END-USER LICENSE AGREEMENT – Factor4 – all software versions. Revised 3.13.17

This End-User License Agreement (“EULA”) is a legal agreement between you (either a merchant or a single entity) and Factor4, LLC for the SOFTWARE/APPS identified above, which includes the User’s Guide, any associated SOFTWARE components, any mobile apps or any apps on POS and any media, any printed materials other than the User’s Guide, and any “online” or electronic documentation (“SOFTWARE”). By installing, copying, or otherwise using the SOFTWARE, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install or use the SOFTWARE.

1. THIS SOFTWARE IS LICENSED, NOT SOLD. YOU MAY USE THIS SOFTWARE ONLY AS DESCRIBED IN THIS AGREEMENT.
2. GRANT OF LICENSE.
   Evaluation License If you acquired the license for the SOFTWARE on an evaluation or trial basis, you may use the SOFTWARE without charge for the evaluation period. Your evaluation period begins on the day you install the SOFTWARE. You must pay the license fee and register your copy to continue to use the SOFTWARE after the evaluation period. To pay the license fee and register your copy, you should visit www.Factor4gift.com or an authorized sales agent. For so long as the SOFTWARE is the most current version of distributed by Factor4, LLC, you may give exact copies of the evaluation SOFTWARE to anyone. You may not charge any fee for the copy or use of the evaluation SOFTWARE itself, but you may charge a distribution fee that is reasonably related to any cost you incur distributing the evaluation SOFTWARE (e.g. packaging). You must not represent in any way that you are selling the SOFTWARE itself. Your distribution of the evaluation SOFTWARE will not entitle you to any compensation from Factor4, LLC. You must distribute a copy of this license with any copy of the SOFTWARE and anyone to whom you distribute the SOFTWARE is subject to this license. You may not remove any copyright, trademark or reservation of rights language displayed on, in or with the SOFTWARE.

Registered License
When you purchase a license, you will be provided with a license key. You must enable the registered license for the SOFTWARE by activating the SOFTWARE with the provided license key. The term of the license is perpetual unless you purchased a limited term license. The SOFTWARE is licensed on a per-user basis. You must purchase a license for each user which accesses or uses the SOFTWARE. A user may use and install the SOFTWARE for business use on multiple computers and may store the software for business use on portable media for use on multiple computers. A license for the SOFTWARE may not be shared by alternating use of the SOFTWARE between different users. If you acquired the SOFTWARE for a reduced price as an upgrade from a previous version of the SOFTWARE, you may no longer use the previous version. The license is non-transferable.

3. DISTRIBUTION. You are prohibited to distribute the SOFTWARE electronically or otherwise to anyone without prior permission. You may make a reasonable number of backup copies of the SOFTWARE.
4. RESTRICTIONS. You may not reverse engineer, de-compile, or disassemble the SOFTWARE, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not rent, lease, or lend the SOFTWARE. You may permanently transfer all of your rights under this EULA, provided the recipient agrees to the terms of this EULA. You may not use the SOFTWARE to perform any unauthorized transfer of information (e.g. transfer of files in violation of a copyright) or for any illegal purpose.
5. SUPPORT SERVICES. Factor4, LLC may provide you with support services related to the SOFTWARE. Use of Support Services is governed by Factor4, LLC polices and programs described in the user manual, in online documentation, and/or other materials provided by Factor4, LLC as they may be modified from time to time. Any supplemental SOFTWARE code provided to you as part of the Support Services shall be considered part of the SOFTWARE and subject to the terms and conditions of this EULA. With respect to technical information you provide Factor4, LLC as part of the Support Services, Factor4, LLC may use such information for its business purposes, including for product support and development. Factor4, LLC will not utilize such technical information in a form that personally identifies you.
6. TERMINATION. Without prejudice to any other rights, Factor4, LLC, may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE.
7. COPYRIGHT. The SOFTWARE is protected by copyright laws and international treaty provisions. You acknowledge that no title to the intellectual property in the SOFTWARE is transferred to you. You further acknowledge that title and full ownership rights to the SOFTWARE will remain the exclusive property of Factor4, LLC and you will not acquire any rights to the SOFTWARE except as expressly set forth in this license. You agree that any copies of the SOFTWARE will contain the same proprietary notices which appear on and in the SOFTWARE.
8. NO WARRANTIES. Factor4, LLC expressly disclaims any warranty for the SOFTWARE. THE SOFTWARE AND ANY RELATED DOCUMENTATION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL Factor4, LLC OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE DELIVERY, PERFORMANCE, OR USE OF THE SOFTWARE, EVEN IF Factor4, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, Factor4, LLC’s LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY WILL NOT EXCEED THE GREATER OF U.S. $1.00 OR LICENSE FEE PAID BY YOU.
10. SECURITY. You agree that Factor4, LLC is not liable to you for security breaches resulting from your use of the SOFTWARE. The security of the SOFTWARE depends primarily on you selecting a secure password and keeping it confidential. You should not select a password that may be easily discovered by others.
11. MISCELLANEOUS. Should you have any questions concerning this EULA, or if you desire to contact Factor4, LLC for any reason, please contact by electronic mail at: support@Factor4gift.com.

SOFTWARE

LICENSED VERSION
If you choose to license products from Factor4, some personal information is required to complete the purchase. Information such as your name/company, address, email address and billing information. All methods of purchase are ssl encrypted and detailed information can be obtained from the web site at time of purchase. Your personal information is securely stored, and is never given out to anyone, or used by us for anything other than a purchase record.

FRAUD/PIRACY
We aim to keep your information safe. Credit card fraud, identity theft and software piracy will not be tolerated. We may release any information necessary to comply with the law, protect our software licenses, and foremost to protect our valued customers. We will also work with law enforcement and fraud/credit agencies to ensure the safety of your information.

PROCESSING AGREEMENT

1. SERVICES 1.1 Services to be provided by F4 (“Factor4”) or its affiliates and other third party providers. Subject to the terms and conditions set forth in this Agreement, F4 shall provide for the electronic processing of Gift Card, Loyalty Card, Prepaid Card and other related cards offered by F4 (collectively, a “Card”) for purchases and other transactions made by customers of Merchant who hold approved Cards (“Approved Cards”). F4 shall electronically verify that an Approved Card, when swiped, scanned or key-entered through a certified point of sale device at a participating Merchant location, is a valid account on the F4 data processing system (“Card System”) and complete the processing of the requested transaction according to the requirements of the card program associated with the Approved Card. The services to be rendered by F4 in accordance with this Section 1.1 are referred to hereafter as the “Services.” 1.2 Duties to be performed by Merchant. Subject to the terms and conditions set forth in this Agreement, the Merchant agrees to: (a) provide F4 with all information and data reasonably required by F4 to perform the Services; (b) maintain all F4-related transaction records and other records required by law or regulation; (c) obtain, operate and maintain at its own expense the electronic point of sale equipment; (d) be responsible for the accuracy and adequacy of all data transmitted by it or on its behalf for processing by or storage of information on the Card System; (e) maintain sufficient “back-up” information and data to reconstruct any information or data loss due to any system malfunction or failure; and (f) comply with all federal, state and local laws and regulations relating to this Agreement, including consumer protection, financial transaction and escheatment laws and acknowledges that F4 is not responsible for Merchant’s compliance with said laws, and, notwithstanding the provisions of Section 6.2, agrees to wholly indemnify F4 for all related liabilities. 1.3 Use of Name, Logo, Artwork. Merchant grants F4 a non-exclusive license to use Merchant’s name, logo, trademark, service marks, copyrights or any other proprietary classification of Merchant or its affiliates in any advertising, promotional or instructional materials provided by or for F4. Any and all card or collateral artwork created by F4 for merchant will be the property of F4 and may be subject to a release fee at F4’s discretion for use by Merchant for any other purpose.
2. PAYMENT OF FEES 2.1 In consideration for the performance of the Services by F4, the Merchant agrees to pay to F4, either directly or through a third party provider, the fees and other charges set forth on the Setup Form. The Merchant authorizes payment of the fees and charges by collection through direct debit of Merchant’s bank account via the Automated Clearing House (“ACH”) or credit card charge as allowed, on a monthly basis, and all fees and charges will be due and payable on the date of transfer of funds. F4 may increase or decrease the fees and other charges set forth on the Setup Form without the consent of the Merchant, provided that in the event of an increase of the fees and charges, the Merchant may exercise its termination rights described in Section 8.2(ii). Unlimited flat monthly fee programs may require merchant to pay telecom charges for communication to the host data system. In the event that Merchant does not pay F4 in full all of the fees and charges owed in a timely manner, F4 shall have the right to suspend Services until full payment is made by Merchant, including any bank fees and reconnect fee of $25 per incident. All subscription fees will be charged through the App Market.

III. PROVISION OF USER INFORMATION 3.1 After signed acceptance of the Setup Form to which this Agreement is referenced, and prior to delivery of the initial supply of Cards, F4 will supply Merchant with a copy of its information and procedures for enabling it to communicate with the Card System. Such information and procedures may be amended by F4 at any time. F4 shall make every reasonable effort to notify merchant of such amendments in a timely manner.

4. SYSTEM ACCESS 4.1 The Merchant acknowledges that in the event the Card System is not accessible by Merchant due to mechanical failure or other outage, F4 will not process transactions or provide account data during that time. Merchant agrees that F4 shall not be responsible for lost profits or sales due to the malfunction of the Card System. Merchant agrees that it will be solely responsible for any transactions that are authorized by the Merchant without the knowledge or written consent of F4, and notwithstanding the provisions of Section 6.2, will wholly indemnify and hold harmless F4 from and against any and all damage, loss, liability, consequential damage, expense, claim or obligation arising in connection therewith.
5. CONFIDENTIALITY 5.1 Confidential Information. The parties acknowledge and agree that during the initial term of this Agreement, including any renewal, and in the course of the discharge of the duties hereunder, each party may have access to and become acquainted with information concerning the other party (the “Confidential Information”). 5.2 Confidentiality Obligations. Except as otherwise set forth herein or as expressly authorized by prior written consent of the other party, each party agrees that it shall not disclose the other party’s Confidential Information during the term hereof or thereafter to any other person or entity.
6. INDEMNIFICATION, LIMITATION OF LIABILITY 6.1 Indemnification. F4 and Merchant agree that they shall each indemnify and hold harmless the other party and its officers, directors and shareholders, from any and all loss, cost, expense, claim, damage and liability (including attorney’s fees and court costs) paid or incurred by any one or more of them, to the extent it arises from, is caused by, or is attributable to (i) the failure by such party or its representatives to abide by the provisions of this Agreement; (ii) the violation by such party or its representatives, of any applicable laws, regulation or court order relating to this Agreement; or (iii) gross negligence, willful misconduct or any act or omission by such party or its representatives. 6.2 Limitation of Liability. Unless otherwise stated in Section 1.2(f) or 4.1, neither F4 nor Merchant’s cumulative liability for all losses, claims, suits, breaches, or damages for any cause whatsoever and regardless of this form of action or legal theory, shall exceed the amount of fees and charges incurred by Merchant to F4 pursuant to this Agreement for services performed in the immediately preceding 3 months.

VII. TERM 7.1 Unless otherwise agreed in writing, this Agreement shall commence on the date of online electronic or written acceptance by the Merchant and run for consecutive month to month periods until cancelled by the Merchant upon 30 days prior written notice.

VIII. TERMINATION 8.1 Termination by F4. The Merchant understands and agrees that this Agreement may be terminated immediately for “good cause” by F4. For purposes of this Agreement, “good cause” shall mean (i) a material breach of this Agreement by the Merchant; (ii) failure to pay at the time specified any fees, charges or other amounts owed by the Merchant to F4 in accordance with the terms of this Agreement; (iii) a determination by F4 that all Merchant transactions have ceased and its business relationship with the Merchant has ceased; or (iv) the violation of any law or regulation applicable to the Merchant that has an adverse effect upon the operation of the system. 8.2 Termination by Merchant. F4 understands that this Agreement may be terminated by the Merchant upon 30 days written notice to F4 in the event (i) of a material breach of this Agreement by F4; (ii) an increase of fees and charges set forth on the Setup Form as described in Section 2.1 hereof; or (iii) an amendment to this Agreement pursuant to Section 10.2 hereof. 8.3 Responsibilities upon Termination. The Merchant and F4 understand and agree that in the event this Agreement is terminated for any reason whatsoever: (a) After the initial term is completed, Merchant is obligated only to immediately pay F4 any fees and charges incurred by the Merchant prior to the effective date of the termination; (b) Except where specified by an F4 guarantee or other written agreement with F4, The Merchant shall not be entitled to a refund of any fees, charges, or other amounts paid to F4 and shall remain liable and responsible for, meeting all financial and other obligations arising from its participation that may have accrued prior to the effective date of such termination; and (c) Each party shall be responsible for the reinstallation of its computer or telecommunications support services and all related charges. 8.4 Continuing Obligations. The expiration or termination of this Agreement shall not affect or impair the obligation or rights of either party under Articles V and VI of this Agreement, nor any right, duty, or obligation arising pursuant to acts or omissions prior to the effective date of such termination.

9. PROPRIETARY INTEREST 9.1 Proprietary Interest. The Merchant shall have no interest whatsoever, including copyright interests, franchise interests, license interests, patent rights, property rights or other interest in the Services provided by F4. This Agreement is not to be construed as granting to the Merchant any patent rights or patent license in any patent which F4 may obtain in respect of the Services or F4’s software or equipment. The Merchant will make no attempt to duplicate or otherwise ascertain the components, circuit diagrams, logic diagrams, flow charts, source and object code, schematics or operation of, or otherwise attempt to reverse engineer any F4 provided equipment or software.
10. MISCELLANEOUS 10.1 Entire Agreement. This Agreement, together with the Setup Form and all matters incorporated by reference herein, constitutes the entire Agreement between the parties and supersedes all previous negotiations, commitments and writings, including any and all representations made by agents, resellers and representatives of F4. 10.2 Amendments; Waivers. F4 may amend this Agreement in its sole discretion at any time whatsoever, including amending the fees and charges, with the exception of the subscription fees charged through the Clover Marketplace. No course of dealing or failure by a party to enforce any provision of or exercise any right under this Agreement shall constitute a waiver of such provisions or right or affect the validity of this Agreement, or limit or impair the right of a party subsequently to enforce such provisions or exercise such right. 10.3 Assignability. Either party may, without restriction, assign its rights or delegate its duties under this Agreement. 10.4 Applicable Law. This Agreement shall be governed by the laws of the State of Pennsylvania. All parties hereto agree that the exclusive venue for any and all proceedings relating to this Agreement shall be in the state or federal courts located in Delaware County, Pennsylvania. 10.5 Notice. All notices or other communications required under this Agreement shall be effective when hand delivered, sent by U.S. mail (postage prepaid), emailed, faxed or sent by overnight courier and shall be deemed to be given when hand delivered, deposited in the U.S. mail as indicated, emailed or faxed by the sender, or deposited with the overnight courier. Notices shall be addressed to the Merchant at the address indicated on the Setup Form, or other address subsequently provided. Any notice to F4 must be addressed as follows: Factor4, Notices, 501 Abbott Drive, Suite 6, Broomall, Pa 19008.