS’s prior written approval, (e) resell, rent or otherwise provide access to the bePOS services to a third party or (f) take any action in an attempt to obtain any other bePOS user’s data, cause malfunction, crash, tamper with or otherwise impair the bePOS website and related applications, and their services. Any rights not expressly granted hereunder are reserved by bePOS.

No rights in the Licensed Software or bePOS Services are granted, whether expressly or by implication, including, without limitation, any rights in any patents, copyrights, trademarks or trade secrets embodied therein, except in connection with the permitted uses expressly described herein.

Fees

 

Licensee agrees to timely pay the monthly fee set out in the order form, otherwise agreed by written agreement. Licensee agrees to the Billing Policy, incorporated herein, and located. Failure to comply with or otherwise pay fees due is a material breach of this agreement.

 

Data

 

Licensee acknowledges and agrees to the terms of the bePOS Privacy Policy located here. bePOS agrees that as between Licensee and bePOS, (a) Licensee's data maintained by Licensee on the bePOS website and related applications belongs to Licensee; and (b) bePOS acts as a data processor (as defined in the Data Protection Act 1998 ("DPA")). Each party hereto undertakes to comply with the DPA about its use of such data. Licensee hereby grants permission to bePOS for bePOS to use the data for providing Licensee the bePOS account, improving and maintaining the bePOS website and related applications and their services and for analytical and marketing purposes in a manner where such data is aggregated with other user data and cannot be readily reverse engineered into personally identifiable information, and we may share your data with our trusted third party affiliates and partners in implementing this data usage. We rely on some of our third party affiliates and partners for support of the products and services we offer. All such third party affiliates and partners are required to preserve the confidentiality of any personal information they may access.

End Customer Personal Information

Licensee agrees that notwithstanding anything to the contrary herein, Licensee shall handle any personally identifiable information that it inputs into the bePOS systems in the following manner: (i) in the event Licensee seeks to export such data, Licensee shall use a commercially reasonable contact management tool to provide an opt-out mechanism for anyone who has provided Licensee personally identifiable information that is stored on bePOS's systems, (ii) Licensee agrees that bePOS can delete such data in the event the Licensee exercises the bePOS opt-out mechanism and (iii) any use of such data by Licensee shall comply with bePOS's privacy policy. The licensee shall indemnify and hold harmless bePOS and the bePOS Parties from any claim brought against bePOS alleging that personal information stored on bePOS was improperly used where such use was by Licensee while such data was stored on bePOS or any use after Licensee has exported such data.

 

Limited Liability

NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED UNDER GOVERNING LAW.

LICENSEE AGREES THAT THE LICENSED SOFTWARE, AND BEPOS SERVICES ARE PROVIDED "AS IS." WITHOUT ANY WARRANTY EXPRESS OR IMPLIED AND WHETHER AS TO MERCHANTABILITY, FITNESS FOR PURPOSE OR INFRINGEMENT. NO WARRANTY OR REPRESENTATION IS GIVEN, AND/OR ANY LIABILITY IS ACCEPTED, BY BEPOS IN RELATION TO THIRD PARTY RIGHTS. ANY USE OF THE LICENSED SOFTWARE AND BEPOS SERVICES IS AT LICENSEE'S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL BEPOS OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS ("BEPOS PARTIES") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE BEPOS SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, BEPOS IS NOT RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR BEPOS SERVICES, LOSS OF DATA, THE COSTS OF RECOVERING DATA, ANY LOSSES INCURRED ARISING IN ANY WAY FROM USE OF THE OFFLINE CREDIT PAYMENTS FEATURE, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS, LOSSES, OR DAMAGES YOU MIGHT INCUR. BEPOS MAKES NO WARRANTY OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE LICENSED SOFTWARE OR BEPOS SERVICES FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DUE TO THE HIGH DEGREE OF VARIANCE IN SALES TAX COLLECTION, CALCULATION, AND REPORTING REQUIREMENTS FROM STATE TO STATE, BEPOS MAKES NO GUARANTEE THAT THE EXPECTED SALES TAX DUE AMOUNTS IN REPORTS WILL BE THE SAME AS THOSE CALCULATED BY THE LICENSEE'S TAX AUTHORITIES. BEPOS PROVIDES AN ESTIMATE OF THE EXPECTED SALES TAX DUE SOLELY FOR THE CONVENIENCE OF THE LICENSEE.

GIVEN THAT LICENSEE IS IN A BETTER POSITION THAN BEPOS TO FORESEE AND EVALUATE ANY POTENTIAL DAMAGE OR LOSS WHICH LICENSEE MAY SUFFER IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE AND/OR THE BEPOS SERVICES AND THAT BEPOS CANNOT ADEQUATELY INSURE ITS POTENTIAL LIABILITY TO LICENSEE, LICENSEE ACKNOWLEDGES AND AGREES THAT THE EXCLUSIONS AND LIMITATIONS CONTAINED HEREIN ARE REASONABLE. TO THE EXTENT THAT THE preceding LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNREASONABLE, BEPOS'S AGGREGATE LIABILITY SHALL NOT EXCEED $100. LICENSEE SHALL ACT AT ALL TIMES TO MITIGATE ANY LIABILITY.

LICENSEE ACKNOWLEDGES AND AGREES THAT SHARING OF ITS ACCOUNT INFORMATION, LOGIN INFORMATION OR PASSWORDS SHALL BE AT ITS SOLE AND ABSOLUTE RISK, AND THAT BEPOS SHALL NOT BE LIABLE FOR ANY DAMAGE ARISING AS A RESULT OF SUCH SHARING.

Some countries do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Termination 


Licensee may terminate this license at any time unless you have agreed to a more extended purchase commitment period. bePOS, in its sole discretion, has the right to suspend or terminate this license and your account and refuse any and all current or future use of the bePOS Services for any reason at any time. Licensee's duties to (i) pay amounts due and payable, (ii) refrain from any reverse engineering or other act in violation of this agreement or (iii) indemnify bePOS, and the bePOS Parties shall survive termination of this Agreement. Upon termination Licensee will destroy all copies of the Licensed Software and documentation onto which the Licensed Software or documentation has been installed. Upon termination bePOS shall terminate the Licensee's access to their bePOS account, the account itself and the data residing therein. 

LICENSEE MUST EXPORT THEIR ACCOUNT DATA BEFORE TERMINATION OF THE BEPOS SERVICE. BEPOS SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION. In addition, bePOS reserves the right and Licensee acknowledges such right for bePOS to terminate service of Licensee's account on 30 days' notice if bePOS determines in its sole discretion that it is not capable of fully meeting the apparent requirements of Licensee. 

 

Confidentiality 


Licensee agrees that the Licensed Software and the operation of the bePOS Services and its processes are the confidential information of bePOS and decides not to disclose such software or such maintenance and processes to any third party. Licensee agrees that breach of this duty of confidentiality shall cause irreparable harm for which monetary damages would be difficult to quantify or insufficient, and therefore bePOS shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond. 


From time to time, bePOS will have Beta Software Programs (“Beta Program”) to make pre-release software, pre-release services, and related documentation, materials, and information (collectively, the “Pre-Release Software”) available to Beta Program participants for the purpose of providing bePOS with feedback on the quality and usability of the Pre-Release Software. The participants in a Beta Programs’ confidentiality obligations include, but are not limited to (a) the Beta Product (b) bePOS development or marketing plans that you learn about as part of your participation as a tester, (c) your participation in the Beta Program (d) verbal or written communications from bePOS employees, agents, contractors or other representatives regarding bePOS Materials and the Beta Product. 


Credit Card Processing Terms And Conditions 
 

If Licensee has selected that credit card transaction processing will be provided automatically with the bePOS services, Licensee agrees to the following contractual provisions: 


Licensee hereby authorizes bePOS to bind Licensee to the end-user license agreement proffered by its payment gateway provider(s) to establish Licensee as a customer of its payment gateway provider(s). 


The licensee shall be responsible for the operation and connection of their point of sale equipment with the payment gateway provider(s)’s systems and services. 


The licensee is liable for all fees charged to bePOS by its payment gateway provider(s) for Licensee’s use of the payment gateway provider(s)’s systems and services 


Licensee shall: (i) make reasonable efforts to secure any credit card transaction data residing on the equipment owned, controlled or operated by Licensee from intrusion or unauthorized access, (ii) comply with all state and federal laws governing the disclosure and use of retail customer information, (iii) not use, disclose, store, sell or disseminate any credit/debit card-holder information obtained in a credit/debit card transaction processed through bePOS or its payment gateway provider(s), including but not limited to storing private cardholder credit/debit card information such as card numbers, expiration dates and CVV numbers, outside of the payment gateway, except as permitted by the card-holder, (iv) comply with the requirements of any debit/credit card or other payment brand rules, including those related to data security and customer data. 


Licensee agrees that neither bePOS nor its payment gateway provider(s) shall be liable for any improperly processed transactions, illicit access to Licensee’s account with its payment gateway provider(s) or any of Licensee’s transaction data or unauthorized disclosure and use of passwords or its payment gateway provider(s)’s account access information. 


Licensee agrees to immediately notify bePOS in the event of any security breach of Licensee’s systems or unauthorized access to Licensee’s transaction data. 


YOU HEREBY INDEMNIFY AND AGREE TO HOLD BEPOS HARMLESS FROM ANY CLAIM, (INCLUDING ANY ASSOCIATED DAMAGES, COSTS AND REASONABLE ATTORNEYS FEES INCURRED BY BEPOS OR ITS AFFILIATES) BROUGHT AGAINST BEPOS OR ITS AFFILIATES BY ANY THIRD PARTY ARISING FROM OR IN CONNECTION WITH ANY LOSS OR DAMAGE WHOLLY OR PARTIALLY CAUSED BY YOUR USE OF THE OFFLINE CREDIT PAYMENTS FEATURE IN ORDER TO ACCEPT CREDIT CARD TRANSACTIONS WITHOUT AUTHORIZATION WHERE SUCH TRANSACTIONS ARE SUBSEQUENTLY DENIED BY THE TRANSACTION PROCESSOR FOR ANY REASON. 


LICENSEE AGREES THAT USE OF THE PAYMENT GATEWAY PROVIDER(S)'S SYSTEMS, OR SERVICES IS AT LICENSEE'S SOLE AND ABSOLUTE RISK AND THAT NEITHER BEPOS, NOR ANY BEPOS PARTY SHALL BE LIABLE IN ANY WAY OR UNDER ANY THEORY IN THE EVENT OF ANY CLAIM, DAMAGE OR EXPENSE INCURRED BY LICENSEE ARISING FROM USE OF THE PAYMENT GATEWAY PROVIDER(S)'S SYSTEMS OR SERVICES. LICENSEE ACKNOWLEDGES THAT BEPOS IS NOT RESPONSIBLE FOR ITS PAYMENT GATEWAY PROVIDER(S)'S SYSTEMS AND THAT NO WARRANTY FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED, ARISES ON THE PART OF BEPOS. LICENSEE AGREES THAT LICENSEE'S SOLE RECOURSE IN THE EVENT OF ANY CLAIM IS AGAINST ITS PAYMENT GATEWAY PROVIDER(S) AND LICENSEE HEREBY IRREVOCABLY RELEASES AND WAIVES ANY CLAIM IT HAS OR MAY HAVE, WHETHER OR NOT INCHOATE, AGAINST BEPOS AND THE BEPOS PARTIES ARISING FROM USE OF ITS PAYMENT GATEWAY PROVIDER(S)'S SYSTEMS. 


bePOS EMV Liability Promise 

 

1. Merchant Qualification 
All bePOS merchants that subscribe for bePOS point of sale services: 
THAT 

  • Are subscribed for bePOS point of sale services and have ordered an EMV-capable iCMP or iPP320 credit card reader from bePOS ; 

  • Are currently using a third-party credit card processor who referred the merchant to bePOS through our official Partner Program;

  • Are customers in good standing at the time of presentation to bePOS of the EMV related liability shift chargeback in question. 

 

bePOS's
 

2. Duration of the Liability Shift Protection Offer EMV related liability shift protection is in place for eligible EMV related charged back transactions that occur on or after October 1, 2015, and are presented to bePOS before June 30, 2018 (which date may be extended by bePOS in BePOS's sole discretion) for BePOS merchants that meet bePOS's Merchant Qualification. 


EMV related chargeback transactions that a bePOS merchant verifies were processed using a chip-enabled card on an EMV-capable


3. Types of Transactions that May Qualify iCMP or iPP320 credit card reader provided by bePOS that contained a counterfeit magstripe that was swiped to process the transaction, and a signature was captured by the merchant in connection with preparing the transaction. 


4. Types of Transactions that Do Not Qualify 
Other non-EMV related liability shift chargeback transactions, including those charged by a bePOS merchant's customers and charged back in connection with a failure to perform services, delivery of defective products, credit cards that have been stolen, card-not-present transactions or for lack of authorization, do not qualify. 


5. Process Requirements to Request Protection 
A merchant must contest their liability for the EMV related chargeback transaction with their processor within the period and on the terms required by their processor and by the requirements set by their processor. If the merchant does not prevail on the appeal, and the processor concludes that the merchant should remain liable for the chargeback solely due to the EMV related liability shift, and the merchant believes that the chargeback may qualify for bePOS's EMV Liability Shift Protection, then the merchant must submit the notice that it received from its processor and all materials related to the appeal to bePOS. bePOS will notify the merchant if additional information is required. If bePOS determines that the merchant's chargeback is covered by bePOS's EMV Liability Shift Protection, bePOS will refund the amount of the EMV related transaction that was charged back. 


A maximum total of up to $500 of bePOS approved


6. Covered Limitation Amounts EMV related chargebacks for each bePOS merchant will be eligible for refund by bePOS. In no event will any bePOS merchant be eligible for more than a total of $500 for all EMV related chargebacks incurred by any bePOS merchant pursuant to bePOS’s EMV Liability Promise. 


7. Amendments 
bePOS reserves the right to amend these Terms and Conditions at any time in bePOS’s sole discretion. 


Representation 


The Licensee represents and warrants that it has the due right and power to enter into this Agreement, coming into this Agreement will not cause the breach of any agreement Licensee has with a third party and that all of the registration information provided to bePOS is accurate in all respects. 


Choice of Law and Forum 


This Agreement shall be construed under the laws of Australia, as applied to contracts performed entirely within the state. Any dispute arising under this Agreement shall be exclusively heard in the state or federal courts residing in Australia. Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.