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 Novaux Inc. a Delaware Corporation (“d/b/a Sabor POS”) and the entity designated by the registration data provided herewith (“Licensee”) and applies to Licensee’s use of software downloaded from Sabor POS and Licensee’s use of services provided by Sabor POS (“Sabor POS Services”).

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

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

Sabor POS shall retain the ownership of the provided copy of Sabor POS software and the documentation provided therewith (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, Sabor POS 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 Sabor POS 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 Sabor POS is able to license such Third Party Rights.

Free Account License

A free account includes access to one Sabor POS Register and Sabor POS HQ license for one location, one employee and up to $5,000 in total sales of any tender type or combination of tender types per month. Sabor POS, 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. Sabor POS 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 Sabor POS 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 Sabor POS’s prior written approval, (e) resell, rent or otherwise provide access to the Sabor POS services to a third party or (f) take any action in an attempt to obtain any other Sabor POS user’s data, cause malfunction, crash, tamper with or otherwise impair the Sabor POS website and related applications, and their services. Any rights not expressly granted hereunder are reserved by Sabor POS.

No rights in the Licensed Software or Sabor POS 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 here. 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 Sabor POS Privacy Policy located here. Sabor POS agrees that as between Licensee and Sabor POS, (a) Licensee’s data maintained by Licensee on the Sabor POS website and related applications belongs to Licensee; and (b) Sabor POS acts as data processor (as defined in the Data Protection Act 1998 (“DPA”)). Each party hereto undertakes to comply with the DPA in relation to its use of such data. Licensee hereby grants permission to Sabor POS for Sabor POS to use the data for providing Licensee the Sabor POS account, improving and maintaining the Sabor POS 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 Sabor POS 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 Sabor POS’s systems, (ii) Licensee agrees that Sabor POS can delete such data in the event the Licensee exercises the Sabor POS opt-out mechanism and (iii) any use of such data by Licensee shall comply with Sabor POS’s privacy policy. Licensee shall indemnify and hold harmless Sabor POS and the Sabor POS Parties from any claim brought against Sabor POS alleging that personal information stored on Sabor POS was improperly used where such use was by Licensee while such information was stored on Sabor POS 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 Sabor POS 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 Sabor POS IN RELATION TO THIRD PARTY RIGHTS. ANY USE OF THE LICENSED SOFTWARE AND Sabor POS SERVICES IS AT LICENSEE’S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL Sabor POS OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS (“Sabor POS 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 Sabor POS SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, Sabor POS 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 Sabor POS 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. Sabor POS MAKES NO WARRANTY OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE LICENSED SOFTWARE OR Sabor POS 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, Sabor POS 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. Sabor POS 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 Sabor POS 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 Sabor POS SERVICES AND THAT Sabor POS 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 FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNREASONABLE, Sabor POS’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 Sabor POS 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 longer purchase commitment period. Sabor POS, 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 Sabor POS Services for any reason at any time. Licensee’s duties to (i) pay amounts due and payable, (ii) refrain from any kind of reverse engineering or other act in violation of this agreement or (iii) indemnify Sabor POS and the Sabor POS 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 Sabor POS shall terminate the Licensee’s access to their Sabor POS account, the account itself and the data residing therein. LICENSEE MUST EXPORT THEIR ACCOUNT DATA PRIOR TO TERMINATION OF THE Sabor POS SERVICE. Sabor POS SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION. In addition, Sabor POS reserves the right and Licensee acknowledges such right for Sabor POS to terminate service of Licensee’s account on 30 days’ notice if Sabor POS 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 Sabor POS Services and its processes are the confidential information of Sabor POS and agrees not to disclose such software or such operation 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 Sabor POS shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond.

From time to time, Sabor POS will have Beta Software Programs (“Restaurant Beta”) 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 Sabor POS 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) Sabor POS 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 Sabor POS employees, agents, contractors or other representatives regarding Sabor POS 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 Sabor POS services, Licensee agrees to the following contractual provisions:

Licensee hereby authorizes Sabor POS to bind Licensee to the end-user license agreement proffered by its payment gateway provider(s) for the purpose of establishing Licensee as a customer of its payment gateway provider(s).

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.

Licensee is liable for all fees charged to Sabor POS 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 Sabor POS 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 Sabor POS 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 Sabor POS 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 Sabor POS HARMLESS FROM ANY CLAIM, (INCLUDING ANY ASSOCIATED DAMAGES, COSTS AND REASONABLE ATTORNEYS FEES INCURRED BY Sabor POS OR ITS AFFILIATES) BROUGHT AGAINST Sabor POS 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 Sabor POS, NOR ANY Sabor POS 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 Sabor POS 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 Sabor POS. 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 Sabor POS AND THE Sabor POS PARTIES ARISING FROM USE OF ITS PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS.

Amendments

Sabor POS reserves the right to amend these Terms and Conditions at any time in Sabor POS’s sole discretion.

Representation

The Licensee represents and warrants that it has the due right and power to enter into this Agreement, entering 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 Sabor POS is accurate in all respects.

Choice of Law and Forum

This Agreement shall be construed under the laws of the State of New York, U.S.A. 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 New York County, New York, U.S.A. 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.

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