This Via POS License Agreement is a binding agreement between Licensee and Via Puerta Inc. (“Via Puerta” or “Via POS”) and by downloading, installing, accessing or using the via pos application, software and/or online system (including any free demo version thereto), licensee is accepting and agreeing to be bound by this license agreement. Use of the software is restricted by this license agreement. Refunds are not available for any license, hardware, maintenance, updates, upgrades, and optional plans. The terms of this license agreement apply during any period in which the software is installed on your system.

• 1. DEFINITIONS.

For purposes of this License Agreement, the following terms have the meanings provided below:

• a) “Business Location” means a single place of business designated by Licensee to Via Puerta and agreed to Via Puerta as the licensed location from which Licensee operates its business and does not include any Branch Offices. For purposes of this definition, if a Licensee wishes to license the App (or herein as “App”, “Application” or “Software) for a mobile business or for a business that does not have a set geographic location of business (for example, a food truck or a kiosk), then such Licensee shall obtain prior consent of the Licensor in advance. If multiple businesses are operated out of a Business Location, then Business Location shall only refer to the business being operated by the Licensee and not by any other businesses being operated by other entities or individuals from such place of business.
• b) “Credit Card Payment Module” means certain credit card payment software developed by a third party service provider which, when integrated into the Software, allows the Licensee to process customer credit card payment and view related payment data; provided, that such additional service shall be provided and available only as long as the Licensee has executed a separate service provider agreement with such service provider and complies with the terms and conditions thereunder; provided, further, that the access to and availability of the Credit Card Payment Module is subject to Section 3 of this Agreement. As of the date of this Agreement, the Software provides Credit Card Payment Module with the following third-party service providers: Heartland Payment Systems, Tsys – Priority Payment Systems and/or Priority Integrated Systems, and Worldpay FIS Global. Such list is subject to change with or without any advance notice to Licensee during the Term of this Agreement.
• c) “Designated Employees” means, with respect to a Single User License, the individuals meeting the requirements of Section 2.b.
• d) “Demonstration Version” means the Software being used for evaluation purposes only and for which Licensee has not purchased license rights.
• e) “Documentation” means the user and support manuals for the Software and any other printed or digital material relating to the use or support of the Software.
• f) “Equipment” means Point-of-Sale hardware on which the Software is or can be installed.
• g) “Initial Term” means the initial term set forth in the cover page of this Agreement.
• h) “LAN” means two or more Equipment that are connected to each other and capable of sharing files, applications or information and that can be accessed from one (1) Business Location of Licensee. A terminal server is a LAN if the computers capable of accessing applications and information on such server are located within one (1) Business Location.
• i) “Licensee” means the legal entity or individual in whose name the license for the Software is registered with Via Puerta or in the case of the Demonstration Version, the individual who downloaded and/or installed the Demonstration Version.
• j) “Multiple License” means the license rights granted pursuant to Section 2.c. of this License Agreement.
• k) “Renewal Term” means the renewal term set forth in the cover page of this Agreement.
• l) “Single License” means the license rights granted pursuant to Section 2.b. of this License Agreement.
• m) “Software” means the object code version of the Via POS Software that may be licensed by Via Puerta for installation on Licensee’s Equipment and all Documentation provided with the Software. To the extent that Via Puerta provides any updates, enhancements and new versions of the Software, such will be deemed included in the definition of “Software”; provided, however, under no circumstances should the definition of “Software” include any third party software integrated or integratable with Via POS, including without limitation, (i) Credit Card Payment Module (defined herein), and (ii) any other accounting, bookkeeping or payment software developed by third parties such as QuickBooks (by Intuit Inc.).
• n) “Update” shall mean a new release of the Software or other deliverable provided hereunder consisting of a bug fix, workaround, or patch to correct any reproducible error in the Software. Via Puerta retains sole discretion over the definition and packaging of its product and service offerings.
• o) “Upgrade” means a new release of the Software or other deliverable provided hereunder for reason of additional functionality. Via Puerta retains sole discretion over the definition and packaging of its product and service offerings.
• p) “WAN” means two or more Equipment that are connected to each other and capable of sharing files, applications or information and that can be accessed from more than one place of business of Licensee. A terminal server is a WAN if the computers capable of accessing applications and information on such server are located within more than one office location.
• 2. Terms And Termination
• a) Term. The term of this License Agreement shall continue for the license term set forth in the Quote (the “Term”) unless terminated as provided herein.
• b) Termination by Licensor. This License Agreement and any license under an applicable Quote hereunder may be terminated by Licensor: (i) if Customer fails to make any payments due hereunder within fifteen (15) days after Licensor delivers notice of default to Customer; (ii) by giving prior written notice to Customer if Customer fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Customer’s receipt of Licensor’s notice to cure such non-performance of material obligation; or (iii) if Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
• c) Termination by Customer. This License Agreement may be terminated by Customer by giving prior written notice to Licensor if Licensor fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Licensor’s receipt of Customer’s notice to cure such nonperformance of material obligation. Such notice shall describe, in detail, Licensor’s alleged non-performance and shall describe, in detail, the steps Customer believes Licensor must take to remedy such alleged non-performance.
• d) Termination of Perpetual Licenses. Upon termination of this License Agreement or any license hereunder, Customer’s rights to the affected App and/or Software, Licensor Confidential Information and other Licensor materials (collectively “Materials”) shall cease. Customer shall immediately stop using such Materials and shall return such Materials to Licensor, or destroy all copies thereof. In addition, Customer shall provide Licensor with written certification signed by an officer of Customer, that all copies of the Materials have been returned or destroyed and that no copies have been retained by Customer for any purpose whatsoever. Following termination, any use of the Materials by Customer shall be an infringement and/or misappropriation of Licensor’s proprietary rights in the Materials. Upon termination of this License Agreement by Customer, Licensor shall have no further obligation or liability hereunder and all fees due under the License Agreement shall become due and payable to Licensor immediately upon such termination.
• e) Termination of Subscriptions. Upon expiration of the Term set forth in this License Agreement or any license hereunder, Customer’s rights to the affected App and/or Software, Licensor Confidential Information, and other Licensor materials (collectively “Materials”) shall cease. Customer shall immediately stop using such Materials and shall return such Materials to Licensor, or destroy all copies thereof. In addition, Customer shall provide Licensor with written certification signed by an officer of Customer, that all copies of the Materials have been returned or destroyed and that no copies have been retained by Customer for any purpose whatsoever. Following termination, any use of the Materials by Customer shall be an infringement and/or misappropriation of Licensor’s proprietary rights in the Materials. Upon termination of this License Agreement by Customer, Licensor shall have no further obligation or liability hereunder and all fees due under the License Agreement shall become due and payable to Licensor immediately upon such termination.
• f) Other Remedies. Termination of this License Agreement or any license created hereunder shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this License Agreement including, but not limited to, any Quote.
• 3. License Grants.

The Software is licensed, not sold.

• a) Demonstration Version. If the Demonstration Version has been installed, Via Puerta hereby grants Licensee a non-exclusive, nontransferable license to use the Demonstration Version and to install the Software onto the hard drive of one (1) Equipment for evaluation purposes only. Notwithstanding any other representations and warranties contained in this License Agreement, the demonstration version is licensed on an “as is” basis and without warranties of any kind. With respect to the demonstration version, via puerta disclaims all warranties, express and implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, and title and non-infringement.
• b) Single License. If Licensee has registered and paid for a Single License, Via Puerta hereby grants Licensee a nonexclusive, nontransferable license to install the Software on one (1) Equipment and use the Software for internal purposes in connection with Licensee’s business, at the licensed Business Location by the Licensee or authorized employees designated by Licensee. With a Single License: (i) use of the Software is limited to the one Equipment at a time; and (ii) the Designated Employee must be an individual employee of Licensee or otherwise authorized by Licensee to access and/or use the Software on behalf of the Licensee. Designated Employees must work within the same licensed Business Location and the Software may not be accessed from any other location without obtaining additional site licenses. Licensee may not install the Software on a WAN or LAN without obtaining advance permission from Via Puerta and purchasing additional site licenses.
• c) Multiple License. If Licensee has registered and paid for Multiple Licenses, Via Puerta hereby grants Licensee a nonexclusive, nontransferable license to use the Software for internal purposes in connection with Licensee’s business, at the licensed Business Location designated by Licensee. With Multiple License: (i) the Software may be used by any number of Designated Employees located at the Business Location but use of the Software may not exceed the number of the Equipment for which licenses have been obtained. All permitted users must work within the same licensed Business Location and the Software may not be accessed from any other location without obtaining additional site licenses. The Software may only be installed and used on one Equipment per license. Licensee may not install the Software on a WAN or LAN without obtaining permission from Via Puerta and purchasing additional licenses.
• d) Maintenance. Single Licenses and Multiple Licenses come with the Initial Term of maintenance (the “Maintenance Term”) and support commencing from date of payment of the applicable license fee. Details of the maintenance and support provided includes periodic Software releases and Updates to the Software as may be made generally available by Via Puerta to its customers as part of maintenance. Via Puerta, however, reserves the right to charge separately for any new products, Upgrades, functionality or features. Any new products, Upgrades, functionality or features may be offered separately and may be subject to additional license fees and maintenance and support charges. Via Puerta only supports and provides maintenance for current versions of the Software and Software for which available updates have been installed. Via Puerta reserves the right to charge for responding to support calls or inquiries relating to noncurrent versions of the Software. Maintenance after the Initial Term can be purchased for the Renewal Term or any other term increments that Via Puerta may offer at its sole discretion. In order to receive maintenance after expiration of the initial Maintenance Term or at the expiration of any applicable Maintenance Term, Licensee must renew maintenance within the “Grace Period” (as defined in this Section). If purchased within the Grace Period, the maintenance fee will be the fee in effect at the date of expiration of the most recent Maintenance Term and the Maintenance Term will run for the Renewal Term from the expiration of the Initial Term or the most recent Renewal Term. For purposes of this section, the “Grace Period” means the time period beginning from the expiration of the most recent Maintenance Term and ending on the last day of the calendar month following the calendar month in which the most recent Maintenance Term expired. If the Initial Term is not renewed within the Grace Period, the maintenance fee is subject to increase and Licensee should contact Via Puerta to ask about those fees. In any case where maintenance is not renewed during the Grace Period, the new Maintenance Term shall run from the date of renewal payment.
• 4. Credit Payment Module And Other Third Party-Developed Services
• a) General. In connection with Licensee’s use of the Software and as part of the functionality of certain versions of the Software, Licensee may have the option to access certain supported ancillary services (“Ancillary Services”), including without limitation, (i) Credit Card Payment Module (defined herein), and (ii) any other accounting, bookkeeping or payment software developed by third parties such as QuickBooks (by Intuit Inc.). In order to select any of the Ancillary Service, Licensee (i) must have registered and paid for select versions of the Software, (ii) may be required to have internet access and (iii) shall execute a separate third party service agreement with the select Ancillary Service’s provider and comply with the terms and conditions thereunder. Separate fees may apply. Via Puerta upon Licensee’s request may integrate the Software to allow the Licensee to access participating Ancillary Services.
• b) Collection of Data. Licensee acknowledges and agrees that in accessing the Ancillary Services through the Software, certain account number(s), customer names, credit card charges, debits and deposits may be collected and stored in the Software and/or its database depending upon the nature of the Ancillary Services. Licensee hereby authorizes Via Puerta in conjunction with Via Puerta’s operation and hosting of the Software and/or its database while accessing any Ancillary Service(s), to (i) host, collect and maintain such customer and/or financial data, (ii) use such data to make the Ancillary Services available to the Licensee, (iii) reformat such data as reasonably necessary for the data to function with the Ancillary Services and (iv) take such other actions as are reasonably necessary to perform the actions described in (i) and (iii). Licensee hereby represents that the Licensee is the legal owner of such data and that the Licensee has the authority to appoint, and hereby expressly does appoint, Via Puerta as its agent with limited power of attorney to access and retrieve such customer and/or financial data on the Licensee’s behalf. Licensee further acknowledges that Via Puerta does not review Licensee’s data and agrees that Via Puerta is not responsible for its completeness or accuracy or any malfunctioning caused by Licensee’s use of the Ancillary Services with the Software.
• c) Disclaimer. Licensee agrees and acknowledges that (i) Via Puerta has no control over any third party Ancillary Services, that (ii) Via Puerta does not guarantee that the Licensee will be able to use the Software with such Ancillary Services, and (iii) Via Puerta will have no liability whatsoever for any actions or inactions on the part of the third party service providers resulting in the Licensee’s inability to use the Software to access such Ancillary Services or otherwise use or access the Ancillary Services in connection with the use of the Software. Any transactions or informational activities performed by any Ancillary Services are not made through the Software. Licensee’s use of the Ancillary Service may be subject to additional terms and conditions. Licensee is solely responsible for any charges associated with any Ancillary Services.
• 5. Ownership and Copyright.
• The Software is the valuable, confidential, copyrighted, and/or trade secret property of Via Puerta. The Software is licensed not sold. Except for the license rights granted hereunder, Via Puerta reserves all right, title, and interest, express or implied, in and to the Software.
• 6. Additional License Restrictions.
• Licensee may only use the Software as described in this Agreement and Licensee is responsible for use of the Software in excess of the use limitations or other restrictions provided in this Agreement. Any breach of this Agreement by any employee, officer or agent of Licensee shall constitute a breach by Licensee. The registered name of the Licensee must match the name on all filings made through the Software. Except to the extent expressly authorized by this Agreement, Licensee shall not: (i) permit any third party, including any independent contractors of Licensee, to access or use the Software; (ii) decompile, disassemble, reverse engineer or otherwise derive source code from the Software (except to the extent expressly authorized under law); (iii) use the Software to develop a competing software product; (iv) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software for the benefit of any third party; (v) use the Software or permit the Software to be used from outside the United States without written permission from Via Puerta (which may entail payment of additional license fees and which may be granted at Via Puerta’s sole discretion); (vi) use the Software or allow the transfer, transmission, export, or re-export of the Software or any portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other governmental agency; or (vii) remove any copyright, trademark, proprietary rights, ownership, disclaimer or warning notice included on or embedded in any part of the Software or any other materials provided by Via Puerta to Licensee. Requests for permission to install the Software on a laptop, notebook or other portable computer that could enable the Software to be accessed from a location other than a licensed Business Location requires permission and will not be granted without Licensee obtaining and paying for an additional site license. Licensee shall treat the product key and validation key assigned or provided to Licensee as confidential and shall not disclose the same, either directly or indirectly, to any person not authorized to use the Software under this Agreement.
• 7. Assignment.
• The license rights granted under this Agreement are not assignable or transferrable without the express written consent of Via Puerta in its sole discretion. Any attempted assignment without the prior written consent of Via Puerta is null and void and will result in automatic and immediate termination of the license rights granted under this Agreement.
• 8. Disclaimer of Warranty
• a) The software is licensed “as is”, and viapuerta expressly disclaims and hereby waives, releases and renounces any and all warranties, oral or written, express or implied, with respect to the software, including, without limitation, any warranty of merchantability or fitness for a particular purpose.
• b) The entire risk as to the results and performance of the Software is assumed by Licensee. Licensee assumes full and sole responsibility for the selection of the Software to achieve Licensee’s intended purposes, for the proper installation, use of the Software and verifying the results and output obtained from the use of the Software. Via Puerta does not warrant that the software will meet licensee’s requirements or that the software is error-free.
• c) Licensee shall indemnify, defend, and hold harmless Via Puerta and its officers, directors, employees, licensees, agents and affiliates, from and against any claim or action brought against Via Puerta by any third party, including but not limited to Licensee’s clients, arising out of Licensee’s use of the Software or any services provided by Licensee, and Licensee shall pay all costs, damages and reasonable attorneys’ fees relating to such claim or action.
• 9. Limitation of Liability
• a) None of via puerta nor any of its licensors or affiliates nor any of their respective directors, stockholders, members, officers, agents, employees, advisors, or representatives shall have any liability to licensee or any third party for any loss of profits, sales, business or data, business interruption, or other incidental, consequential, or special loss or damages, including exemplary or punitive damages, of any kind or nature resulting from or arising out of this agreement, the software, or any maintenance or support services provided in connection with the software. The total liability of via puerta to licensee arising out of this agreement, the software, any ancillary services and any maintenance or support services provided in connection with the software for any and all claims or types of damages shall not exceed the total fees actually paid or payable hereunder by licensee during the twelve (12) months immediately preceding the first event giving rise to liability.
  The allocations of liability in this Section represent the agreed, bargained-for understanding of the parties and Via Puerta’s compensation hereunder reflects such allocations. The limitation of liability and types of damages stated in this Section are intended to apply regardless of the form of lawsuit or claim, whether in tort, contract or otherwise, and regardless of whether any limited remedy provided for in this Agreement fails of its essential purpose. Not in limitation of the foregoing, Via Puerta shall have no liability for Licensee’s misuse of the Software, or errors that Licensee may make in connection with using the Software, including without limitation, misuse or errors that may lead to the incurrence of additional or duplicate court filing fees resulting from duplicative electronic filings.
• b) None of via puerta nor any of its licensors or affiliates nor any of their respective directors, stockholders, members, officers, agents, employees, advisors, or representatives shall have any liability to licensee or any third party for any losses or damages arising out of, in connection with, or as a result of, licensee’s use of any data collected or obtained from the software (including through licensee’s use of any of the ancillary services) and/or exported out of the software.
• 10. Confidentiality.
• Licensee acknowledges that the Software constitutes a valuable proprietary product and trade secret of Via Puerta embodying substantial confidential information, ideas and expressions. Licensee acknowledges that use and display of any copyright notice shall not be construed as an admission or presumption that publication of the Software has occurred. Except as Via Puerta may permit by giving written permission to Licensee, Licensee agrees to observe complete confidentiality as to all aspects of the Software, including without limitation, agreement not to disclose or otherwise permit any other individual or business not subject to a license with Via Puerta access to, in any manner, the Software or any part of it in any form whatsoever. Licensee further agrees to notify Via Puerta promptly and in writing of any circumstances surrounding use of any part of the Software by any individual or business not subject to a license with Via Puerta.
• 11. Term; Termination.
• The license rights granted under this Agreement are perpetual, unless terminated by Via Puerta in accordance with this Agreement. Via Puerta has the right to terminate the license rights granted under this Agreement, by notice in writing to Licensee, if: (i) Licensee fails to comply with any material term or obligation of Licensee under this Agreement; (ii) upon the bankruptcy or insolvency of Licensee or upon the commencement of any voluntary or involuntary winding up, or upon the filing of any petition seeking the winding up, of Licensee’s business; or (iii) upon a court ordered suspension of Licensee from making any bankruptcy filings in any jurisdiction or upon any other suspension or revocation of Licensee’s license to practice law (if applicable). Upon such termination, Licensee shall cease all use of the Software, delete the Software from any of its computer systems and destroy the Software in its possession.
• 12. Updates.
• To receive any Updates to the Software, Licensee must be authorized to use the Software and be under a current maintenance term. Via Puerta reserves the rights to charge for any Upgrades to the Software.
• 13. Data Collection.
• You acknowledge that Via Puerta has the right to collect information based on Licensee’s use of the Software, including, but not limited to (i) Licensee’s name and the product key and validation key granted to Licensee for use of the Software, and (ii) certain other information relating to the Licensee’s use of the Software reasonably necessary for Via Puerta to provide maintenance and monitor the Software’s functions. If Via Puerta determines through its collection of information that the Software is being used in violation of the license rights granted, Via Puerta shall have the right to terminate this Agreement immediately and pursue any and all remedies available to it under this Agreement. The exercise of the foregoing right shall not limit or restrict Via Puerta’s pursuit of any other remedies available to it. Licensee shall be responsible for any use of the Software permitted by Licensee by any third parties in violation of the license rights granted.
• 14. Audit Right.
• At Via Puerta’s expense, Licensee shall permit Via Puerta representatives to review, no more than one time in any 12-month period, such computer systems and records of Licensee as may be required for the sole purpose of verifying Licensee’s compliance with the license restrictions in this Agreement. Such audits shall take place at reasonable times, upon reasonable advance written notice, during normal business hours of Licensee and in such a manner so as not to interfere with Licensee’s normal business activities.
• 15. Choice of Law; Waiver of Jury Trial.
• This Agreement will be governed by, and construed and interpreted according to, the laws of the State of California, without regard to its choice of law rules. Any and all legal proceedings (including counterclaims filed by Licensee as a result of a collection action by Via Puerta) regarding this License Agreement may only be brought in the state or federal courts located in Los Angeles County, California, and Licensee expressly submits to the jurisdiction of such courts and consents to extraterritorial service of process. Each party hereby waives its right to a jury trial in connection with any dispute or legal proceeding arising out of this agreement or the subject matter hereof.
• 16. Delays or omissions.
• No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.
• 17. Amendments And Waivers.
• This Agreement may be amended or modified only with the mutual written consent. Any waiver or consent may be given subject to satisfaction of conditions stated herein and any waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
• 18. Entire Agreement.
• You agree that this Agreement constitutes the entire agreement between Licensee and Via Puerta and supersedes all prior negotiations, understandings and/or agreements, whether written or oral.
• 19. Severability.
• If any provision of this Agreement is held to be illegal, or otherwise unenforceable, such provision will be severed, stricken and replaced with a legal and enforceable provision which most closely reflects the intent of the parties and the remainder of this Agreement shall continue in full force and effect.
• 20. Notice.
• All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on the signature page or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Section 20.