Terms and Conditions

Introduction

This is a summary of the key terms and conditions applicable to the Complete Solution and apply from 5th September 2022 as between EposNow LLC, The Chase Plaza, 121-189 S. Orange Avenue, FL 32801 (“Epos Now”, “we”, “Us”) and You.

These terms and conditions take precedence over the terms and conditions on our website and the pricing set out within them.

Our main terms and conditions can be accessed from our website at link and still apply where no specific provision is made within these terms and conditions.

We have separate Terms and Conditions for the use of Epos Now Payments, which you will be asked to accept if your proposition is inclusive of this service. Pricing set out in these terms and conditions takes precedence to any sums set out in the Epos Now Payments terms and conditions.

These terms and conditions are reflective of a business-to-business relationship between us and you.

THESE TERMS & CONDITIONS SET OUT THE TERMS ON WHICH YOU SHALL BE BOUND IF YOU PURCHASE PRODUCTS AND/OR SERVICES FROM EPOS NOW. PLEASE READ THESE TERMS & CONDITIONS CAREFULLY AS THEY SHALL GOVERN OUR RELATIONSHIP WITH YOU

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS

1. Our propositions

1.1 We currently offer 2 different propositions to our customers as of 5th September 2022. These are: Basic Monthly (monthly payment) and Plus Monthly (monthly payment). Each of these propositions will in turn also vary in pricing depending on your add ons and whether you choose to use Epos Now Payments. Further information and pricing is set out in Appendix 1.

1.2 These propositions are for the provision of hardware and software and payment solutions. You can upgrade at any time between each of the propositions.

1.3 Details of our Support are set out in Appendix 2.

2. Hardware

2.1 All 2 of our propositions provide you with hardware for your use during the period when you have a continuing software contract with us.

2.2 For those propositions with an upfront payment, legal title to the hardware will pass to you upon the upfront payment being made.

2.3 For those propositions where there is no up-front payment by you, legal title to the hardware remains with us. At the end of your agreement with us the hardware must be returned to us. We will provide you with suitable labels for this purpose.

2.4 The hardware provided to you in relation to all our propositions is at a discounted price. The full value of the hardware in the Plus Plan is $2,000.00 and $1,500.00 for the Basic (the “Hardware Cost”). You agree that this represents a fair and reasonable valuation of the hardware when new. Where any hardware is not returned to us within 60 days of the due date, Epos Now may invoice you the Hardware Cost.

3. Term and termination

3.1 The propositions which are described as having a monthly rolling period can be terminated by you upon giving us one calendar month’s written notice, to expire at the end of a calendar month.

3.2 The propositions which are for a fixed period continue until the last day of the fixed period. You can give us written notice at any time before that date that you do not wish the agreement to continue beyond, however no notice can have the effect of terminating before the last day of the fixed period. If no notice is given by you, on the expiry of the fixed term the agreement shall continue as month-by-month agreement which can be terminated as in clause 3.1.

3.2 If you wish to terminate before the end of a fixed period, you will be responsible for paying a termination fee being a sum representing the aggregate of the remaining monthly payments falling due before the end of the fixed period. The sum is due immediately and we will apply a discount on payment being received of 3.5%.

3.4 Unless stated otherwise herein, no cancellation or variation of an order by you shall be effective unless it is made in writing and accepted in writing by an authorized officer of Epos Now. Epos Now reserves the right to refuse to accept such cancellation or variations or to accept cancellation or variation only subject to such conditions as it considers are warranted according to the circumstances.

3.5 Without limiting any other rights or remedies, either party (“Terminating Party”) may terminate this Agreement with immediate effect by providing written notice to the other party (“Defaulting Party”) on or at any time after the occurrence of any of the events specified below:

    3.5.1 a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 14 days after receipt of notice in writing from the Terminating Party requiring the 

    Defaulting Party to do so; or

    3.5.2 a Party, being a legal entity ceases to carry on its business and is dissolved by formal insolvency proceedings, or

    3.5.3 the Defaulting Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

3.6 Epos Now may terminate this Agreement with immediate effect if it reasonably believes that you have infringed or will infringe Epos Now’s rights or the rights of a third party.

3.7 If this Agreement terminates for any reason, notwithstanding any other provision, Epos Now shall have no obligation to refund you and all charges payable by you to Epos Now under this Agreement will become due and payable immediately. This clause is without prejudice to any right by Epos Now to claim for interest or any other right under this Agreement.

3.8 Your data stored within the Epos Now System shall be available for you to download for a period of 30 days from the effective date of termination. After this period, your data shall not be recoverable by or for you and may be deleted by Epos Now.

3.9 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect

4. Pricing

4.1 Current Pricing for all our propositions is set out in Appendix 1.

4.2 We may vary the monthly pricing upon giving you one calendar months’ notice in writing.

4.3 In the event that you are on a fixed term contract and a price increase (or the aggregate of any increases over a rolling 12-month period) is greater than 2% above the current level of inflation set out in the US Consumer Price Index at the date of notice, then you may terminate this agreement upon giving us one calendar months’ notice.

4.4 All sums saved where clearly stated to the contrary are exclusive of state and federal sales taxes.

5. Epos Now Payments and pricing

5.1 Epos Now Payments are provided by you through a facilitating bank. The facilitating bank is Adyen and its details are provided through the onboarding process with the bank, when you will be required to accept their terms of use.

5.2 The pricing to you of our Plus propositions depends upon whether you activate, then use and continue to use Epos Now Payments and process a minimum level of transactions. The minimum level of transactions is per rolling 45-day period either (i) at least 75 per cent of your card processing or (ii) process card payments to a minimum of $2,500 (“the Minimum Transaction Level”).

5.3 If you do not activate Epos Now Payments and meet and continue to meet the Minimum Transaction Level, Epos Now may by notice in writing to you vary your plan to a Basic Plan whereupon the applicable pricing in Appendix 1 will take effect.

6. Failure to make payments

6.1 If you should fail to make any payments due to Epos Now and they are outstanding for more than 28 days after falling due, Epos Now may through notice in writing demand that you to pay any remaining fees due to the end of your agreement and the Hardware Cost as set out in clause 2.3.

6.2 For fixed term propositions, the Hardware Cost shall be discounted by 4% for each remaining month.

6.3 Epos Now may assign any debt owed by you to a third party organization.

6.4 Epos Now reserves the right to claim interest on unpaid sums at the rate of 8 percent per annum.

7. Choosing a Product and Services from Epos Now

7.1 Epos Now shall provide information about its Products and Services to help inform your basis of purchase and, if requested by you, Epos Now may provide a full demo of its Software on a free of charge basis.

7.2 Notwithstanding clause 7.1, it is your sole responsibility to ensure that the Product(s) and/or Services you are purchasing meet your requirements.

7.3 Upon your request, Epos Now will promptly provide a written quotation for any Product(s) and/or Services. This quotation will be a guideline price and does not form the basis of any contract between you and Epos Now.

7.4 Any advice or recommendation given by Epos Now or its representatives to you regarding the Services or the storage, application or use of the Products which is not confirmed in writing by Epos Now is followed or acted upon at your own risk, and accordingly Epos Now shall not be liable for any such advice or recommendation which is not so confirmed in writing.

7.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice, website or other document or information issued by Epos Now shall be subject to correction without any liability on the part of Epos Now.

7.6 You will assume the risk for the Products once they have been delivered to the delivery address specified in your order. Risk in the Products will only transfer back to Epos Now upon its physical receipt of the Products in the event that they are eligible to be returned in accordance with this Agreement.

8. Your responsibilities

8.1 You will be responsible for installing the hardware (unless otherwise agreed in writing with Epos Now) and will keep the hardware in the environmental conditions recommended by Epos Now and ensure that the external surfaces, cables and fittings of the hardware are kept in good, clean condition.

8.2 You will ensure that the hardware is only used by properly trained staff in accordance with Epos Now’s instructions from time to time. You will ensure that only personnel authorized by Epos Now adjust, modify, configure, maintain, repair, replace or remove any part of the hardware.

8.2 You will maintain adequate records of the use, maintenance and malfunction of the hardware and will provide Epos Now with such information and assistance concerning the hardware, its application, use, location and environment as Epos Now may reasonably require to enable it to carry out any support.

8.4 You will immediately notify Epos Now if there is any failure of the hardware or the System and will allow Epos Now full and free access to the hardware and all documentation, software, materials and services necessary for the provision of support. You will ensure that relevant trained and experienced staff are available when required by Epos Now to provide Epos Now with information required to diagnose and/or repair the issue.

8.5 It is your sole responsibility to regularly operate and verify a proper back-up routine, maintaining all back-up copies in a secure environment.

8.6 You undertake to put and keep in place adequate security measures and up-to-date firewalls to protect the Hardware, Software and Systems from any viruses, harmful code or unauthorized access. Epos Now shall not be responsible for any unauthorized access to the System by means of hacking, any unauthorized access of the hardware with intent to commit or facilitate the commission of an offense or any unauthorized modification of the hardware by a third party.

8.7 You are responsible for ensuring that the login password to the Epos Now Systems remains secure and confidential. You should update their password regularly and ‘remember me’ type functions should not be used on publicly available or shared computers.

8.8 You are responsible for transactions between you and your own customers (“End Customer”). Epos Now is not a party to your transactions and assumes no liability or responsibility for your products, services or offerings. Epos Now is not your bank, agent, or

trustee. Any payment dispute must be resolved between you and the End Customer.

WITHOUT LIMITING SECTION 12 (LIMITATION OF LIABILITIES) BELOW, EPOS NOW MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ANY DISPUTES, CHARGEBACKS, OVERCHARGES, DELAYED PAYMENTS, INSUFFICIENT FUNDS, EXPIRED CARDS, CIRCUMSTANCES BEYOND OUR CONTROL (INCLUDING WITHOUT LIMITATION POWER OUTAGES, SERVICE INTERRUPTIONS OR OTHERWISE) OR OTHER ISSUES RELATING TO TRANSACTIONS MADE THROUGH EPOS NOW PRODUCTS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. Internet / Network Requirements

9.1 Epos Now’s Products require a reliable and robust connection to the internet / local network to take advantage of all of the online features and benefits. It is your responsibility to ensure that you have an appropriate internet / local network connection in place prior to installation of the Software and to also ensure that the internet connection is maintained correctly and includes an up-to-date firewall. The recommended internet speeds are a minimum 7Mbps download speed and 0.6Mbps upload speed to support up to four till devices. Larger locations/installations will need higher internet speeds as appropriate to the size of installation and business. This speed requirement does not include any additional internet usage required over and above the Epos Now System such as staff or guest networks or other business requirements. Internet speeds and consistencies can be checked by using internet speed test websites or by contacting the applicable internet service provider.

9.2 You must provide a separate physical network or a separate V-LAN for Epos Now systems. This must not be shared with other devices, particularly those that cause high volume, high congestion or unpredictable network loads including (but not limited to) guest networks and music or video streaming devices.

9.3 You are solely responsible for any connection charges, line rental charges and call charges in relation to any Products.

9.4 Whilst Epos Now representatives may provide advice and an indication of the suitability of your internet / local network connection, it remains your sole responsibility to ensure you have a suitable internet / local network connection both before and after an order is placed. Epos Now is not responsible for any slow responses to its Systems, including where this is caused by your poor internet / local network connection.

9.5 Provision of Local Area Network (LAN) infrastructure (e.g. cabling, network switches, WAN router) is the responsibility of you and should be appropriate to the size of business and criticality of the operation.

9.6 Where the System is to be used over wifi (e.g. tablets/mobile devices):

        9.6.1 You are responsible for the setup, configuration and management of both the wifi infrastructure and your devices. This includes ensuring wifi coverage in required areas and ensuring network dropouts due to wifi roaming are minimized; and

        9.6.2 you must acknowledge that wifi is not as robust as a wired network and network dropouts can occur due to wifi coverage, access point roaming, tablet sleep modes as well as other environmental factors. This is not unique to Epos Now Systems and should be considered when selecting a wifi solution.

9.7 Epos Now Systems are designed to work offline, but where no network connection (LAN or WAN) is available or the network connection is unreliable, some functionality is reduced.

9.8 Where customer devices are used offline for long periods, you must ensure that such devices are regularly (at least every 7 days) connected to the internet to ensure data is synchronized with its servers. All till devices must regularly (at least every 7 days) perform ‘End of Day/Close Till’ operations to ensure that the local data store can be archived to the servers.

10. Delivery of Hardware

10.1 Whilst Epos Now takes reasonable care to ensure the hardware packaging prevents any damage to the hardware in transit, it is your responsibility to check the hardware before you accept the hardware at the time of delivery.

10.2 It is your responsibility to document, and notify Epos Now of, any defects in the cosmetic condition of the Hardware within 24 hours of receiving the Hardware.

10.3 Provided clause 10.2 has been complied with, in the rare occasion that the hardware is faulty or damaged on arrival, Epos Now will provide you with replacement hardware.

10.4 Whilst Epos Now shall use reasonable endeavors to deliver the hardware by the date specified in the order, Epos Now shall not be liable for the delay in delivery from any cause whatsoever and howsoever arising and time shall not be of the essence for delivery.

10.5 All deliveries must be signed for by you or your authorized representatives. Epos Now’s third party courier may notify you the timeframe when you should expect the delivery by email and/or text message. It is your responsibility to provide Epos Now with the correct address, email and mobile number to benefit from this service.

10.6 It is your responsibility to have an appropriate and authorized person available to sign for the delivery of the Hardware. Epos Now is not responsible for any deliveries that cannot be made due to an authorized person not being available to receive the hardware, or its courier not having access to the delivery location

11. Use of personal data and sharing information

11.1 Epos Now has robust data protection policies and procedures and a link to our Privacy Notice is here.

11.2 For the purposes of credit checking, direct marketing, know your customer checking, data verification, debtor tracing and other lawful business due diligence purposes, Epos Now uses a third-party organization. Epos Now has in place suitable terms and conditions with such third party organizations to protect your personal information.

11.3 General Obligations. Each party will ensure that in the performance of its obligations under this Agreement it will at all times comply with all applicable Data Protection Laws and any other applicable privacy laws and regulations.

11.4 Data Specification: You must provide Epos Now with a document setting out the (a) subject matter and duration of any processing to be undertaken by Epos Now; (b) the nature and purpose of the processing; and (c) the type of Personal Data and the categories of data subject relevant to this Agreement.

11.5 Data Controller. You as our customer acknowledge and agree that you will be the Data Controller under this Agreement and will be responsible for adequately addressing the use of cookies and data protection obligations in your end-customer / Customer Terms & Conditions and policies. As Epos Now does not have any control over your own data protection notices, policies and Terms & Conditions, you will indemnify and keep Epos Now and its Affiliates indemnified against all losses, costs, and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Epos Now arising out of or in connection with any claim in respect of: (a) a breach of this section; (b) any liability arising whatsoever in respect of the cookies on, or the capture of Personal Data through your website(s); and (c) the consent of data subjects for the exportation of any Personal Data.

11.6 Data Processor. Epos Now acknowledges and agrees that it will be the Data Processor under this Agreement and that it shall: (a) keep all Personal Data it receives, stores and collects from you strictly confidential, and not disclose any Personal Data to third parties; (b) not use the Personal Data for any purpose other than to perform its obligations under this Agreement; (c) ensure that all Personal Data it receives, stores and collects from you is processed in accordance with this Agreement or as otherwise instructed in writing from time to time by you and Epos Now shall not process the Personal Data for any other purpose, unless required by law to which Epos Now is subject, in which case Epos Now shall to the extent permitted by law inform of that legal requirement prior to responding to the request; (d) promptly carry out any written request requiring Epos Now to amend, transfer or delete the Personal Data or any part of your Personal Data made by you during this Agreement; and (e) notify you without undue delay or in any case within 48 hours upon Epos Now or any sub-processor becoming aware of a breach affecting Personal data and at this time providing

you with all sufficient information required to meet any obligation to notify the relevant data protection authority or inform affected individuals under applicable Data Protection Laws.

11.7 Assistance. Epos Now agrees to assist you with all subject access requests which may be received from an end-customer in a prompt timeframe (at you cost) and ensure that appropriate technical and organizational measures are in place to enable you to meet obligations to those requesting access to Personal Data held by Epos Now. Upon request, Epos Now shall provide you with reasonably requested information within a reasonable timeframe to demonstrate its compliance with this clause. Epos Now shall assist you in relation to any data impact assessments and/or any prior consultation with the relevant data protection authority, provided that Epos Now shall be entitled to charge a reasonable fee for such assistance.

11.8 Data Transfers. Epos Now may transfer Personal Data to other countries (i) where it is necessary in order to fulfill the terms of any contract which you have with Epos Now or (ii) in order to arrange provision of services to you (such as those from a credit card company). However, Epos Now will only transfer such data as follows; (a) within the EU/EEA (b) to countries as recognized by the EU as having data-compliant laws through an “adequacy decision” (c) by “restricted transfer” or (d) to other Epos Now group entities by use of standard contractual clauses as approved by the European Commission.

11.9 Return of Data: Upon the termination or expiry of this Agreement for any reason, Epos Now shall return all Personal Data to you as requested in writing, provided that this shall not prevent Epos Now from retaining a copy to meet its legal or regulatory obligations.

11.10 Sub-Processors. You hereby agree that Epos Now may appoint any of its sub-contractors as sub-processors without requiring further consent. Such sub-contractors are deemed to be approved under this clause and you may request a list of such sub-processors from time to time.

11.12 Safeguards. Taking into account the state of the art, the costs of implementation, and the nature, scope, context and purpose of processing as well as the varying risks to rights and freedoms of natural persons, the parties warrant that for the duration of this Agreement they will implement administrative, technical and physical safeguards sufficient to ensure the security and confidentiality, and protect against the unauthorized or accidental destruction, loss, alteration, use, or disclosure, of Personal Data and other records and information of the end-customers or employees and to protect against anticipated threats or hazards to the integrity of such information and records.

11.13 You acknowledge and agree to the processing by Epos Now of all of your transactional and sales data, which may include ‘Personal Data’ (as defined by applicable Data Protection Laws) for all purposes connected with this Agreement.

11.14 You acknowledge that any data transmitted over the Internet or through any other form of transmission including by telephony or other electronic means cannot be guaranteed to be free from the risk of interception even if transmitted in encrypted form.

11.15 Epos Now cannot guarantee the recovery of your data where this is deleted by you (or Epos Now at your request).

12. Liability

12.1 This clause sets out the liability of each party.

12.2 All warranties, conditions and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

12.3 Nothing in this Agreement limits or excludes the liability of either party for death or personal injury which results from negligence or for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party. Further, the limitation of liability provisions do not apply to refunds and chargebacks caused by you through your use of Epos Now Payments.

12.4 Subject to clause 12.3 and excluding any provisions in this Agreement where an indemnity is provided by either party:

        12.4.1 neither party will be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, pure economic loss, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

         12.4.2 Epos Now’s liability to you in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with this Agreement will be limited to the price paid or payable for the

          relevant Products and/or Services provided to you by Epos Now giving rise to such liability.

12.5 EPOS NOW PRODUCTS ARE NOT INTENDED TO PROVIDE PROFESSIONAL ACCOUNTING, TAX OR OTHER ADVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EPOS NOW EXPRESSLY DISCLAIMS ANY WARRANTY THAT USE OF THE PRODUCT SHALL ENSURE YOUR COMPLIANCE WITH ANY ACCOUNTING STANDARDS OR LEGAL OR REGULATORY OBLIGATIONS OR THAT THE RESULTS OF THE PRODUCT SHALL BE ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THERE IS NO WARRANTY THAT THE PRODUCT SHALL BE ERROR FREE, THAT ACCESS SHALL BE CONTINUOUS OR UNINTERRUPTED, THAT ANY INFORMATION PROVIDED OR USED WITH THE PRODUCT SHALL BE SECURE, ACCURATE, COMPLETE OR TIMELY, OR THAT ANY CUSTOMER DATA SHALL BE PRESERVED OR MAINTAINED WITHOUT LOSS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EPOS NOW SHALL NOT BE LIABLE FOR ANY PRODUCT FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF EPOS NOW. YOU MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW

13. Indemnity

13.1 You shall indemnify and keep Epos Now and its officers, employees, consultants, agents and sub-contractors indemnified, on demand, against all losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Epos Now arising out of or in connection with any claim against Epos Now in relation to or arising out of your actions (including the actions of those granted access by you) including:

        13.1.1 your content or data on the Epos Now System:

         13.1.2 infringing a third party’s Intellectual Property Rights;

         13.1.2 being inaccurate or incomplete ; and/or

         13.1.3 being defamatory, offensive, in breach of privacy or data protection laws or otherwise being in breach of any civil Tort or criminal statute.

          13.1.4 Use of the Products in a manner which causes loss, harm or damage to Epos Now or to any third party.

14. Complaints Procedure

14.1 Epos Now endeavors to ensure that all Customers are satisfied with their purchase, however, where problems arise you commit to following the complaints procedure in this clause.

14.2 If you are not entirely satisfied with the Products and/or Services, your first action should be to contact the Epos Now support team. Contact details are available at www.eposnow.com/us/contact-us.

14.3 If the issue has not been satisfactorily resolved, you should then make a written complaint either by email to customerrelations@eposnow.com or by post to the address at the top of this Agreement.

14.4 Written complaints should include full details of the situation and the nature of your complaint. Additionally, you should ensure that you provide the best contact details to reach you on.

14.5 Epos Now will respond to the initial written complaint within two Working Days, confirming that Epos Now has received your complaint and advising which Epos Now manager will be managing the resolution.

14.6 The assigned manager will endeavor to resolve the complaint as quickly as possible, working to understand all aspects and come up with a proposed resolution where a fault is identified.

14.7 Once the proposed resolution is understood, the assigned manager will write to you documenting the resolution and rationale behind the decision.

14.8 Should you still not be happy with the resolution provided, you should contact the assigned manager and notify them that it wishes to escalate the complaint further. No claim will be valid unless you firstly follow the above process.

14.9 All sales are bound by the terms of this Agreement and Epos Now asks that you read the full Agreement before raising a complaint. Please note that whilst your statutory rights are not affected, this is a business-to-business transaction.

14.10 PLEASE NOTE: Epos Now does not tolerate any abusive, offensive or inappropriate behavior or intimidation towards its staff. In the event that you do not treat Epos Now’s staff in a courteous and professional manner at all times, Epos Now reserves the right to cease all correspondence and provide this as evidence of non-cooperation and bad faith in any subsequent legal proceedings. Epos Now may terminate any service it provides to you in the event that you engage in any abusive, offensive or inappropriate behavior towards staff.

15. Intellectual Property Rights

15.1 All Intellectual Property Rights and all other rights in the Products shall vest and remain vested in Epos Now.

15.2 All Customer data (including but not limited to transactional data, sales data, product data and stock data) are owned by you.

15.3 You hereby provide Epos Now with a non-exclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license to use your transactional data, sales data, product data and stock data that is generated through the Epos Now System for the enhancement of existing services and the provision of new services for Epos Now, its customers and partner organizations. For the avoidance of doubt, any personally identifiable information will be anonymized and/or aggregated.

15.4 You acknowledge that you will not acquire any Intellectual Property Rights in the hardware and that will have no rights in or to the Intellectual Property Rights in the Software other than as set out in the EULA at Appendix 3.

15.5 You agree not to remove deface or cover up any name plates, logos or trade marks appearing on the Products.

15.6 The Intellectual Property Rights in the Products supplied by Epos Now may be owned by third party suppliers. Where Epos Now notifies you that this is the case, you acknowledge that its use of rights in third party materials may be governed by, and will be conditional upon, you agreeing to an end-user licence (or sub-licence) of such rights directly with the relevant licensor.

15.7 PLEASE NOTE: Your historic stock data, which is stored by Epos Now expressly for use in the Stock History report in the back office, will only be stored for one year and it will be deleted at the end of this period. Epos Now recommends that you export this data from the stock history report from time to time to avoid any loss of data

16. Confidentiality

16.1 A party (“Receiving Party”) will keep in strict confidence all technical or commercial knowhow, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed (either orally, in writing or by demonstration) to the Receiving Party by the other party (“Disclosing Party”) or its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain (“Confidential Information”).

16.2 In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree:

         16.2.1 to treat the Confidential Information in confidence and to use it only for the purpose of discharging the Receiving Party’s obligations under this Agreement;

         16.2.2 not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents

         and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement and provided that such officers, employees, consultants, agents and sub-contractors are

         made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement); and

        16.2.3 to treat the Confidential Information with the same degree of care and with sufficient protection from unauthorized disclosure as the Receiving Party uses to maintain its own confidential or proprietary information.

16.3 Nothing in this Agreement will prevent the Receiving Party from using or disclosing any Confidential Information which:

       16.3.1 is in or comes into the public domain in any way without breach of this Agreement by the Receiving Party or any person or entity to whom it makes disclosure;

       16.3.2 the Receiving Party can show was: (i) in its possession or known to it by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of

        confidence; or (ii) to have been independently developed by the Receiving Party without reference to the Confidential Information;

        16.3.3 the Receiving Party obtains or has available from a source other than the Disclosing Party without breach by the Receiving Party or such source of any obligation of confidentiality or non-use;

        16.3.4 is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or

         16.3.5 is required by law to be released (e.g., by a court order), provided that, when permitted by the applicable law, the Disclosing Party is given as much prior written notice as possible of such request.

16.4 This clause 16 shall survive termination of this Agreement, however arising

17. Force Majeure

17.1 Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances which could not reasonably be contemplated at the time of entering into this Agreement and which are beyond the parties’ reasonable control (including, without limitation, an act of God, strikes, lock-outs or other industrial disputes (involving the workforce of Epos Now), failure of a utility service or transport network, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers or sub-contractors). If a force majeure event causes failure to perform obligations for a continuous period of 30 days or more, either party may terminate this Agreement immediately by providing the other party with written notice.

17.2 Epos Now withholds the right to delay order deliveries by up to 30 days in the event of force majeure

18. Dispute resolution and class action waiver

18.1 READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM EPOS NOW. For any dispute with Epos Now, you agree to first contact us at customerrelations@eposnow.com and attempt to resolve the dispute with us informally as above. In the unlikely event that Epos Now has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration shall be conducted in Orange County, Florida, unless you and Epos Now agree otherwise. If you are using the Product for commercial purposes, each party shall be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Product for noncommercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and

your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 18 shall be deemed as preventing Epos Now from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.

18.2 Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE PRODUCT FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR SIMILAR, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND EPOS NOW ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND TO THE EXTENT PERMITTED BY APPLICABLE LAW.

19. Export control

 19.1 Export Control. The products are subject to U.S. export control laws and regulations and may be subject to foreign export or import laws or regulations. You agree to comply strictly with all such laws and regulations and not to use or transfer the Product for any use relating to nuclear, chemical, or biological weapons or missile technology. You also represent and warrant that you are not located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and that you are not listed on any U.S. government list of prohibited or restricted parties.

20. Government users

 20.1 Government Users. The Product includes commercial computer software and commercial computer software documentation. If the user or licensee of the Product is an agency, department, or other entity of the United States Government, the use, duplication,

reproduction, release, modification, disclosure, or transfer of the Product or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by these Terms in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defence Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Product was developed fully at private expense. All other use is prohibited.

21. Miscellaneous

21.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

21.2 It may be necessary for Epos Now to update this Agreement and its terms from time to time. If you continue to use Epos Now’s services after Epos Now has informed you of any updated version of this Agreement, you will be deemed to have accepted these changes and they will be incorporated into this Agreement.

21.3 Save as permitted by the specific provisions of this Agreement, no variation of this Agreement will be effective unless it is in writing and signed by both parties.

21.4 You are responsible for informing Epos Now of any changes to contact details.

21.5 Please note that Epos Now may record phone calls that we receive from you for proving the terms of any agreement made, training purposes and quality control.

21.6 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.

21.7 If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

21.8 This Agreement is governed by the laws of the State of Florida, USA without reference to its choice of law provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The Federal and State courts located in the county of Orange County, Florida shall be the exclusive venue for any claim or dispute between the parties (save for patent law appeals) and (save for Arbitration process) the parties hereby consent to the personal jurisdiction of those courts for such purposes.

APPENDIX 1

Our Basic bundle offers you the Epos Now Till, Cash Drawer and Printer with Till and Back Office software to run your operations. The hardware comes with accidental damage repairs (one per year) and next day hardware replacement in case of an in-warranty hardware issue. Training, implementation and support are also offered as standard.

Our Plus proposition gives you fully integrated Epos Now Payments and a suitable payment

terminal.

Both bundles have a single option – zero upfront and a monthly cost

  Proposition: Pricing

 Plus Monthly: $0 upfront / $99 recurring / Payments @ 2.6% + 10c

 Basic Upfront: $0 upfront / $129 recurring / 3rd party payments

 If you do not use Epos Now Payments or meet the criteria within clause 5.2, you’ll be downgraded to the Basic package.

Via our sales process you can apply add-ons to your bundle including KDS, extra devices and extra locations.

All prices exclude VAT.

APPENDIX 2

Support is offered by our US based team in the following hours:

Support Type:

Weekdays: 09:00 to 18:00

Weekend: 09:00 to 17:00 on Saturdays only

Premium: 24/7

APPENDIX 3

Epos Now Software End User License Agreement (“EULA”)

PLEASE READ THIS EULA CAREFULLY BEFORE USING ANY EPOS NOW SOFTWARE. BY USING ANY EPOS NOW SOFTWARE YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT USE THE SOFTWARE.

1. Application of this EULA
2.  This EULA incorporates and supplements the Epos Now Terms & Conditions (General Terms and Conditions of Trading with Epos Now) (“Agreement”) as updated from time to time. In the event of conflict between the terms of this EULA and the Epos

          Now Terms & Conditions, the Epos Now Terms & Conditions will prevail.

1. General Use
2.  The Software, Systems, interfaces, content, fonts, documentation and any data that is provided by Epos Now to the Customer under its Software license (as may be updated or replaced by Software updates or System restore software provided by

           Epos Now whether in read only memory, on any other media or in any other form) are licensed to the Customer (for the number of licenses purchased only) on a nonexclusive, revocable, non-transferable basis for the Customer to make reasonable use of the Epos Now System under the terms of this Agreement and not for any other purpose.

1.  Epos Now retains ownership of the Software and reserves all rights not expressly granted to the Customer
2.  Epos Now, at its discretion, may make available future updates to the Software for the Customer’s Epos System.
3.  The Customer shall carry out regular back-ups to removable media stored separately from the supported items and carry out other normal system housekeeping routines (disc defragging etc). Epos Now shall not be liable for any loss or damage sustained or incurred by the Customer or any third party through loss or corruption of data resulting from any maintenance activity by Epos Now required or performed under this Agreement. Epos Now will use reasonable endeavors to rectify any such loss of data or programs, but reserves the right to charge for such services.
4.  The Customer remains solely responsible for implementing adequate and industry standard virus protection measures to all parts of the Epos Now System.
5.  Any additional software which is downloaded by the Customer, which is not already pre-installed on the System, is solely done at the Customer’s risk.
6.  The Customer is responsible for keeping the Software up-to-date and must accept automatic updates to the Software at all times. The Customer is responsible for keeping the operating system up-to-date with available patches and upgrades at all times.
7.  From time to time Epos Now will deprecate older operating system versions, supporting Software or Hardware minimum specifications. Epos Now will use reasonable endeavors to give 60 days’ notice in such circumstances and after this period the Customer must move away from any such deprecated Hardware, Software and/or operating systems at the Customer’s expense.

1. Permitted Software license uses and restrictions
2.  Each Software license allows the Customer to use the Software on the specific point of sale terminals requested by the Customer at the point of purchase.
3.  Each license does not allow the Software to exist on more than one point of sale terminal, and the Customer must not make the Software available over a network where it could be used by multiple devices or multiple computers at the same time,

            unless otherwise agreed in writing by Epos Now.

1.  This EULA does not grant the Customer any rights to use Epos Now proprietary interfaces or any other Intellectual Property Rights in the design, development, manufacture, licensing or distribution of third party devices and accessories for use

            with the Epos Now System. Except as and only to the extent expressly permitted in this EULA or by applicable law, the Customer must not copy, decompile, reverse engineer, disassemble, and attempt to derive the source code of, decrypt, modify, or create derivative works of the Software (or any updates), the Epos Now Systems, or any part thereof. Any attempt to do so is a violation of the rights of Epos Now. If the Customer breaches this restriction, it may be subject to prosecution and damages.

1.  The Customer may not rent, lease, lend, charge, redistribute or sub-license the Epos Now Software or Software updates.
2. Termination
3.  This EULA is effective until terminated in accordance with the Agreement. The Customer’s rights under this EULA will terminate automatically without notice from Epos Now if the Customer fails to comply with any term(s) of this EULA. Upon the

             termination of this EULA the Customer’s Software will be restricted

The following section applies to any API integrations with the Customer’s web platform or systems.

API TERMS OF USE

1. Licensed Uses and Restrictions.
2.  “API” means the software set of functions and procedures that allow the creation of third-party applications to access the features or data of Epos Now’s System.
3.  The Epos Now APIs are owned by Epos Now and are licensed to the Customer on a worldwide (except as limited below), non- exclusive, non-transferable basis on the terms set forth herein.

 

1.  These API Terms of Use define the legal use of Epos Now APIs, including all updates, revisions, substitutions, and any copies of the Epos Now APIs made by or for the Customer.
2.  Epos Now Customer data (including but not limited to transaction data, sales data, product data and stock data) are owned by the Customer and not by Epos Now.
3.  The Customer’s right to use the Epos Now APIs shall terminate immediately if Epos Now disables the Customer’s access to the Epos Now APIs for any reason.
4.  The Customer shall:
5.  comply with any requirements or restrictions imposed on usage of client data by their respective owners. Although the Epos Now APIs can be used to provide the Customer with access to client data, neither Epos Now's provision of the Epos Now APIs to the Customer nor the Customer’s use of the Epos Now APIs override the Customer’s data privacy requirements and restrictions, which may include "all rights reserved" notices, data protection laws, Creative Commons licenses or other terms and conditions that may be agreed upon between the Customer and its clients. In all cases, the Customer is solely responsible for making use of its client data in compliance with the applicable client's requirements and/or restrictions;
6.  remove from the Epos Now System any client data or other information that the applicable client asks the Customer to remove within 24 hours;
7.  disclose through a privacy policy or otherwise displayed in the footer of each page of the Customer’s applications, how it collects, uses, stores and discloses data collected from visitors and clients, including, where applicable, that third parties may serve content and collect information directly from visitors and may place or recognize cookies on visitors' browsers;
8.  provide accurate contact details for the Customer to Epos Now upon request; and

                         

1.  provide an accurate statement of intended use of the applicable API to Epos Now upon request, and once provided restrict the Customer’s activities to stay within this statement.
2.  The Customer shall not:

                      

1.  Use the Epos Now APIs for any application that replicates or attempts to replace the essential user experience of EposNowHQ.com or any Epos Nowapp or website;
2.  attempt to cloak or conceal the Customer’s identity or the application's identity when requesting authorisation to use Epos Now APIs;
3.  cache or store any content other than for reasonable periods in order to provide the service the Customer is providing to its clients;
4.  use the Epos Now APIs for any application that constitutes, promotes or is used in connection with spyware, adware, or any other malicious program code;
5.  use the Epos Now APIs in any manner or for any purpose that violates any law or regulation within the UK and the location of any of its own servers, or any rights of any person, including but not limited to Intellectual Property

              Rights, rights of privacy, or rights of personality;

1.  use the Epos Now APIs in a manner that adversely impacts the stability of Epos Now.com servers or adversely impacts the behavior of other applications using the Epos Now APIs. Further, Epos Now reserves the right to rate limit or block applications that make a large number of calls to an API that are not primarily in response to direct user actions;
2.  sell, lease, or sublicense the Epos Now APIs or access thereto or derive revenues from the use or provision of the Epos Now APIs, whether for direct commercial or monetary gain or otherwise, without prior written agreement from Epos Now; or

                      

1.  serve, or allow third parties to serve, advertising materials to clients, or to collect data for the purposes of marketing or advertising.
2. Ownership and Relationship of Parties.
3.  Epos Now owns all rights, title, and interest in and to the Epos Now APIs. Epos Now's rights apply to the Epos Now APIs and all output and executables of the Epos Now APIs, excluding any software components developed by the Customer which do not themselves incorporate the Epos Now APIs or any output or executables of the Epos Now APIs.
4.  The Customer agrees to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions provided by Epos Now to the Customer.
5.  These terms do not grant the Customer any right, title, or interest in any Intellectual Property Rights owned or licensed by Epos Now, including (but not limited to) the Epos Now APIs and Epos Now trademarks.
6. API Support
7.  Epos Now may elect to provide the Customer with support or modifications for the Epos Now APIs (collectively, "API Support"), in its sole discretion, and may terminate such API Support at any time without providing notice to the Customer.
8.  Epos Now may change, suspend, or discontinue any aspect of the Epos Now APIs at any time, including the availability of any Epos Now APIs.
9.  Epos Now may also impose limits on certain features and services or restrict the Customer’s access to parts or all of the Epos Now APIs or the Epos Now website without notice or liability.
10. Payment
11.  Epos Now retains the right to charge for use of the APIs on a recurring basis upon notifying the Customer in advance. Epos Now may increase, reduce or remove this charge at any time. Where an increase is made, a notice period of no less than 7 calendar days will be provided to the Customer by Epos Now
12.  Where payment is not received, Epos Now reserves the right to exercise its rights for late payment detailed in the Agreement.
13. Disclaimer of Warranties
14.  Some of the Epos Now APIs may be experimental and not tested in any manner. Epos Now does not represent or warrant that any Epos Now APIs are free of inaccuracies, errors, bugs, or interruptions, or are reliable, accurate, complete, or otherwise valid.
15.  The Epos Now APIs are provided ‘as is’ with no warranty, express or implied, of any kind. Epos Now expressly disclaims any and all warranties and conditions, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, availability, security, title and/or non-infringement.
16.  The Customer’s use of the Epos Now APIs is at the Customer’s own discretion and risk, and the Customer will be solely responsible for any damage that results from the use of any Epos Now APIs including, but not limited to, any damage to the Customer’s computer system or loss of data.
17.  It remains the Customer’s responsibility to verify the integrity and accuracy of any data access, edited or supplied through an API.