POYNT CO.

# REGISTERED POYNT PLATFORM DEVELOPER AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND POYNT CO. ("POYNT") STATING THE TERMS THAT GOVERN YOUR CONTINUED INVOLVEMENT AS A REGISTERED POYNT PLATFORM DEVELOPER. BY AGREEING TO THIS REGISTEDED POYNT PLATFORM DEVELOPER AGREEMENT (“AGREEMENT”) YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU WILL BE UNABLE TO BECOME A REGISTERED POYNT PLATFORM DEVELOPER.

  1. Relationship With Poynt; Poynt Account Management. You understand and agree that by becoming a Registered Poynt Platform Developer, there is no legal partnership or agency relationship created between you and Poynt. Neither you nor Poynt is a partner, an agent or has any authority to bind the other and you agree not to represent otherwise. Unless otherwise agreed or permitted by Poynt in writing, you cannot share or transfer any benefits you receive from Poynt in connection with being a Registered Poynt Platform Developer. You are responsible for maintaining the confidentiality of your Poynt account and password and for any activity in connection with your account. The Poynt account and password you use to login as a Registered Poynt Platform Developer cannot be shared in any way or with any one.
  2. Developer Benefits. As a Registered Poynt Platform Developer, Poynt may offer to provide you with a variety of services (“Services”), as described more fully herein and on the Registered Poynt Platform Developer portal (“Portal”), exclusively for your own use (except as otherwise permitted in the last two sentences of Section 1) in connection with your involvement as a Registered Poynt Platform Developer. Services may include, but not be limited to the offering of any content or materials displayed on the Portal (“Content”). Poynt has the option to change, suspend or discontinue providing the Services, Portal and Content to you at any time, and may impose limits on certain features and materials offered or restrict your access to parts or all of materials without notice or liability.
  3. Restrictions. You agree not to exploit the Portal, any Services or Content provided to you as a Registered Poynt Platform Developer, in any unauthorized way, including but not limited to using the Portal, Services, or Content other than for authorized purposes. Copyright and other intellectual property laws protect the Portal and Content provided to you, and you agree to abide by and maintain all notices, license information, and restrictions contained therein. Unless expressly permitted herein or otherwise permitted in an additional agreement with Poynt, you may not change, publish, network, rent, lease, loan, transmit, sell, participate in the transfer or sale of, reproduce, create derivative works based on, redistribute, perform, display, or in any way exploit any of the Portal, Content or Services in whole or in part. You may not decompile, reverse engineer, disassemble, attempt to derive the source code of any software or security components of the Services, Portal, or of the Content (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by any licensing terms accompanying the foregoing). Use of the Portal, Content or Services to violate, interfere with, or circumvent the security of any computer network, software, passwords, encryption codes, technological protection measures, or to otherwise engage in any kind of illegal activity, or to enable others to do so, is expressly prohibited. Poynt retains ownership of all its rights in the Portal, Content and Services, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Poynt intellectual property.
  4. Confidentiality. You agree that any Poynt pre-release hardware and / or software (including any related documentation and/or materials) provided to you as a Registered Poynt Platform Developer (“Pre-Release Materials”) will be considered and referred to as “Poynt Confidential Information”. Notwithstanding the foregoing, Poynt Confidential Information will not include information which: (i) is now or hereafter becomes generally known or available to the public, through no act or omission on the part of the receiving party; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
  5. Nondisclosure and Nonuse of Poynt Confidential Information. Unless otherwise expressly agreed or permitted in writing by Poynt, you agree not to disclose, publish, or disseminate any Poynt Confidential Information to anyone other than to other Registered Poynt Platform Developers who are employees and contractors working for the same entity as you and then only to the extent that Poynt does not otherwise prohibit such disclosure. Except for your authorized purposes as a Registered Poynt Platform Developer or as otherwise expressly agreed or permitted by Poynt in writing, you agree not to use Poynt Confidential Information in any way, including, without limitation, for your own or any third party’s benefit without the prior written approval of an authorized representative of Poynt in each instance. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Poynt Confidential Information. You acknowledge that unauthorized disclosure or use of Poynt Confidential Information could cause irreparable harm and significant injury to Poynt that may be difficult to ascertain. Accordingly, you agree that Poynt will have the right to seek immediate injunctive relief to enforce your obligations under this Agreement in addition to any other rights and remedies it may have. If you are required by law, regulation or pursuant to the valid binding order of a court of competent jurisdiction to disclose Poynt Confidential Information, you may make such disclosure, but only if you have notified Poynt before making such disclosure and have used commercially reasonable efforts to limit the disclosure and to seek confidential, protective treatment of such information. A disclosure pursuant to the previous sentence will not relieve you of your obligations to hold such information as Poynt Confidential Information.
  6. Confidential Pre-Release Materials License and Restrictions. If Poynt provides you with Pre-Release Materials, then subject to your compliance with the terms and conditions of this Agreement, Poynt hereby grants you a nonexclusive, nontransferable, right and license to use the Pre-Release Materials only for the limited purposes set forth in this Section 6; provided however that if such Pre-Release Materials are accompanied by a separate license agreement, you agree that the license agreement accompanying such materials in addition to Sections 4 and 5 of this Agreement shall govern your use of the Pre-Release Materials. You further agree that in the event of any inconsistency between Section 4 and 5 of this Agreement and the confidentiality restrictions in the license agreement, the license agreement shall govern. You agree not to use the Pre-Release Materials for any purpose other than testing and/or development by you of a product designed to operate in combination with the same operating system or on the same hardware for which the Pre-Release Materials are designed. This Agreement does not grant you any right or license to incorporate or make use of any Poynt intellectual property (including for example and without limitation, trade secrets, patents, copyrights, trademarks and industrial designs) in any product. Except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Poynt intellectual property. You agree not to decompile, reverse engineer, disassemble, or otherwise reduce the Pre-Release Materials to a human-perceivable form, and you will not modify, network, rent, lease, transmit, sell, or loan the Pre-Release Materials in whole or in part.
  7. Amendment; Communication. Poynt reserves the right, at its discretion, to modify this Agreement, including any rules and policies at any time. You will be responsible for reviewing and becoming familiar with any such modifications (including new terms, updates, revisions, supplements, modifications, and additional rules, policies, terms and conditions) (“Additional Terms”) communicated to you by Poynt. All Additional Terms are hereby incorporated into this Agreement by this reference and your continued use of the Portal will indicate your acceptance of any Additional Terms. In addition, Poynt may be sending communications to you from time to time. Such communications may be in the form of phone calls and/or emails and may include, but not be limited to, marketing materials, technical information, and updates and/or changes regarding your participation as a Registered Poynt Platform Developer. By agreeing to this Agreement, you consent that Poynt may provide you with such communications.
  8. Term and Termination. Poynt may terminate or suspend you as a Registered Poynt Platform Developer at any time in Poynt’s sole discretion. If Poynt terminates you as a Registered Poynt Platform Developer, Poynt reserves the right to deny your reapplication at any time in Poynt’s sole discretion. You may terminate your participation as a Registered Poynt Platform Developer at any time, for any reason, by notifying Poynt in writing of your intent to do so. Upon any termination or, at Poynt’s discretion, suspension, all rights and licenses granted to you by Poynt will cease, including your right to access the Portal, and you agree to destroy any and all Poynt Confidential Information that is in your possession or control. At Poynt’s request, you agree to provide certification of such destruction to Poynt. No refund or partial refund of any fees paid hereunder or any other fees will be made for any reason. Following termination of this Agreement, Sections 1, 3-5, 10-15 shall continue to bind the parties.
  9. Poynt Independent Development. Nothing in this Agreement will impair Poynt’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that you may develop, produce, market, or distribute. In the absence of a separate written agreement to the contrary, Poynt will be free to use any information, suggestions or recommendations you provide to Poynt pursuant to this Agreement for any purpose, subject to any applicable patents or copyrights.
  10. Use Of Poynt Trademarks, Logos, etc. You agree not to use the marks “Poynt,” the Poynt Logo, “PoyntOS”, “Poynt Smart Terminal,” or any other marks belonging or licensed to Poynt in any way except as expressly authorized in writing by Poynt in each instance. You agree that all goodwill arising out of your authorized use of Poynt’s marks shall inure to the benefit of and belong to Poynt.
  11. No Warranty. POYNT (AND ITS VENDORS AND SUPPLIERS) GIVE NOR MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, OTHER THAN THAT EXPRESSLY SET FORTH HEREIN. NO REPRESENTATIVE OF POYNT IS AUTHORIZED TO GIVE OR MAKE ANY OTHER REPRESENTATION OR WARRANTY OR MODIFY THIS WARRANTY IN ANY WAY EXCEPT IN A WRITTEN AMENDMENT OF THESE TERMS SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF POYNT THAT MAKES SPECIFIC REFERENCE TO THESE TERMS AND THE SPECIFIC QUOTE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, POYNT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
  12. Disclaimer of Liability. IN NO EVENT SHALL POYNT (OR ITS SUPPLIERS OR VENDORS) HAVE ANY LIABILITY TO CUSTOMER, ARISING OUT OF OR IN CONNECTION WITH THE PRE-SALE OR USE OF THE PRODUCTS SOLD HEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN AN AMOUNT IN EXCESS OF, AND POYNT’S (AND ITS SUPPLIERS AND VENDORS) AGGREGATE LIABILITY SHALL BE STRICTLY LIMITED TO, AMOUNT(S) ACTUALLY RECEIVED BY POYNT FROM CUSTOMER FOR THE PRODUCTS WHICH GIVE RISE TO POYNT’S LIABILITY. IN NO EVENT SHALL POYNT (OR ITS SUPPLIERS OR VENDORS) HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING IN ANY WAY IN CONNECTION WITH THE PRODUCTS OR THEIR USE, INCLUDING BUT NOT LIMITED TO DAMAGE TO PROPERTY, INJURY TO PERSONS, LOSS OF USE, DATA OR PROFITS, OR DELAYS OR INCONVENIENCE, EVEN IF POYNT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POYNT’S (AND ITS SUPPLIERS’ AND VENDORS’) LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY IN CONNECTION WITH THE SALE OR USE OF PRODUCTS SOLD HEREUNDER, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL BE STRICTLY LIMITED TO POYNT’S (AND ITS SUPPLIERS’ AND VENDORS’)OBLIGATIONS AS SPECIFICALLY AND EXPRESSLY PROVIDED HEREIN. IN NO EVENT SHALL POYNT (OR ITS SUPPLIERS OR VENDORS) HAVE ANY LIABILITY TO CUSTOMER FOR ANY DELAYED PERFORMANCE OR NONPERFORMANCE BY POYNT, WHICH RESULTS, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, FROM ANY CAUSE BEYOND THE REASONABLE CONTROL OF POYNT, AND CUSTOMER'S ORDER WILL BE DEEMED SUSPENDED FOR SO LONG AS ANY SUCH CAUSE PREVENTS OR DELAYS POYNT’S PERFORMANCE. THESE LIMITATIONS SHALL NOT APPLY TO THE LIMITED EXTENT EXPRESSLY PROHIBITED BY APPLICABLE LAW.
  13. Third-Party Notices. Third party software provided by Poynt to you as a Registered Poynt Platform Developer may be accompanied by its own licensing terms, in which case such licensing terms will govern your use of that particular third party software. Mention of third parties and third party products in any materials, advertising, promotions or coupons provided to you as a Registered Poynt Platform Developer is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third party product specifications and descriptions are supplied by the respective vendor or supplier, and Poynt shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.
  14. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law provisions. The parties further submit to and waive any objections to personal jurisdiction of and venue in any of the following forums: U.S. District Court for the Northern District of California, California Superior Court for Santa Clara County, Santa Clara County Municipal Court, or any other forum in Santa Clara County, for any disputes arising out of this Agreement.
  15. Miscellaneous. No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Poynt, and no single waiver will constitute a continuing or subsequent waiver. This Agreement will bind your successors but may not be assigned, in whole or part, by you without the written approval of an authorized representative of Poynt. Any non- conforming assignment shall be null and void. If any provision is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous understandings regarding such subject matter. No addition to or removal or modification of any of the provisions of this Agreement will be binding upon Poynt unless made in writing and signed by an authorized representative of Poynt. The parties hereto confirm that they have requested that this Agreement and all attachments and related documents be drafted in English.
Last Updated: 10/22/2020, 12:06:46 AM