Elo Legal

Elo Pay Link+ Terms & Conditions

These Elo Pay Link+ Terms and Conditions ("Terms") together with the order form or electronic ordering document acceptable to Elo Touch Solutions, Inc. ("Elo") to which these Terms are attached or which reference these Terms (the "Order Form") constitute a legal agreement between Elo and the applicable party identified on the Order Form ("Customer"). These Terms describe the terms and conditions that apply to Customer's purchase and use of the services subscribed to by Customer on the applicable Order Form (each, a "Service"). Elo and Customer is each referred to individually as a "Party" and collectively as the "Parties."

1. General

(a) Order Form; Applicability. These Terms and the Order Form provide general terms applicable to the Services. The specific Services to which Customer subscribes will be as indicated on the applicable Order Form. Some of the Services may be subject to supplemental terms, which may be hosted on Elo's website, attached to or referenced herein, or referenced in the applicable Order Form. Any such supplemental terms constitute a part of these Terms. Certain Services may be subject to a minimum term, as specified on the applicable Order Form or in these Terms. Termination or other deactivation of a Service prior to the end of the minimum term will result in the forfeiture of any fees paid in advance and/or be subject to a charge equal to the fees for the remainder of such minimum term. In the event of a conflict between the Order Form and these Terms, the terms of the Order Form will govern except with respect to Sections 10, 11, 12, 13, and 14 herein. In the event of a conflict, we specify certain sections that cannot be overridden.

(b) Territory. Elo will provide the Services for use in the United States and any countries, regions, or territories identified in the applicable Order Form (the "Territory"). Customer may only use the Products and Services (including any software included with the Services) in the Territory.

(c) Account Information; Set-Up. For Elo to provide the Services, Customer will provide Elo with such information and assistance as Elo may reasonably request. Elo will only provide access to the Services after Customer's account has been approved. Customer will inform Elo promptly of any changes to such information to keep such information true, accurate, current, and complete at all times. Elo will not have any liability for any breach or delay or failure to perform any obligation with respect to the Services that results from untrue, inaccurate, outdated, erroneous, or incomplete information provided to Elo. Customer acknowledges that it is responsible for all activities that occur under Customer's account, and Customer will ensure that all activity conducted under its account complies with these Terms and any other applicable agreements Customer may have in place with Elo.

(d) Accuracy of Data Submitted to Elo. Customer is at all times responsible for the accuracy of any data provided by Customer in connection with Customer's use of the Services, including Device information, Supported Acquiror information, and terminal management information. Customer acknowledges that Customer will not provide Elo any cardholder data, sensitive authentication data, or other personal information of Customer's customers, including such customer's name, address, email address, or phone number.

(e) Compliance with Law; Misuse of Products and Services. Customer must use the Services in compliance with all applicable laws, rules, and regulations in the Territory ("Applicable Laws"), as well as any rules and/or standards imposed by the Payment Card Industry Security Standard Council ("PCI SSC"), including the Payment Card Industry Data Security Standards ("PCI DSS"), or any successor standard, and any card network, financial network, or other applicable standards organization ("Card Network Rules"). Customer may not conduct, attempt to conduct, or solicit a third-party to conduct penetration testing or other vulnerability assessments of the Services without Elo's prior written consent. Customer may not access or use, or attempt to access or use, the Services in a manner intended or with the effect of negatively impacting the performance of the Services. Elo may cancel Customer's orders and disable Customer's access to Services without notice should Customer violate these restrictions.

(f) Third-Party Services. Elo may from time to time enable third-party services, including remote key injection ("RKI") in connection with the Services. Customer acknowledges that by subscribing to a third-party service, Elo will transmit to the service provider such data as is requested by the service provider in connection with its service. Customer represents and warrants that Customer has provided all required notices and has obtained all necessary rights, permissions, and consents necessary for Elo to lawfully transmit such data to the service provider and for Customer to grant any necessary permission or authorization for such transmittal. CUSTOMER ACKNOWLEDGES THAT ELO IS NOT THE DIRECT PROVIDER OF RKI OR ANY OTHER THIRD-PARTY SERVICE MADE AVAILABLE HEREUNDER AND ELO'S ABILITY TO SUPPORT A THIRD-PARTY SERVICE IS SUBJECT TO SUPPORT BEING PROVIDED BY THE THIRD-PARTY SERVICE PROVIDER. ELO DOES NOT MAKE ANY REPRESENTATIONS WITH RESPECT TO, DOES NOT ENDORSE OR GUARANTEE, AND DOES NOT ACCEPT, AND EXPRESSLY DISCLAIMS, ANY RESPONSIBILITY OR LIABILITY FOR RKI OR ANY OTHER THIRD-PARTY SERVICE AND THE ACTS OR OMISSIONS OF ANY THIRD-PARTY SERVICE PROVIDER, INCLUDING WITH RESPECT TO THE COLLECTION, HANDLING, AND PROCESSING OF DATA TRANSMITTED TO SUCH PROVIDER HEREUNDER.

(g) Standard Products and Services; Modification; Discontinuation. Except as otherwise agreed by Elo in an Order Form, Services provided will be Elo's standard, uniform Services for the relevant Territory, and no special or customized versions will be provided. Notwithstanding anything to the contrary herein, Elo may modify any Service from time to time in its discretion, and Elo may discontinue Services in its discretion, provided that, in the event of discontinuation of one of the Services to which Customer has subscribed, Elo will provide Customer with as much notice of such discontinuation as is commercially practicable under the circumstances, but in no event, less than three (3) months' notice.

2. Terms Applicable to Elo Pay Services

(a) Supported Acquirers. Elo will provide Customer with information regarding merchant acquirers that are supported by Elo for use with the respective Services in the Territory (each, a "Supported Acquirer"). The list of Supported Acquirers will change from time to time. For purposes of this Section 2(a), a "merchant acquirer" for any applicable Territory is an acquiring bank or financial institution authorized by one or more payment scheme owners to enable the use of a payment method by accepting transactions from merchants on behalf of the scheme owners, routing the transaction to the applicable scheme owner (or issuing bank, as applicable) and collecting and settling the resulting funds to the applicable merchant.

(b) Designated Acquirers. Customer will notify Elo of the Supported Acquirer(s) with whom Customer desires to establish and maintain a merchant account with for use with the Services (each, a "Designated Acquirer"). Customer acknowledges that a Designated Acquirer may decline to become or remain a Supported Acquirer and Elo reserves the right to terminate its relationship with a Supported Acquirer in its discretion; therefore Elo cannot guarantee that the Services will be usable with such Designated Acquirer. Elo will notify Customer as soon as is commercially practicable should it become aware that a Designated Acquirer will no longer be a Supported Acquirer. Customer's use of particular Products and Services may be subject to the approval and/or on-going authorization of Customer's Designated Acquirer. Customer is responsible for entering into an agreement with Customer's Designated Acquirer and obtaining any necessary approvals and/or authorizations. Elo will cooperate with Customer to validate that Customer's use of the Products and Services meets the Designated Acquirer's generic certification requirements.

(c) Payment Schemes; Compliance with Scheme Rules. Elo will provide Customer with information regarding the payment and card network schemes that are supported for use with the Services (collectively, the "Card Network Schemes"). The specific Card Network Schemes supported for use with the Services are subject to change from time to time and will vary by region. Elo may stop supporting a particular Card Network Scheme in its reasonable discretion, including for such reasons as (i) material changes in the terms imposed by the Card Network Scheme, (ii) malperformance by the relevant Card Network Scheme, (iii) material increases in the costs or risks of Elo supporting the Card Network Scheme, and (iv) if cessation is necessary for Elo to comply with applicable law, rules, and regulations. Elo will use commercially reasonable efforts to provide at least one month notice of any cessation of support for a Card Network Scheme; Customer acknowledges that the circumstances resulting in cessation of support may prevent Elo from providing such notice. Customer's acceptance of transactions via a Card Network Scheme is subject to the by-laws, rules, operating regulations, waivers, and guidelines issued or promulgated by the applicable Card Network Scheme, as amended or supplemented from time to time by the applicable Card Network Scheme.

(d) Transaction Disputes. Customer is responsible for resolving any disputes between Customer and Customer's customers involving or relating to the authorization of transactions processed via the Services and Customer's products or services.

3. Terms Applicable to Devices and Device-Based Services

(a) Procuring Devices. Any Elo hardware or other products purchased by Customer for use with the Service ("Products") will be subject to Elo's Standard Terms of Sale or other written agreements applicable to such Product. Elo offers payment devices ("Devices") for sale typically through authorized distributors or resellers.

(b) Device-Based Services. With respect to any Services that are provided for use on or with a Device, Elo currently supports such Services on specific Elo Device models, which Elo designates from time to time in its discretion. Customer may only use the Services with supported Device models. Elo reserves the right to cease supporting a Device model at any time. Once Elo no longer supports a Device model, Customer may no longer activate or maintain such Devices on applicable Services. Elo will use commercially reasonable efforts to make available alternative supported Device models for use with the applicable Service for such time as Elo continues offering such Service.

(c) Service Terms. With respect to Services that are quoted on a per-Device basis, Elo will provide the Service for each such Device commencing on the earlier of (i) the commencement date set forth in the Order Form and (ii) the activation of the Device for use with the applicable Service, and ending upon the earlier of (A) the date that Elo has completed the deactivation process for such Device pursuant to a Device deactivation request made by Merchant in accordance with Elo's standard deactivation procedures, or (B) the expiration of the Initial Term (defined below) or renewal term in accordance with Section 4 below and the applicable Order Form (the "Service Term"). Upon termination of the Service Term for such Device, Customer must cease using the applicable Services with such Device. Customer may request that Elo reactivate Services on a Device; if reactivated by Elo, the Service Term will recommence upon such reactivation and continue until terminated as set forth above. Notwithstanding anything to the contrary herein, if Customer continues to use any Services after termination of the Service Term, then without limiting any other remedies hereunder or available to Elo at law or in equity, Customer will be responsible for all fees associated with such Services for such use. Termination of a Service Term or other deactivation of any Product or Service prior to the end of any minimum Service Term shall be subject to a charge equal to all fees owed for the remainder of the minimum Service Term, which charge shall be due and payable in full thirty days from the date on which Elo issues its invoice for such charge.

4. Termination

(a) Termination by Elo. Elo may elect to terminate the provisioning of Services hereunder (in whole or in part) (i) upon sixty days' written notice at any time following the initial term set forth in the applicable Order Form (the "Initial Term"), (ii) upon sixty days' written notice in the event of a material breach of these Terms by Customer, which breach is not cured within such notice period, (iii) immediately upon written notice in the event Customer is the subject of a dissolution, reorganization, insolvency, or bankruptcy action, or (iv) in the event that a circumstance exists that requires the termination of these Terms to comply with Applicable Laws or Card Network Rules, in which case such termination may be effected immediately or within such period of time as the requirements permit, in each case, as determined by Elo. Other termination rights may be provided elsewhere in these Terms (including any supplement terms).

(b) Suspension of Services by Elo. Elo may elect to suspend the provisioning of Services hereunder (in whole or in part) (i) immediately upon notice in the event of a material breach of these Terms by Customer, (ii) immediately in the event any Designated Acquirer terminates its services to Customer or to Elo, or (iii) thirty days following Customer's receipt of notice of non-payment.

(c) Termination by Customer. Customer may elect to terminate these Terms (i) upon thirty days' written notice at any time following the Initial Term, (ii) upon thirty days' written notice in the event of a material breach of these Terms by Elo, which breach is not cured or commenced within such notice period, or (iii) immediately upon written notice in the event Elo is the subject of a dissolution, reorganization, insolvency, or bankruptcy action.

(d) Effect of Termination. Upon termination of the provisioning of the Services, (i) Customer will no longer have the right to place orders for any Services, (ii) any revocable licenses granted hereunder shall be deemed revoked, and (iii) all Service Terms shall terminate. Termination or suspension of a Service prior to the end of the Initial Term will be subject to a charge equal to the fees for the remainder of the Initial Term. Termination of a Service prior to the end of a renewal term will be subject to a charge equal to the fees for the remainder of the month in which Services are terminated. Sections 7(e), 11, 12, 13, 14 and 15 shall survive termination of these Terms indefinitely.

5. Fees; Payment

(a) Fees; Taxes. All payments will be made in U.S. dollars, unless another currency is designated in the Order Form. Fee charges are payable in advance annually. Invoiced charges are due net thirty (30) days from the invoice date. Elo may accept the following payment methods for the Service: (1) a payment method accepted by Elo, including ACH and wire transfer to an Elo designated bank account, (2) payment by check upon prior approval of Elo and issuance of an invoice by Elo, or (3) if approved by Elo, payment by credit card (each, an "Accepted Payment Method"). Customer agrees that: (i) Customer will fulfill Customer's obligation to pay the fees by the date on which payment is due; (ii) any payment information Customer provides is true and accurate; (iii) Customer is authorized to use the Acceptable Payment Method; (iv) Elo or its subcontractor(s) has permission to retain the payment information, including all debit and credit card information, submitted by Customer and Customer's issuing bank or the applicable payment network, if credit card payment has been approved by Elo; and (v) Elo is authorized to charge Customer the fees for the Service using the Accepted Payment Method and the information Customer provides that is stored in Customer's Account as of the applicable date for payment. Customer expressly guarantees payment to Elo and recognizes that Elo's rights to collect payment includes any obligation Customer may have to pay any Taxes or delivery charges described as being applicable to the Service. Elo will issue its invoice on or shortly after the date on which the Service is purchased and on any periodic basis as agreed in the applicable Order Form; any failure by Elo to provide an invoice will not affect Customer's obligation to pay charges as agreed in the Order Form. Any invoice that remains unpaid for thirty (30) days after the invoice date is considered delinquent. Any wire transfer fees or other similar fees incurred on account of the payment method selected by Customer are Customer's responsibility and may not be deducted from the amount due Elo. In addition, Customer will be responsible for any credit card chargeback fees as well as any reasonable collection costs Elo may incur due to Customer's failure to pay on a timely basis. If Customer purchases a Service that renews automatically, such as monthly, quarterly, or annually, Customer acknowledges that Elo may process Customer's Accepted Payment Method on an annual or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the commencement of Customer's Initial Term, as applicable. In addition, Customer acknowledges that Elo has its permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms Elo may retain in the future) information regarding Customer's purchase and Customer's submitted payment information in order to process Customer's purchase. If Customer's purchased Subscription began on a day not contained in a subsequent month (e.g., Customer's Service began on January 30, and there is no February 30), Elo will process Customer's payment on the last day of such applicable, subsequent month).

(b) Deductions. Customer will pay all Fees without any deduction or withholding for or on account of Tax (a "Tax Deduction"), unless such Tax Deduction is required by applicable law, and Customer will make reasonable efforts to determine whether Elo is entitled under any applicable Tax treaty to a reduction in the rate of, or the elimination of, any such applicable Tax Deduction before making any such Tax Deduction. Customer will promptly notify Elo prior to the due date of the Tax Deduction in order to confirm that there is clarity as to the application of the Tax Deduction. If Customer is required by applicable law to make a Tax Deduction, Customer will apply the reduced rate of withholding, or dispense with withholding, as applicable. Within thirty (30) days, Customer must provide Elo with an official tax receipt or other appropriate documentation to support such payment. Customer and Elo will reasonably collaborate with respect to any audits, disputes, or requests for information related to Taxes, including the provision of all relevant information, documents, and reasonable support, and such obligation will survive the termination of this Agreement.

(c) Failure to Pay. If Customer fails to pay any fees when due hereunder: (i) Elo shall be entitled to charge interest on the overdue payment from the date due until paid at the rate of 1.5% per month, or the maximum rate permissible by law, whichever is less, and to invoice Customer for and/or debit from Customer's Account (as applicable) such amounts in accordance with these Terms; (ii) Elo shall be entitled to withhold and/or disable Customer's access to the Services until all such amounts are paid and Elo has confirmed the accuracy and completeness of Customer's payment details; and (iii) Elo reserves the right to pursue any and all legal remedies to collect the amounts owed by Customer, including any attorneys' fees. Elo shall be entitled to invoice Customer for and/or debit Customer's Account (as applicable) any actual additional expenses incurred by Elo in collection efforts, including any attorneys' fees.

6. Licenses; Restrictions

(a) License to Products and Provision of Services. Any licenses with respect to a Product (including any software Product) are limited solely to such licenses as are expressly set forth in and in the applicable supplemental terms for such Product and are subject to the payment of the corresponding fees.

(b) License to Device Software. Elo may install and include on Devices certain terminal operating systems, firmware, encryption applications, application programming interfaces, libraries, or other software components (collectively, "Device Software"). Unless such Device Software is licensed to Customer pursuant to separate Supplemental Terms, Elo grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to use such Device Software (in object code form only) and any applicable documentation, on the Device on which it was installed by Elo. Device Software licenses cannot be transferred from one Device to another Device; the license granted herein is Device-specific and tied to the specific Device serial number.

(c) Device Software Warranty. Elo warrants that from the date Elo first delivers Device Software to Customer until the earlier of the expiration of the term set forth in the applicable Order Form and the termination of the provision of services in accordance with section 4 herein (the "Device Software Warranty Period"), such Device Software will substantially conform to the documentation specified by Elo for such Device Software. During the Device Software Warranty Period, Elo will use commercially reasonable efforts to correct any non-conformities. Any correction of a non-conformity will not extend the Device Software Warranty Period. Customer's sole and exclusive remedy under this warranty will be limited to correction of the nonconformity, and Elo shall not be obligated to refund the license price nor pay for any labor or other costs associated with the removal of defective software components or the reinstallation of software components. No warranty coverage will be provided for Device Software if (i) Customer fails to notify Elo of the nonconformity within seven days after such nonconformity has become apparent or (ii) the Device Software has been modified by any person not authorized by Elo, damaged or misused by Customer, or was improperly installed by Customer or Customer's designees. Customer must cooperate fully with Elo in carrying out diagnostic and test routines as Elo may require.

(d) Restrictions. Customer shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver, or otherwise transfer the Services, or any component thereof (including, without limitation, any software made available as part of the Products or Services), to any third party, without Elo's prior written consent, in which event Customer shall remain primarily liable for any acts or omissions by such third party. Customer shall not reverse engineer, decompile, disassemble, translate, modify, alter, or create any derivative works based upon the software, or determine or attempt to determine any source code, algorithms, methods, or techniques embodied in any software licensed hereunder. Customer shall not remove or alter any Elo trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Products or Services.

(e) Ownership. Customer acknowledge that the Products and Services (including any related documentation) and any intellectual property rights relating to or residing therein (including any patents, copyrights, trade secrets, trademarks, trade names or mask work rights), including the proprietary electronics, software and technical information of Elo therein (the "Proprietary Materials"), are proprietary products of Elo and that ownership of such shall remain with and inure to Elo. Except for the license rights expressly granted pursuant to any applicable supplemental terms, Customer shall have no right, title, or interest therein. Elo reserves all rights in the Proprietary Materials and any other Elo intellectual property not expressly granted herein.

(f) Government End Users. All software and Services were developed entirely at private expense and are commercial computer software provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in these Terms pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable.

7. Elo Cloud Services; Data Security and Privacy; Merchant IT Environment

(a) Elo's IT Environment. Certain Services are provided by Elo (including through the use of qualified IT vendors) as cloud services involving the storage, processing, or transmittal of data through Elo's IT Environment (an "Elo Cloud Service"). "Elo's IT Environment" means the information technology network and related hardware and software environment controlled and maintained by Elo (or its IT vendor) to store, process, and/or transmit data electronically in the course of Elo's provisioning of the applicable Service, and expressly excludes devices located in a customer's physical and/or information technology environment and any software running on such devices. Elo's IT Environment does not include processor, Internet, network, or POS systems (including non-Elo circuits, VPNs, or data transmission architecture, wherever located), or other systems outside of Elo's control. Customer acknowledges and hereby consents to Elo's cross-border data transfers in connection with the performance of its obligations under these Terms.

(b) Maintenance. Elo (or its IT vendor) conducts routine maintenance to the Elo Cloud Services. Maintenance is generally scheduled during time periods when overall end user online activity is more limited. Elo reserves the right to shut down the Elo Cloud Services with no notice should emergency maintenance become necessary. Elo reserves the right to remove any user from an Elo Cloud Service should Elo determine, in its sole discretion, that a particular Elo Cloud Service has been compromised or in any way used inappropriately. In extreme cases, where a user has compromised the security of a Elo Cloud Service or otherwise acted in a malicious or damaging manner, removal may occur immediately without prior notification.

(c) Security Measures. Elo will cause its IT vendors to implement and maintain no less than commercially reasonable administrative, physical, and technical safeguards for Elo's IT Environment to prevent and detect unauthorized access, destruction, use, modification, or disclosure of any customer data provided by Customer in connection with the Services. These safeguards will include, without limitation: (i) adequate physical security of all premises; (ii) reasonable precautions with respect to the employment of and access given to Elo and its IT vendor's personnel; (iii) an appropriate network security program with reasonable access and data integrity controls, testing and auditing of all controls, and appropriate corrective action and incident response plans; and (iv) industry standard practices for virus and malware protection. However, no security system is impenetrable, and Elo cannot guarantee that unauthorized parties will never be able to defeat its security measures or misuse any data in its possession. Customer provides data to Elo with the understanding that any security measures Elo provides may not be appropriate or adequate for Customer's business.

(d) Merchant IT Environment. Customer is responsible for separately procuring all information technology infrastructure necessary to access and use the Products and Services, including but not limited to the infrastructure necessary to host and operate Customer's websites, mobile applications, order entry systems, and other of Customer's internal business environments (collectively, the "Merchant IT Environment"). Furthermore, Customer is responsible for the security and integrity of the Merchant IT Environment, including (i) obtaining necessary PCI DSS certifications, (ii) on-going compliance with applicable PCI DSS rules, including as reflected in the Visa Cardholder Information Security Program ("CISP"), the MasterCard Site Data Protection Program ("SDP"), American Express Data Security Operating Policy ("DSOP") Discover Network's Information and Security Compliance ("DISC"), and any other Card Network Rules, each as revised and effective at any given time, and (iii) maintaining the security of all data, including cardholder data, sensitive authentication date, and other personal data or information of Customer's customers while processed, stored, or transmitted via the Merchant IT Environment or while otherwise in Customer's possession or control. Elo shall have no obligation to ensure that the Products or Services operate in conjunction with the Merchant IT Environment, including without limitation its specific equipment, software, services, or other products or systems, and Customer shall be responsible for all costs Customer incurs in connection with any modifications Customer elects to make to Customer's own equipment, software, services, or other products or systems.

(e) Collection of Technical Data. Customer acknowledges that Elo may collect and use technical and usage data and other information in connection with Customer's use of the Products and Services, including information about payment transactions, which data is gathered by Elo for data analytics and optimization, to facilitate the provision of Products and Services, to provide updates, support, and other services related to the relevant Products and Services, to improve Elo's Products and Services, and for other lawful purposes.

(f) Store and Forward. Certain Products and Services may offer functionality that enables transaction data to be stored in a Device in the event the Device's connection to the processor host is lost, and to forward the transaction data upon reconnection with the host (commonly known as "Store and Forward" or "SAF" functionality). Customer may, in Customer's discretion, enable SAF functionality and set available parameters for number and value of transactions that may be stored; provided however transactions are subject to final authorization and processing once forwarded. In the event that SAF transaction data stored in a Device is not forwarded to the host for processing as desired, Customer may request that Elo attempt to recover the SAF transactions. Upon such a request, Elo may, in its discretion, use commercially reasonable efforts to recover any SAF transaction data stored in a Device, provided that Elo does not represent or warrant that recovery (in whole or in part) is possible or will be successful. Any SAF recovery efforts by Elo will be chargeable on a time and material basis or at such other prices as may be quoted by Elo from time to time. Elo disclaims, and Customer release Elo from, any liability resulting from Customer's election to enable SAF functionality, any failure of a SAF transaction to process successfully, any issue involving Elo's SAF recovery efforts, or any losses due to any inability to complete a SAF transaction for any reason.

8. Compliance

Customer is responsible for complying with all applicable laws, rules, and regulations in connection with these Terms, the operation of Customer's business, and Customer's use of the Products and Services, including export control laws, the Electronic Funds Transfer Act (including responsibility for any information printed on receipts), the Americans with Disabilities Act, and all applicable anti-corruption and anti-bribery laws, rules, and regulations. Customer acknowledges that Elo does not assume responsibility for Customer's compliance with laws applicable to Customer's operation of Customer's business or Customer's business environment. Customer acknowledges that if Elo reasonably believes that Customer is in breach of this Section, that alone shall be sufficient grounds for suspension of Services, or further action by Elo, including, without limitation, cancellation of any provision or Services or denial of future business, without any liability or obligation to Customer. In addition, Customer will indemnify Elo and its officers, directors, employees, and affiliates for all claims, costs, expenses, damages, charges, penalties, fines, and other losses that arise in connection with any breach by Customer or Customer's owners, officers, directors, employees, subsidiaries, Customer's end customers, partners, subcontractors, agents, or representatives, of this Section.

9. Representations, Warranties, and Covenants

Customer represents, warrants, and covenants as follows:

(a) Due Organization. Customer is duly organized, validly existing, and in good standing under the laws of Customer's jurisdiction of organization and is properly registered to do business in all jurisdictions in which Customer carries on business.

(b) Approvals. Customer has all licenses, regulatory approvals, permits, and powers legally required to conduct Customer's business in each jurisdiction in which Customer conduct business.

(c) Authority. Customer has the authority to execute and perform the obligations required by these Terms, including all power, authority, and legal right to execute, deliver, and to carry out the transactions and obligations contemplated hereby.

(d) No Agency. Customer is entering into these Terms in Customer's own capacity for Customer's own account and is not acting as a nominee or agent of any other third party.

(e) Validity. These Terms constitute a valid and binding obligation, enforceable in accordance with their terms. Customer is not legally or contractually required to obtain any approval or consent from any person or government department as a condition to perform Customer's obligations hereunder.

(f) No Conflicts. The acceptance and consummation of these Terms will not (i) conflict with Customer's certificate of incorporation or by-laws or any other organizational document, (ii) breach any obligations under any contract to which Customer is a party, or (iii) violate Applicable Law or Card Network Rules.

(g) Accuracy; Changes. Customer is responsible for ensuring that all the information disclosed to Elo is true, accurate, and complete. Customer will promptly inform Elo of any action or event of which Customer become aware that has the effect of making inaccurate any of the representations or warranties set forth in these Terms.

10. Warranties

ANY WARRANTIES WITH RESPECT TO DEVICES ARE SET FORTH IN SUPPLEMENTAL TERMS. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN AND IN THE SUPPLEMENTAL TERMS, ALL PRODUCTS AND SERVICES ARE PROVIDED "AS IS." ELO DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ELO DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES, OR ANY COMPONENT THEREOF, WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS OR SERVICES, OR ANY COMPONENT THEREOF, WILL BE UNINTERRUPTED OR ENTIRELY ERROR FREE. CUSTOMER ACKNOWLEDGES THAT UNDER NO CIRCUMSTANCES DOES ELO REPRESENT OR WARRANT THAT ALL ERRORS IN ANY SOFTWARE CAN BE REMEDIED. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM ELO OR FROM ANY OTHER PARTY ABOUT THE PRODUCTS OR SERVICES SHALL CREATE ANY WARRANTY. NOTHING IN THESE TERMS OPERATES TO EXCLUDE, RESTRICT, OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY, OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER LAW WHERE TO DO SO WOULD CONTRAVENE THAT LAW OR CAUSE ANY TERM OF THESE TERMS TO BE VOID.

11. Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) ELO SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR (I) ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (II) LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS, REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR TRANSACTIONS, CHARGE-BACKS, EQUIPMENT PURCHASED OR ACQUIRED BY CUSTOMER OR CUSTOMER'S SUBCONTRACTORS OR AGENTS TO EFFECTUATE THESE TERMS, OR COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, REGARDLESS OF WHETHER SUCH LOSSES ARE DIRECT LOSSES OR INDIRECT LOSSES, IN EACH CASE IN (I) AND (II) RELATING IN ANY MANNER TO THESE TERMS OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER AND WHETHER ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT OR OTHERWISE, EVEN IF ELO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGE; (B) IN ANY CASE, ELO'S ENTIRE LIABILITY RELATING IN ANY MANNER TO THESE TERMS AND ANY PRODUCTS AND SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED TO CUSTOMER'S DIRECT AND DOCUMENTED DAMAGES, AND WHICH LIABILITY WILL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY PAID BY CUSTOMER TO ELO FOR THE SERVICES DURING THE SIX MONTHS PRIOR TO THE CLAIM ARISING (WHICH SHALL NOT INCLUDE ANY FEES PAID BY CUSTOMER WITH RESPECT TO ANY THIRD-PARTY SERVICES); AND (C) ELO SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THESE TERMS OR THE PRODUCTS AND SERVICES PROVIDED HEREUNDER. THE LIMITATIONS ON ELO'S LIABILITY SET FORTH IN CLAUSES "(B)" AND "(C)" OF THIS SECTION SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE, OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY ELO'S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE LIMITATIONS SET FORTH IN THIS SECTION ARE A FUNDAMENTAL PART OF THE BASIS OF ELO'S BARGAIN HEREUNDER, AND ELO WOULD NOT PROVIDE THE PRODUCTS AND SERVICES TO CUSTOMER ABSENT SUCH LIMITATIONS.

12. Indemnification

Customer shall protect, defend, hold harmless, and indemnify Elo, its affiliates, and its and their respective directors, officers, employees, agents, and affiliates from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses of, by or brought by a third party, including, but not limited to, reasonable attorneys' fees and costs (collectively, "Claims") arising out of or relating to: (A) any material breach of Sections 1(d) (Data), Section 8 (Compliance), Section 9 (Representations & Warranties), or Section 13 (Confidentiality); or (B) any violation of Card Network Rules or Applicable Law.

13. Confidentiality

(a) Confidential Information. "Confidential Information" means any and all confidential or proprietary information disclosed by one Party to the other Party, to the extent related to these Terms, the Products and Services made available hereunder, or other products, services or information offered or made available by Elo from time to time, whether such information is in oral, written, graphic or electronic form; provided that (i) if such information is in writing or other tangible form, it is clearly marked as "proprietary" or "confidential" when disclosed to the receiving Party, (ii) if such information is not in tangible form, it is identified as "proprietary" or "confidential" when disclosed, or (iii) such information should be reasonably understood by the receiving Party to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) the disclosing Party expressly agrees in writing is free of any nondisclosure obligations; (ii) at the time of disclosure to the receiving Party was known to the receiving Party (as evidenced by documentation in the receiving Party's possession) free of any nondisclosure obligations; (iii) is independently developed by the receiving Party (as evidenced by documentation in the receiving Party's possession); (iv) is lawfully received by the receiving Party, free of any nondisclosure obligations, from a third party having the right to so furnish such information; or (v) is or becomes generally available to the public without any breach of these Terms or unauthorized disclosure by the receiving Party. Notwithstanding anything to the contrary herein, any pricing or other terms contained in an Order Form shall be deemed to be the Confidential Information of Elo.

(b) Nondisclosure and Nonuse. Each Party receiving Confidential Information shall (i) disclose such Confidential Information to only those directors, officers, employees, subcontractors, and agents of such Party (A) whose duties justify their need to know such information and (B) who have been clearly informed of their obligation to maintain the confidential, proprietary, and/or trade secret status of such Confidential Information; and (ii) use such Confidential Information only for the purposes set forth in these Terms. Each Party receiving Confidential Information shall treat such information as strictly confidential, and shall use the same degree of care to prevent disclosure of such information as such Party uses with respect to its own confidential and proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances. Notwithstanding the foregoing, each Party may disclose Confidential Information to the extent necessary pursuant to applicable federal, state, or local law, regulation, court order, or other legal process, provided the receiving Party has given the disclosing Party prior written notice of such required disclosure and, to the extent reasonably possible, has given the disclosing Party an opportunity to contest such required disclosure at the disclosing Party's expense. Additionally, either Party may retain archival and backup copies of the other Party's Confidential information as may be required by applicable law, pursuant to the receiving Party's document retention policies, or where removal of such Confidential Information is unduly burdensome.

(c) Confidentiality Period. Each Party's obligations under this Section shall continue (i) with respect to Confidential Information that meets the definition of a trade secret under applicable law, until such time as such Confidential Information is no longer a trade secret (other than as a result of a breach of these Terms), and (ii) with respect to all other Confidential Information, until five years after expiration or termination of these Terms.

(d) Termination. Upon termination or expiration of these Terms, each Party shall (i) promptly return all Confidential Information received from the disclosing Party, including all copies thereof and materials derived therefrom, or (ii) at its election, destroy the Confidential Information and, if requested by the disclosing Party, certify in writing that it has complied with the provisions of this clause (ii). Notwithstanding anything to the contrary herein, the receiving Party may retain such Confidential Information or copies thereof (subject to the confidentiality obligations set forth in this Section) to the extent necessary to comply with applicable law and neither Party is required to alter its information systems, data retention, or backup policies or procedures to comply with this Section.

14. Governing Law; Dispute Resolution

(a) Governing Law. This Agreement and each Order Form are governed by and are made under the laws of the State of Texas, U.S.A. The parties acknowledge that the Uniform Computer Information Transaction Act (or any statutory implementation of it) and the United Nations Convention on the International Sale of Goods and/or standard conflict of law rules applicable in Customer's country of origin will not apply with respect to this Agreement or the Services. Subject to the last sentence of this section and except for Customer's payment obligations hereunder, any claim, dispute, or controversy arising out of or relating to this Agreement, or the Services will be resolved by arbitration in accordance with the provisions of the commercial or business rules of the American Arbitration Association (AAA). Such arbitration will be held in Dallas County, Texas. Notwithstanding the foregoing, a party may seek preliminary judicial relief (such as a preliminary injunction) from the state and federal courts located in Dallas County, Texas if, in such party's judgment, such action is necessary to avoid irreparable damage, and such courts will have exclusive jurisdiction and venue over all matters relating to such preliminary relief.

(b) Jury Trial Waiver. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, WHETHER IT RESULTS IN PROCEEDINGS IN ANY COURT IN ANY JURISDICTION OR IN ARBITRATION, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE OR ARBITRATOR WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. To the extent applicable, in the event of any lawsuit between the Parties arising out of or related to these Terms, the Parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.

(c) Class Action Waiver. CUSTOMER MAY NOT PURSUE ANY CLAIM AGAINST ELO AS A CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE ACTION. CLAIMS REGARDING ANY DISPUTE AND REMEDIES SOUGHT AS PART OF A CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL, OR OTHER REPRESENTATIVE ACTION MUST BE BROUGHT ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS.

15. Miscellaneous

(a) Entire Agreement; Severability. Except with respect to any licenses issued pursuant to Section 6, these Terms (inclusive of the applicable Order Form) constitute the entire agreement between Elo and Customer and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, relating to the subject matter hereof and thereof. If any provision of these Terms (including the applicable Order Form) is found by a court of competent jurisdiction to be invalid, the Parties agree that the court should endeavor to give the maximum effect to the Parties' intentions as reflected in the provision, and that the other provisions of these Terms shall remain in full force and effect.

(b) Right to Amend these Terms. Elo reserves the right to change or add to these Terms at any time. Any changes or additions will only apply to Customer's purchase of Products or use of the Services prospectively. Elo will provide notice of any material changes or additions through the applicable Elo portal, via email, or by other means reasonably designed to give Customer notice of such changes or additions.

(c) Assignment. Customer may not assign these Terms, in whole or in part, without Elo's prior written consent. Subject to the preceding sentence, these Terms shall bind Customer and Customer's permitted successors and assigns. Elo may assign these Terms, or any of its rights or obligations hereunder, in its sole discretion.

(d) Relationship of Parties. Neither Party nor its employees, consultants, contractors, or agents are agents, employees, partners, or joint ventures of the other Party, nor do they have any authority to bind the other Party by contract or otherwise to any obligation. Neither Party will represent the contrary, expressly, implicitly, by appearance, or otherwise.

(e) Publicity. Elo may identify Customer as a customer of Elo on its website and other marketing materials and, in connection with these activities, Elo may use Customer's name and logo in accordance with any brand usage guidelines provided in writing to Elo. Except as permitted in this Section 15(e) or with respect to disclosures and regulatory filings required under applicable law, neither Party shall make any public announcements relating to the matters contemplated by these Terms without the prior written consent of the other Party.

(f) Force Majeure. Elo shall not be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, non-performance of its vendors or suppliers, acts of God, pandemics, epidemics, shortages of fuel, energy, labor or materials, transportation delays, electrical or communication infrastructure failures or disturbances, fires, floods, labor disturbances, riots, or wars.

(g) No Waiver. Failure by either party to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or any other provision.

(h) Construction. The official text of these Terms shall be in English. Any non-English translation of these Terms is for reference only, and in the event of any dispute concerning the interpretation or construction of these Terms, reference shall be made only to these Terms as written in English. Each Party acknowledges that any interpretation of these Terms may not be construed against a Party by virtue of that Party having drafted the provisions. The headings and captions contained herein are for convenience of reference only and shall not affect the interpretation or construction of these Terms.

(i) Notices. Notices made by Elo to Customer under these Terms may be (i) posted on the applicable Elo portal or may be provided upon access to Services, (ii) via email at the address provided to Elo in connection with Customer's registration, or (iii) by overnight courier or certified mail to the address provided by Customer in connection with Customer's registration. It is Customer's responsibility to keep Customer's contact information (including Customer's email address and notices address) current. Elo will not be responsible to Customer if Customer fails to receive any notices due to inaccurate contact information or Customer's failure to update such information with Elo. Customer must send notices to Elo at Elo Touch Solutions, Inc., 2600 N. Central Expy, Suite 500, Richardson, Texas 75080, or such other address as Elo may provide Customer from time to time for such purposes. All mailed notices shall be deemed effective upon the earliest to occur of: (a) actual delivery; or (b) three days after mailing, addressed and postage prepaid, return receipt requested.