POSTRON POS device purchase & SAAS agreement
POSTRON POINT-OF-SALE DEVICE PURCHASE & SOFTWARE-AS-A-SERVICE AGREEMENT (“Agreement”)
PLEASE READ THIS AGREEMENT BEFORE USING ANY POSTRON DEVICE OR SOFTWARE. BY USING ANY POSTRON POINT-OF-SALE (“POS”) DEVICE AND OPERATING SOFTWARE PRODUCT (“SOFTWARE”), YOU (“MERCHANT”, “CUSTOMER”, OR “YOU”) ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS ENUMERATED HEREIN, YOU ARE EXPRESSLY PROHIBITED FROM USING ANY POSTRON DEVICE OR SOFTWARE.
1.1 The terms and conditions listed herein apply to the purchase of any POSTRON POS Device (“Device(s)”) and the use of the Software-As-A-Service (“SAAS”). By using our Device and SAAS, Merchant hereby accepts and agrees to all the terms and conditions contained in this Agreement.
1.2 Merchant further agrees that in using our Device, Merchant likewise accepts and agrees to the terms of usage for the POS Software which operates our Device. Only POSTRON POS Software can exclusively operate our Device. Merchant agrees to use the Device in conjunction with the POS Software and not, under any circumstance whatsoever, either add any other software to the Device, or remove, modify, compromise or otherwise alter the Software.
1.3 POSTRON POS Devices, Software, and Services are offered only in the United States of America (“USA”) and cannot be used in any location outside the USA. POSTRON POS Devices are not available nor sold outside the USA.
2.0 Applicable Definitions
2.1 “POS Software”, as used in this Agreement, shall include SAAS, all apps, software and any other computer program developed by POSTRON to run on its Devices as further defined below. POS Software is designed to take customer orders and process customer payment transactions.
2.2 “Subscription” refers to the successful registration and payment for POS Software including support services (“Services”).
2.3 “Device(s)” refers to All Smart POS Devices/Terminals offered by POSTRON that can run POSTRON’s Software. This includes a handheld device and a desktop device with or without POSTRONS’s merchant credit card processing services (“Merchant Services”). Merchant may choose to have more than one Device.
2.4 POS “Accessory(ies)” include optional POSTRON products that are integrated with POS Devices which can be purchased separately by Customer including, without limitation, a receipt printer, router, scanner and cash drawer.
2.5 Among the other Services that POSTRON offers includes Merchant Services, a text messaging feature that allows Merchant to transmit e-receipts and text messages to its customers for marketing, advertising, and promotional purposes. Said Services are provided at an additional charge and would be reflected in an attachment to this Agreement, or in a service order from POSTRON to Merchant.
3.0 Device & Software Agreement
3.1 The deliverables and financial terms of this Agreement are hereby contained in Attachment “A” hereto.
3.2 By purchasing a POSTRON Device, Merchant owns the Device subject to certain limitations listed in this agreement.
3.3 The Device that you purchased is designed for POS transactions in beverage and/or food businesses including hot and cold drink stores and restaurants and exclusively uses POSTRON POS Software as its operating system.
3.4 In purchasing this Device, Merchant agrees to use only POSTRON POS Software. Merchant further agrees that no other system shall be used in place of POSTRON POS Software.
3.5 By paying and registering to use the POS Software, Merchant will be able to use POS Software in the POS Device in exchange for a monthly subscription fee.
3.6 POSTRON provides multiple software plans including: POSTRON Zero, POSTRON Express and POSTRON Advance. Varying levels of technical support may be provided for both plans. Please check postron.com for the updated lists of features included in each package. Software plans and features are subject to change without notice.
3.7 Customer can only subscribe to one software plan for all POSTRON devices they own. For example, a Merchant cannot have a POSTRON Express subscription for one of its POSTRON Devices, and POSTRON Advance for another Device.
3.8 Customer can upgrade or downgrade its service plan. Merchant may contact POSTRON’s sales/tech support team for assistance.
3.9 Merchant shall be charged an annual maintenance fee of $99.
3.10 POSTRON reserves the right to change any of its prices or fees from time-to-time with or without notice.
3.11 The Device, POS Software and Services are the exclusive property of POSTRON, and POSTRON hereby retains exclusive ownership to all rights, titles and interests therein.
4.0 Availability of POSTRON Devices
4.1 Every effort is made to maintain sufficient stock of all products that we offer. Potential inventory shortages at our distributor or supply chain may impact our ability to fulfill an order. We, therefore, reserve the right to cancel any order if we are, for any reason, unable to fulfill the order requirements. If we are unable to fulfill an order, we will notify you by email.
5.0 Shipping and Return Policy
5.1 Domestic Shipping Policy
5.1.1 Shipping Processing Time
188.8.131.52 All orders are generally processed within 2-3 business days provided the processing bank approves your merchant service application and there are no other delays. Processing time and the timing of shipments, therefore, cannot be guaranteed. Orders are not shipped or delivered on weekends or holidays.
184.108.40.206 If we are experiencing a high volume of orders or shortages in the supply chain, shipments may be delayed by a number of business days. Please allow additional days for delivery. If it is anticipated that there will be a significant delay in the shipment of your order, we will contact you via email or telephone.
5.1.2 Shipping Rates & Delivery Estimates
220.127.116.11 Shipping charges for your order will be calculated and displayed at checkout and are calculated based on weight and shipping destination.
* Overnight delivery is only available for orders with delivery addresses within the continental USA.
Delivery delays can occasionally occur. When your order ships, a tracking number should be provided.
5.1.3 Shipping to P.O. boxes or APO/FPO Addresses
18.104.22.168 POSTRON does not ship to APO/FPO/DPO addresses.
5.1.4 Shipping Confirmation & Order Tracking
22.214.171.124 You will receive a Shipment Confirmation email once your order has shipped containing your tracking number(s). The tracking number should be active within 24 business hours.
126.96.36.199 POSTRON (postron.com) is not liable for any products damaged or lost during shipping. If you receive your order and it is damaged, please contact the shipping carrier to file an insurance claim.
188.8.131.52 Please save all packaging materials and damaged goods before filing a claim.
5.1.6 No Overseas Shipping
184.108.40.206 POSTRON POS Devices, Software, and Services are offered only in the USA and, thus, cannot be used in, or serviced, in any location outside the USA. POSTRON POS Devices will not be shipped outside the USA.
6.0 End-User Agreement
6.1 Our POS Device is specifically designed for POSTRON Merchants. We reserve the right to refuse service, sell, and ship any product to you if we have reason to believe you are not a POSTRON Customer. Likewise, Customer support is only available to the original hardware purchaser and any approved transferee owner as delineated herein below.
7.0 Available On-Site Services
7.1 POSTRON provides on-site nationwide repair services for its hardware and software products at Customer request and company verification. Available on-site services and rates are described below:
8.0 Merchant Restrictions and Responsibilities
8.1 Prohibitions. Merchant shall not allow anyone to: (1) modify or develop derivative versions based on the Device, Software, or Services; (2) allow access to any person, other than those involved in Customer’s business operations, to any POSTRON Device or POS Software; (3) copy or redistribute the Device or POS Software; (4) remove, obscure or modify any trademark, copyright, or any other proprietary notices or any aspect contained on, or in, our Device or POS Software; (5) reverse engineer our Device or POS Software; or (3) otherwise tamper with the Device, Software or Services for any purpose or effect whatsoever, including without limitation duplicating or developing a similar product, software or service.
8.2 Use of POSTRON Device. Merchant shall agree to use only our POS software to operate our Device. No other software, program, or app may be used in place of our POS Software.
8.3 Compliance With Laws. Merchant shall comply with all applicable local, city, county, state, national, federal and foreign laws and regulations in connection with the use of our Device.
8.4 Cooperation. Merchant shall have the affirmative duty to fully cooperate and act in the utmost good faith to work with, and provide assistance to, POSTRON so as to enable POSTRON to deliver to Customer the implementation and use of the POS Software and Services, and to resolve any issues arising from Merchant’s usage thereto.
8.5 Acts of Merchant and their Agents. Merchant shall be solely responsible for the act(s) and omission(s) of any of its employees, personnel, agents, independent contractors, and any other individual or party in direct or indirect connection with Merchant, including without limitation the misuse of our Device, Software and Services.
8.6 Unauthorized Use. In the event that the Device is used in any manner inconsistent with this Agreement, the Merchant shall: (1) notify POSTRON immediately of any unauthorized use of the Device, Software or Services or any other known or suspected breach; (2) report to POSTRON immediately all reasonable efforts that Merchant used to stop said unauthorized use of the Device, Software or Services that is known or suspected by Merchant.
8.7 License from Customer. Merchant shall grant to POSTRON a non-exclusive and non-transferable license, to copy, store, analyze, organize, display, use and/or transmit Customer content in conjunction with the Services herein.
8.8 Ownership and Restrictions. Subscriber shall retain its ownership and proprietary rights in its customer content.
8.9 Customer Security and Responsibility. Customer is responsible for maintaining the security of its network and system at all times. Accordingly, should POSTRON incur any harm or damages as a result of any cyber attack by any party as a direct or indirect result of Company’s act(s) or omission(s), Customer shall be fully responsible to compensate POSTRON for said injuries. Should there be any dispute as to the amount owed by Customer to POSTRON, the dispute resolution mechanism delineated below shall govern. A cyber attack is any means for inflicting harm upon any network, computer, computer system, computer software program, or any other electronic hardware, software, or any system, including, without limitation, any unauthorized access to, or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network, or to breach security or authentication measures including, without limitation, hacking, virus, malware, phishing, ransomware, and denial-of-service.
8.10 For POSTRON POS Services to operate and function as intended, other hardware and software from third party providers are incorporated and used therein. By using POSTRON POS Services, Customer agrees to all other end user license agreements and terms of service, and any other agreement reasonably necessary for POSTRON’s POS Services to operate and function properly, and all said agreements and terms of service are incorporated by reference herein.
9.0 Termination of Agreement
9.1 POSTRON may terminate the Agreement by providing notice to Merchant at least thirty (30) calendar days before the planned termination.
9.2 Upon termination of the Agreements, POSTRON shall terminate all usage rights granted to Merchant under this Agreement. This includes the use of all POSTRON POS Devices, Software and Services.
9.3 Merchant likewise agrees to cease using the Device, Software and Services.
9.4 Except for POSTRON’s return policy that appears below, nothing in this Agreement gives Merchant the right to return the Device on the grounds that no other software, other than POSTRON’s POS Software, can be used in the POS Device.
9.5 POSTRON shall also terminate the Agreement if Customer fails to submit a required payment to POSTRON and this non-payment is not resolved within thirty (30) calendar days from the date said payment is due.
9.6 Merchant shall have thirty (30) calendar days from the date the Agreement is terminated to download/export its data that is stored in the POSTRON database provided Merchant first pays a $295.00 charge for exporting said data to POSTRON. Said payment must be received by POSTRON with said thirty (90) calendar period.
10.1 POSTRON recognizes that upon the purchase of any POSTRON POS Device, the purchasing party has ownership over the item(s) it purchased. However, POSTRON and their partners retain ownership over the proprietary technologies and patents contained in the Device, Software and Services. To this end, the POSTRON POS Device(s) and Softwareis transferable, provided that POSTRON approves the transfer in writing before any agreement to transfer takes place.
10.2 Procedure for Transfer. If the current Transferor owner (the “Transferor”) finds a party willing to continue the use of the POSTRON POS Device, Software and Services, the Transferor must apply for an ownership change in writing by completing POSTRON’s ownership change form which is available from POSTRON by calling 833-767-8766. The new Transferee owner (“Transferee”) must also enter into an agreement to use the POSTRON POS Device, Software and Services. The Transferee shall be charged a one-time setup fee of $195, which is subject to change without notice, for the POS Software . The Transferee would not need to pay POSTRON for the POS Device(s).
10.3 Only the POS Device(s) can be transferred between owners. POSTRON Software, Services and Merchant Services are non-transferrable.
11.0 Returns and Refunds
11.1 In order to initiate a return of any Device, Merchant must first contact POSTRON. POSTRON will then provide Merchant with a Return Form. Merchant must complete, sign and return said Return Form to POSTRON; and POSTRON must physically receive the Device no later than thirty (30) days from the date of Merchant’s original receipt of the Device (“Return Window”) in order for Merchant to qualify for a refund. There are no exceptions.
11.2 Merchant is required to return any Device in its original packaging. Please save all of the original packaging when you receive your POS Device.
11.3 Merchant must use the return shipping label that is sent along with the Device in the original shipment. If Merchant does not use this return shipping label (“Return Shipping Label”), that it shall bear all shipping costs related to the return of the Device. Please note that the Return Shipping Label has insurance coverage. POSTRON will not issue any replacement shipping label to Merchant.
11.4 Merchant must return the Device in its original, or in replacement, packaging as explained above. Merchant shall not receive a refund if: (1) Merchant fails to return the hardware in its original condition; (2) Merchant fails to return the hardware and in its original, or replacement, packaging; (3) if the Device sustains any damage during shipping; or (4) if the Device is not returned within the Return Window. It is highly recommended that Merchant purchase insurance commensurate with the replacement value of the Device along with the shipping service in order to cover any damage that the hardware may sustain during transport should Merchant not have or use the Return Shipping Label. Should Merchant not purchase said insurance, then it shall be entirely responsible for any damage to the Device up to and including the replacement cost of such Device.
11.5 Once POSTRON has received the returned Device in a condition acceptable to POSTRON within the Return Window, POSTRON shall issue a refund payable to Merchant.
12.0 Limitation of Liability
12.1 POSTRON shall not accept, and hereby disclaims, any and all liability for the purchase, use or return of any POS Device or any other product or anything related to the use of POSTRON POS Services beyond the remedies as set forth herein, including, but not limited to, any liability for any Device, product or POS Services not being available for use, lost profits, loss of business, the loss of any data or software, the corruption of any data or software, any matters related thereto, or any issue having to do with services and support. POSTRON will not be liable for any consequential, special, indirect or punitive damages, even if advised of the possibility of such damages or for any claim by Customer or any directly or indirectly related third party. By executing this Agreement, Customer hereby agrees that POSTRON will not be liable or responsible for any liability or damages related to the use of a POSTRON Device, any other product or anything related to the use of POSTRON POS Services above the amount invoiced for the POSTRON Device. In the event that some jurisdictions may not enforce all of these limitations, only the limitations that are lawfully applied to you in your jurisdiction will apply.
13.1 All Devices, POS Software and Services are sold “As-Is” without any warranty or condition of any kind from POSTRON, express or implied, including those relating to the accuracy or completeness of information, warranties of merchantability, fitness for a particular purpose, title, non-infringement, and those arising from a course of dealing, usage, or trade practice. It is up to you to take any and all precautions to ensure your use is free of any and all harmful electronic items, including without restriction, viruses, worms, bugs, trojans, malware, spyware and ransom ware.
13.2 We sell a combination of our own and third-party hardware and/or software to create our POS Devices.
13.3 Special Warranty Notices:
13.3.1 The warranty is based on the original unit’s fulfillment date. Nothing, except a writing signed by POSTRON, shall extend the 1-year warranty on the hardware of the POS Device.
13.3.2 This warranty covers defects in manufacturing discovered while using the product as recommended by the manufacturer. The warranty does not, however, cover any damage or any adverse effect caused by any misuse, neglect, negligence, abuse, unauthorized modification, improper storage conditions, electrical issues, lightning, a natural event or disaster, a local or wider pandemic, or Act of God.
13.3.3 All third-party products resold by us are covered by their original manufacturers’ warranties. Merchant may check with the manufacturer directly for further information.
14.1 If a third party makes a claim against POSTRON relating to any and all of Merchant’s practices, including, but not limited to, privacy information, overcharges, fraudulent uses, patent, copyright or trademark infringement, or any misappropriation of any trade secrets, Merchant shall defend POSTRON, its directors, officers, employees, agents, and any related parties at Merchant’s sole expense. Merchant shall pay all losses, damages, expenses, attorney’s fees, judgments, and costs incurred by POSTRONarising from such a claim. POSTRON shall have the complete right to select and retain its own legal counsel with respect to the third party claim at Merchant’s sole expense. Customer must retain and pay for POSTRON’s selected legal counsel at the outset of any such legal matter.
15.1 If any provision of this Agreement is found to be unlawful or unenforceable in any respect, the arbitrator as explained below shall reform such provision so as to render it enforceable (or, if it is not possible to reform such provision so as to make it enforceable, then delete said provision). This Agreement ss so reformed, modified or deleted, shall be fully enforced.
16.1 This Agreement is fully integrated. There are no further representations, warranties, or guarantees made aside from what are contained in this Agreement. This Agreement fully and entirely supercedes any and all prior agreements and understandings, if any, between the parties. No changes to this Agreement can be made except in a writing signed by both parties. Merchant and POSTRON agree that POSTRON may change the Device usage and service terms at any time without notice. POSTRON will make good faith efforts to notify the Merchant of any changes by email.
17.0 Choice of Law
17.1 Any dispute that arises out of this agreement shall be determined pursuant to the laws of the State of California.
18.1 Any dispute that arises out of this Agreement or between the parties shall be determined by mediation and, if such mediation does not result in a resolution of the dispute, by binding arbitration. Both mediation and binding arbitration, if necessary, shall be administered by and before Judicate West in Santa Ana, CA. Should any party improperly bring a dispute into a court-of-law, then the responding party shall file a motion to dismiss and compel arbitration. The party filing such a motion shall be entitled to all costs incurred for such a filing, including all filing, processing, and service expenses; and attorney’s fees. Although the initial costs of mediation and arbitration before Judicate West shall be shared by the parties equally (50/50), the arbitrator shall thereafter award costs and attorney’s fees to the prevailing party. The arbitrator upon reaching a final award shall explain the reasons for said decision. Should Judicate West or its Sana Ana, CA venue be unavailable for any reason whatsoever, the parties hereby agree to the following in this order: selecting another Judicate West venue which is closest to POSTRON; using JAMS for mediation and arbitration in a venue closest to POSTRON; using AAA for mediation and arbitration in a venue closest to POSTRON; and using another alternate dispute provider for mediation and arbitration in a venue closest to POSTRON. Any final determination by binding arbitration may be enforced by a Court having competent jurisdiction.
19.0 Attorney Fees and Costs
19.1 In any action brought under this Agreement, the prevailing party shall be entitled to recover its actual costs and attorney's fees, plus all actual costs and attorney's fees incurred in connection with the enforcement of a decision or judgment arising from that action or proceeding. The provisions of the preceding sentence shall be severable from the provisions of this Agreement and shall survive the entry of any such judgment.
20.0 BY CHECK THE “I AGREE" BOX, the undersigned represent that each has read the foregoing Agreement and fully understand and agree to each and all of the terms and conditions set forth herein and agree to be irrevocably bound thereto.