Terminal Device Software License Agreement

Please carefully read this software license agreement before using your Everyware Terminal product or installing any updates. By using your Everyware Terminal product or installing an update, You agree that You are a Customer of Everyware and you expressly agree to the terms of this license along with Everyware’s Terms of Use. If you do not agree, do not use the product or install the update. If you've recently purchased an Everyware Terminal product and disagree with the terms of this license, you may return the unused product within the return period to Everyware or an authorized distributor for a refund, subject to their return policy.

1. Key Definitions Specific to Merchant Terminal License

"Everyware" refers to Everyware Worldwide, Inc., a Delaware corporation, when the Everyware Terminal product is purchased and owned by you. The intellectual property and software running the Everyware Terminal product are owned by Everyware. "Terminal Device Software" includes the software and firmware provided by Everyware or its designee on or for installation on an Everyware Terminal Product, as well as other software provided by Everyware or its designee for installation on the Everyware Terminal product, along with associated documentation and sample code. This encompasses the original Terminal Device Software and any updates provided by Everyware or its designee in any form. All definitions and terms set forth in Everyware’s Terms of Service shall continue to apply unless expressly stated otherwise below in this Software License Agreement. In the event that any conflicting meaning arises between the Terms of Service and specific language in this Software License Agreement, the express language in this Software License Agreement shall control.

2. Delivery and Updates

2.1 Delivery: The original Terminal Device Software will be delivered as installed on the Everyware Terminal product or provided as a download.

2.2 Updates:

a. Periodically, Everyware or other licensors of the Terminal Device Software may require or provide future updates at their discretion. Unless specified otherwise by Everyware, all updates are mandatory. The terms of this License apply to all updates, unless a separate license accompanies an update, in which case the terms of that license will apply.

b. The Terminal Device Software may periodically check for updates from Everyware. These updates may automatically download and install onto your Everyware Terminal product. Everyware reserves the right to push updates directly to Everyware Terminal products, including through its SDK or API. If an update is not automatically downloaded or installed, Everyware will notify you and provide instructions for manual installation. Upon receiving notice of a required update, you must implement it by the specified date or within 30 days if no date is provided. Failure to do so may result in improper functioning of your Everyware Terminal products. Everyware is not obligated to provide services or support for products with outdated versions of the Terminal Device Software.

c. Everyware may take necessary measures, at its discretion, in the event that You refuse or fail to implement an update, including suspending services as well as imposing fees and costs onto You.

2.3 Availability: The Terminal Device Software and Services may not be available in all languages and are provided in English only for use in the United States of America. The software provided with a specific Everyware Terminal product may not work on other models. Updates may not include all previous features or new features released for newer models.

3. Services

The Terminal Device Software allows access to Everyware's payment processing and related services ("Services"). To use these Services, you need internet access, an Everyware account, and agreement to additional terms and conditions, including payment of fees to Everyware. ("Everyware Services Agreement"). Unless otherwise agreed in writing by Everyware, the Everyware Services Agreement will govern these Services.

4. Permitted License Uses

4.1 License: Unless otherwise allowed by a separate agreement between you and Everyware, subject to the terms and conditions of this License, Everyware grants you a limited, non-exclusive, non-transferable (other than as allowed in this License), non-sublicensable license to (a) use the Terminal Device Software on a single Everyware Terminal product that you own or control; and (b) reproduce the Terminal Device Software with all notices intact for backup purposes only.

4.2 Exclusions: This License does not allow you (and you agree not) to (a) use or run the Terminal Device Software on more than one Everyware Terminal product at a time; (b) use or run the Terminal Device Software on any product other than the Everyware Terminal product model for which the Terminal Device Software is designated by Everyware; (c) use or run the Terminal Device Software in any way other than in accordance with the applicable documentation; (c) distribute or make the Terminal Device Software available over a network where it could be used by multiple devices at the same time; or (e) enable any others to do (a)-(d).

4.3 Reservation of Rights: Everyware and its licensors maintain ownership of the Terminal Device Software, including all related intellectual property rights. Everyware and its licensors reserve all rights not explicitly granted to you in this License. The Terminal Device Software is licensed to you by Everyware for use under the terms of this License exclusively; it is not sold. This License does not transfer ownership rights of any kind to you.

5. Restrictions

5.1 Compliance with Law: You agree to use the Terminal Device Software and the related Services in compliance with all applicable laws, including local laws of the State in which you reside or in which you access or use the Terminal Device Software and Services. Your compliance with all laws, regulations, and banking guidelines (where applicable) expressly include your affirmative responsibility to satisfy all AML, KYC, and OFAC due diligence obligations that pertain to Your end-users and type of business for which You are using the Terminals.

5.2 Modifications and Reverse Engineering: Except to the extent that the following restriction is not permitted under applicable law, you must not (and you must not enable others to) decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of all or any part of the Terminal Device Software, any services provided by the Terminal Device Software, or any of the Services. You agree not to remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Terminal Device Software. You expressly agree that no other software or updates shall be installed by You onto the Everyware Terminal. Any attempt to install other software shall result constitute a material breach of this Agreement and shall authorize Everyware to immediately terminate any/all services to You at the sole discretion of Everyware.

5.3 Transfer: You must not (and you must not enable others to) rent, lease, lend, sell, share, redistribute or sublicense the Terminal Device Software (unless expressly permitted under this License or otherwise by Everyware in writing.

6. Suspension; Termination

This License is effective until terminated. Everyware may at any time, without notice to you, suspend your ability to use the Terminal Device Software if Everyware reasonably believes you have failed to comply with this License. Your rights under this License will terminate automatically or otherwise not be effective (without any prior notice from Everyware) if (a) your agreement with Everyware for Services terminates (in whole or in relevant part); or (b) you fail to comply with any term of this License, which non-compliance is not remedied within 30 days after notice from Everyware. Upon the termination of this License, you must stop all use of the Terminal Device Software. Sections 4.4, 5, 6, 7, 8, 9, 10, and 11 of this License survive termination. Everyware reserves the right to terminate or suspend, at its sole discretion, services and/or your ability to use the Everyware Terminal and/or software and related services in the event that You fail satisfy for more than 35 days the fees and costs owed to Everyware.

7. Warranty; Replacements and Repairs

Everyware provides a limited warranty for Everyware Terminal products. This warranty covers defects in materials and workmanship under normal use for a period of one year from the date of original purchase. If a defect arises during the warranty period, Everyware will, at its discretion, repair the Everyware Terminal product using new or refurbished parts, or replace the Everyware Terminal product with a new or refurbished Everyware Terminal product. Any replacement product will be warranted for the remainder of the original warranty period. To initiate a warranty claim, contact Everyware's customer support department at clientsupport@everyware.com You may be required to provide proof of purchase and return the defective product. This warranty does not cover damage caused by accident, misuse, abuse, unauthorized modification, or improper storage. It also does not cover normal wear and tear or consumable parts. The warranty does not provide any coverage for any disruption of service, loss of profit, loss, or other consequential damage that may arise (directly or indirectly) from the defective Everyware Terminal product. If your Everyware Terminal product requires repair outside the warranty period, Everyware may offer repair services for a fee. Contact customer support for more information on repair options and costs. Please refer to the warranty documentation provided with your Everyware Terminal Product for full details of the warranty coverage and terms.

8. Disclaimer of Warranties

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EVERYWARE TERMINAL PRODUCTS, TERMINAL DEVICE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND EVERYWARE AND EVERYWARE’S LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE EVERYWARE TERMINAL PRODUCTS, TERMINAL DEVICE SOFTWARE AND SERVICES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EVERYWARE AND EVERYWARE’S LICENSORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE EVERYWARE TERMINAL PRODUCTS, TERMINAL DEVICE SOFTWARE, OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE EVERYWARE TERMINAL PRODUCTS, TERMINAL DEVICE SOFTWARE, AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE EVERYWARE TERMINAL PRODUCTS, TERMINAL DEVICE SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE EVERYWARE TERMINAL PRODUCTS, TERMINAL DEVICE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES. Some jurisdictions do not allow the exclusion of implied warranties or limitations on certain statutory rights, so some or all of the above exclusion and limitations may not apply to you.

9. Limitation of Liability

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL EVERYWARE OR ITS AFFILIATES, AGENTS, OR PRINCIPALS BE LIABLE FOR PERSONAL INJURY, LOST PROFITS, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE EVERYWARE TERMINAL PRODUCTS, TERMINAL DEVICE SOFTWARE AND SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF EVERYWARE HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL EVERYWARE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY YOU TO EVERYWARE FOR THE SERVICES DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO YOUR CLAIM FOR DAMAGES. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the exclusion or limitation of liability for personal injury, or of incidental or consequential damages, so part or all of this limitation may not apply to you.

10. Export Control

The Terminal Device Software is intended for use only within the United States and may not be exported. You are not permitted to use or export the Terminal Device Software except as authorized by United States law and the laws of the jurisdiction(s) where the software was obtained. Specifically, you may not export or re-export the Terminal Device Software to countries under U.S. embargo or listed on restricted party lists. By using the Terminal Device Software, you confirm that you are not located in any restricted countries and are not listed on any restricted party lists. You also agree not to use the Terminal Device Software for any unlawful purposes, including the development or production of prohibited weapons.

11. General

11.1 Governing Law; Jurisdiction; Venue:

a. United States of Americas For Everyware Terminal products shipped to a location within the United States of America, the Terminal Device Software installed on them will be governed by the laws of the State of Texas, without considering rules governing the choice of law. The parties agree to the exclusive jurisdiction and venue of the federal and state courts located at Travis County, Texas, regarding any claims or proceedings related to this License. Both you and Everyware agree not to initiate or pursue any claims or proceedings in courts other than small claims court or arbitration as per the Arbitration Agreement. It is a condition of contract that You agree and accept the Jury Trial Waiver and Arbitration Agreement. Additionally, both parties waive any defenses related to lack of personal jurisdiction and forum non-conveniens.

11.2 Assignment: Subject to Section 5.3, you may not assign this License, or any rights or licenses granted in this License, without Everyware’s prior written consent. If you wish to make an assignment, please contact Everyware. Everyware may assign this License without your consent or any other restriction. If Everyware assigns this License, Everyware will provide reasonable notice to you.

11.3 No Agency: Nothing in this License serves to establish a partnership, joint venture, or other agency relationship between you and Everyware. Everyware and you are independent contractors. You will have no authority to enter into any agreement on Everyware’s behalf or in Everyware’s name or otherwise bind Everyware to any agreement or obligation.

11.4 Notices: You agree that Everyware can provide notices regarding the Terminal Device Software or this License to you through the Everyware website or through the Everyware Dashboard (accessible within portal.everyware.com), or by mailing notices to the email or physical addresses identified in your Everyware account. You agree that electronic delivery of a notice has the same legal effect as if Everyware provided you with a physical copy. Notice will be deemed received by you within 24 hours after the notice is posted to the Everyware website or the Everyware Dashboard located within portal.everyware.com, emailed to you or delivered to your physical address, as applicable.

11.5 Miscellaneous: In case any part of this License is found unenforceable, the remaining provisions still apply, and both parties retain all legal rights. This License constitutes our final agreement, superseding any prior arrangements, and may be amended by Everyware with notice to you.