This Merchant User License Agreement (the “Agreement”) dated as of the date of acceptance by means of a click-through, is made by and among ShopKeep.com Inc. a Delaware Corporation (“ShopKeep”) and the entity designated by the registration data provided herewith (“Licensee”) and applies to Licensee’s use of software downloaded from ShopKeep and Licensee’s use of services provided by ShopKeep (“ShopKeep Services”).

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

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

ShopKeep shall retain the ownership of the provided copy of ShopKeep software and the documentation provided therewith (referred to as a single entity, or as components, as “the Licensed Software”) which is licensed on a non-exclusive basis for use under the following conditions.

Permitted Uses

Subject to the terms hereunder, ShopKeep hereby grants to Licensee a limited, non-exclusive, non-transferrable, revocable license, without the right to sub-license, to install and operate the Licensed Software and to operate an account on the ShopKeep website and related applications solely for the benefit of Licensee and not for any third party, until the termination of this Agreement. Any rights not expressly granted hereunder are reserved. There are no implied rights of any kind. To the extent that the Licensed Software includes intellectual property rights of any third party (“Third Party Rights”), the license granted is to the extent that ShopKeep is able to license such Third Party Rights.

Prohibited Uses

Licensee shall not (a) make copies of or further distribute the Licensed Software, including copying onto any other medium, (b) distribute, rent, sublicense, lease, resell, or assign the Licensed Software, (c) alter, modify or adapt the Licensed Software or the ShopKeep Services, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (d) export the Licensed Software without the appropriate foreign government licenses and without ShopKeep’s prior written approval, (e) resell, rent or otherwise provide access to the ShopKeep services to a third party or (f) take any action in an attempt to obtain any other ShopKeep user’s data, cause malfunction, crash, tamper with or otherwise impair the ShopKeep website and related applications, and their services. Any rights not expressly granted hereunder are reserved by ShopKeep.

No rights in the Licensed Software or ShopKeep Services are granted, whether expressly or by implication, including, without limitation, any rights in any patents, copyrights, trademarks or trade secrets embodied therein, except in connection with the permitted uses expressly described herein.

Fees

Licensee agrees to timely pay the monthly fee set out in the order form or as required by the ShopKeep website. Licensee agrees to the Billing Policy, incorporated herein, and located here. Failure to comply with or otherwise pay fees due is a material breach of this agreement.

Data

Licensee acknowledges and agrees to the terms of the ShopKeep Privacy Policy located here. ShopKeep agrees that as between Licensee and ShopKeep, (a) Licensee’s data maintained by Licensee on the ShopKeep website and related applications belongs to Licensee; and (b) ShopKeep acts as data processor (as defined in the Data Protection Act 1998 (“DPA”)). Each party hereto undertakes to comply with the DPA in relation to its use of such data. Licensee hereby grants permission to ShopKeep for ShopKeep to use the data solely for providing Licensee the ShopKeep account, improving and maintaining the ShopKeep website and related applications, and their services and for analytical purposes in a manner where such data is aggregated with other user data and cannot be readily reverse engineered into personally identifiable information.

End Customer Personal Information

Licensee agrees that notwithstanding anything to the contrary herein, Licensee shall handle any personally identifiable information that it inputs into the ShopKeep systems in the following manner: (i) in the event Licensee seeks to export such data, Licensee shall use a commercially reasonable contact management tool to provide an opt-out mechanism for anyone who has provided Licensee personally identifiable information that is stored on ShopKeep’s systems, (ii) Licensee agrees that ShopKeep can delete such data in the event the Licensee exercises the ShopKeep opt-out mechanism and (iii) any use of such data by Licensee shall comply with ShopKeep’s privacy policy. Licensee shall indemnify and hold harmless ShopKeep and the ShopKeep Parties from any claim brought against ShopKeep alleging that personal information stored on ShopKeep was improperly used where such use was by Licensee while such information was stored on ShopKeep or any use after Licensee has exported such data.

Limited Liability

NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED UNDER GOVERNING LAW.

LICENSEE AGREES THAT THE LICENSED SOFTWARE AND SHOPKEEP SERVICES ARE PROVIDED “AS IS.” WITHOUT ANY WARRANTY EXPRESS OR IMPLIED AND WHETHER AS TO MERCHANTABILITY, FITNESS FOR PURPOSE OR INFRINGEMENT. NO WARRANTY OR REPRESENTATION IS GIVEN, AND/OR ANY LIABILITY IS ACCEPTED, BY SHOPKEEP IN RELATION TO THIRD PARTY RIGHTS. ANY USE OF THE LICENSED SOFTWARE AND SHOPKEEP SERVICES IS AT LICENSEE’S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL SHOPKEEP OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS (“SHOPKEEP PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE SHOPKEEP SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, SHOPKEEP IS NOT RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR SHOPKEEP SERVICES, LOSS OF DATA, THE COSTS OF RECOVERING DATA, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS. SHOPKEEP MAKES NO WARRANTY OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE LICENSED SOFTWARE OR SHOPKEEP SERVICES FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GIVEN THAT LICENSEE IS IN A BETTER POSITION THAN SHOPKEEP TO FORESEE AND EVALUATE ANY POTENTIAL DAMAGE OR LOSS WHICH LICENSEE MAY SUFFER IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE AND/OR THE SHOPKEEP SERVICES AND THAT SHOPKEEP CANNOT ADEQUATELY INSURE ITS POTENTIAL LIABILITY TO LICENSEE, LICENSEE ACKNOWLEDGES AND AGREES THAT THE EXCLUSIONS AND LIMITATIONS CONTAINED HEREIN ARE REASONABLE. TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNREASONABLE, SHOPKEEP’S AGGREGATE LIABILITY SHALL NOT EXCEED $100. LICENSEE SHALL ACT AT ALL TIMES TO MITIGATE ANY LIABILITY.

LICENSEE ACKNOWLEDGES AND AGREES THAT SHARING OF ITS ACCOUNT INFORMATION, LOGIN INFORMATION OR PASSWORDS SHALL BE AT ITS SOLE AND ABSOLUTE RISK AND THAT SHOPKEEP SHALL NOT BE LIABLE FOR ANY DAMAGE ARISING AS A RESULT OF SUCH SHARING.

Some countries do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Termination

Licensee may terminate this license at any time. ShopKeep, in its sole discretion, has the right to suspend or terminate this license and your account and refuse any and all current or future use of the ShopKeep Services for any reason at any time. This license and Licensee’s right to use the Licensed Software and ShopKeep Services automatically terminate if Licensee fails to comply with any provision of this Agreement. Licensee’s duties to (i) pay amounts due and payable, (ii) refrain from any kind of reverse engineering or other act in violation of this agreement or (iii) indemnify ShopKeep and the ShopKeep Parties shall survive termination of this Agreement. Upon termination Licensee will destroy all copies of the Licensed Software and documentation onto which the Licensed Software or documentation has been installed. Upon termination ShopKeep shall terminate the Licensee’s access to their ShopKeep account, the account itself and the data residing therein. LICENSEE MUST EXPORT THEIR ACCOUNT DATA PRIOR TO TERMINATION OF THE SHOPKEEP SERVICE. SHOPKEEP SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION. In addition, ShopKeep reserves the right and Licensee acknowledges such right for ShopKeep to terminate service of Licensee’s account on 30 days’ notice if ShopKeep determines in its sole discretion that it is not capable of fully meeting the apparent requirements of Licensee.

Confidentiality

Licensee agrees that the Licensed Software and the operation of the ShopKeep Services and its processes are the confidential information of ShopKeep and agrees not to disclose such software or such operation and processes to any third party. Licensee agrees that breach of this duty of confidentiality shall cause irreparable harm for which monetary damages would be difficult to quantify or insufficient and therefore ShopKeep shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond.

Credit Card Processing Terms And Conditions

If Licensee has selected that credit card transaction processing will be provided automatically with the ShopKeep services, Licensee agrees to the following contractual provisions:

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

Licensee shall be responsible for the operation and connection of their point of sale equipment with the payment gateway provider(s)’s systems and services.

Licensee is liable for all fees charged to ShopKeep by its payment gateway provider(s) for Licensee’s use of the payment gateway provider(s)’s systems and services

Licensee shall: (i) make reasonable efforts to secure any credit card transaction data residing on the equipment owned, controlled or operated by Licensee from intrusion or unauthorized access, (ii) comply with all state and federal laws governing the disclosure and use of retail customer information, (iii) not use, disclose, sell or disseminate any credit/debit card-holder information obtained in a credit card transaction processed through ShopKeep or its payment gateway provider(s), except as permitted by the card-holder, (iv) comply with the requirements of any debit/credit card or other payment brand rules, including those related to data security and customer data.

Licensee agrees that neither ShopKeep nor its payment gateway provider(s) shall be liable for any improperly processed transactions, illicit access to Licensee’s account with its payment gateway provider(s) or any of Licensee’s transaction data or unauthorized disclosure and use of passwords or its payment gateway provider(s)’s account access information.

Licensee agrees to immediately notify ShopKeep in the event of any security breach of Licensee’s systems or unauthorized access to Licensee’s transaction data.

Licensee shall indemnify and hold ShopKeep and the ShopKeep Parties harmless from any claim brought against ShopKeep or any ShopKeep Party arising from breach by Licensee of any of the provisions under this section of the Agreement, including, without limitation all costs, expenses, reasonable attorney fees, damages or awards, as such costs and expenses are incurred.

LICENSEE AGREES THAT USE OF THE PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS OR SERVICES IS AT LICENSEE’S SOLE AND ABSOLUTE RISK AND THAT NEITHER SHOPKEEP, NOR ANY SHOPKEEP PARTY SHALL BE LIABLE IN ANY WAY OR UNDER ANY THEORY IN THE EVENT OF ANY CLAIM, DAMAGE OR EXPENSE INCURRED BY LICENSEE ARISING FROM USE OF THE PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS OR SERVICES. LICENSEE ACKNOWLEDGES THAT SHOPKEEP IS NOT RESPONSIBLE FOR ITS PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS AND THAT NO WARRANTY FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED, ARISES ON THE PART OF SHOPKEEP. LICENSEE AGREES THAT LICENSEE’S SOLE RECOURSE IN THE EVENT OF ANY CLAIM IS AGAINST ITS PAYMENT GATEWAY PROVIDER(S) AND LICENSEE HEREBY IRREVOCABLY RELEASES AND WAIVES ANY CLAIM IT HAS OR MAY HAVE, WHETHER OR NOT INCHOATE, AGAINST SHOPKEEP AND THE SHOPKEEP PARTIES ARISING FROM USE OF ITS PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS.

Representation

The Licensee represents and warrants that it has the due right and power to enter into this Agreement, entering into this Agreement will not cause the breach of any agreement Licensee has with a third party and that all of the registration information provided to ShopKeep is accurate in all respects.

Choice of Law and Forum

This Agreement shall be construed under the laws of the State of New York, U.S.A. as applied to contracts performed entirely within the state. Any dispute arising under this Agreement shall be exclusively heard in the state or federal courts residing in New York County, New York, U.S.A. Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.