Terms of Service

The use and access to the Services is only offered to you on condition that you read and accept these terms and conditions. This Agreement describes Figment POS’s obligations as service provider and your obligations as the customer. If you register for a free trial of our Services, this Agreement will also govern that free trial. BY CLICKING “ACCEPT” AT THE END IF THIS AGREEMENT OR BY INSTALLING, ACCESSING, OR USING ANY PART OF THE SERVICES YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND ITS TERMS AND CONDITIONS, AND THAT YOU AGREE TO BE BOUND LEGALLY BY IT AND ITS TERMS AND CONDITIONS.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its Affiliates. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS IN THIS AGREEMENT, YOU MUST NOT CLICK “ACCEPT” AT THE END OF THIS AGREEMENT AND MAY NOT USE ANY OF THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

FIGMENT shall retain the ownership of this copy of FIGMENT 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.

This Agreement was last updated on 1 April, 2019. It is effective between You and Us as of the date of You accepting this Agreement. Your use of the Services is subject to the most current version of this Agreement at the time of such use.

Definitions & Interpretation

In this Agreement the following words have the following meaning:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means this subscription agreement.

“Beta Services” means Our services that are not generally available to customers.

“Confidential Information”
includes all information (including Intellectual Property Rights) exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Services but does not include information that is, or becomes, publicly available other than through unauthorised disclosure by the other party.

“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, and any other intellectual and proprietary rights.

“Figment POS Material” means all and any documents provided by Figment POS and includes without limitation; the Software, any videos, user manuals, user guides, help and training material, as updated from time to time, accessible via the Website or login to the applicable Service.

“Non-Figment POS Applications” means a web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You.

“Services” means the products and services (including the Software as a service) that are ordered by You under a free trial or subscribed to under a Subscription Plan and made available online by Us via the Website, including associated offline components as described in Figment POS Material. Services exclude Non-Figment POS Applications.

“Non-Figment POS Applications” means a web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You.

“Software” means Figment POS software and associated documentation, including without limitation; any mobile and tablet applications related to the Services, content files, drivers, patches, or fonts.

“Subscription Fee” means the means the monthly fee (excluding any taxes and duties) payable by You (which We may change from time to time on notice to You) with respect to the specific Subscription Plan You have selected to subscribe too.

“Subscription Plan” means the plans available to subscribe to and may vary with respect to available Services and Subscription Fee.

“We, Us, Our, Figment POS” means FigmenTech Ltd.

“Website” means the Internet site at the domain www.figmentpos.com or any other site operated by Us through which You can access the Services.

“You” or “Your” means the person who registers to use the Service, and, includes any entity on whose behalf that person registers to use the Service.

“Your Data” means data inputted by You or with Your authority into the Website.

No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of all or any part of this Agreement.

Free Trial

When you agree to a free trial, We will make one or more Services available to You on a trial basis free of charge for the period for which You agreed to use the applicable Services.

Any data you enter into the services, and any customizations made to the services by or for you, during your trial will be permanently lost unless you purchase a licence to the same services as those covered by the trial, purchase upgraded services, or export such data, before the end of the trial period. You cannot transfer data entered or customizations made during the trial to a service that would be a downgrade from that covered by the trial; therefore, if you purchase a service that would be a downgrade from that covered by the trial, you must export your data before the end of the trial period or your data will be permanently lost.

Please review the document named Figment POS User Manual during the trial period so that You become familiar with the features and functions of the Services before You decide to the licence.

Beta Services

From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import.

Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms.

Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time at Our sole discretion and may never make them generally available.

Use of Services

Pursuant to this Agreement, We grant You a non-exclusive, non-transferrable, revocable right to:

• access and use the Services according to your licence type; and

• access the Services on the terms and conditions set out in this Agreement; and

• access the Services strictly in accordance with the provisions of this Agreement.

The Services may not be copied, modified or used in any way not contemplated or expressly authorised by this Agreement.

You are not granted any other rights or licence to use the Services.

As part of the Services We may automatically download and install Software updates. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new Software modules, and completely new versions. You agree to receive such updates (and permit Us to deliver these to You with or without your knowledge) as part of Your use of the Services.

You are responsible for obtaining and maintaining any equipment or ancillary services needed to access mobile and tablet applications and You are responsible for all applicable taxes and fees incurred while accessing such applications (such as fees from Your mobile carrier, overage charges, etc.)

In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Us. If You still need technical help, please check the Figment POS User Manual and other support provided on the Website or failing that, email us at [email protected].

Subscription and Fees

Services are purchased as a perpetual licence unless otherwise agreed in writing with You.

After any applicable trial period You are not entitled to access the Services until the licence has been paid.

Every month We will bill your credit card or deduct by direct debit from Your nominated bank account the Subscription Fee plus any applicable tax.

Your monthly subscription to Your Subscription Plan is automatically renewed, unless you cancel. The Subscription Fee is subject to change, but we will notify you at least 30 days before any increase in the Subscription Fee.

You can cancel Your subscription at any time.

Credit Card Processing Terms and Conditions

FIGMENT currently does not support Credit Card Processing and the licensee ACKNOWLEDGES AND AGREES that using any form of Credit Card Processing is at its own risk.

Non-Figment POS Providers

We, or third parties, may make available third-party products or services, including, for example, Non-Figment POS Applications and implementation and other consulting services. Any acquisition by You of such non-Figment POS products or services, and any exchange of data between You and any non-Figment POS provider, is solely between You and the applicable non-Figment POS provider. We do not warrant or support Non-Figment POS Applications or other non-Figment POS products or services.

If You install or enable a Non-Figment POS Application for use with a Service, You grant Us permission to allow the provider of that Non-Figment POS Application to access Your Data as required for the interoperation of that Non-Figment POS Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-Figment POS Application or a non-Figment POS provider.

The Services may contain features designed to interoperate with Non-Figment POS Applications. To use such features, You may be required to obtain access to Non-Figment POS Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-Figment POS Applications. If the provider of a Non-Figment POS Application ceases to make the Non-Figment POS Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.

You agree that we are not responsible for the availability or contents of any website or service we do not operate.

Order Cancellation Policy

Process refunds for payments directly from Figment app or your online Figment Dashboard.

All refunds must be processed within 90 days of the payment date. When you issue a refund, your customer will be refunded their full purchase amount, and you will be refunded Figment’s processing fee.

Privacy

We maintain a privacy policy that sets out how We use, collect and store personal information. You should read Our privacy policy at https://figmentpos.com/privacy-policy/ the Figment POS Privacy Policy). You agree to Our use of Your Data in compliance with the Figment POS Privacy Policy to the extent Your Data includes Information as defined in the Figment POS Privacy Policy. You agree and understand that Your Data will be stored on servers in the cloud and as such may be transferred to other countries.

You agree to use, collect and store personal information and data in accordance with all applicable privacy and data protection laws, including but not limited to applicable local laws in the country or region where You reside or use the Service.

Confidentiality

Unless the relevant party has the prior written consent of the other or unless required to do so by law:

each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement.

neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.

Each party’s obligations under this clause will survive termination of this Agreement.

The provisions of clause 8.1 shall not apply to any information which:

• is or becomes public knowledge other than by a breach of this clause;

• is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

• is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

• is independently developed without access to the Confidential Information.

Intellectual Property

You retain all ownership and Intellectual Property Rights in and to Your Data.

We or Our licensors retain all ownership and Intellectual Property Rights in and to the Services, including the Software, Website and Figment POS Material and derivative works thereof and to anything developed or delivered by or on behalf of Figment POS or its Affiliates under this Agreement and to any functions that are in development and Beta Services that may not be available to You.

Except as expressly provided in this Agreement, We and Our licensors do not grant any express or implied rights to use the Services (including the Software, Website and Figment POS Material). All rights, title, and interest in the Service (including the Software, Website and Figment POS Material), in all languages, formats, and media throughout the world, are and will continue to be the exclusive property of Us and/or Our licensors and nothing in this Agreement shall be construed to confer any license or right, by implication, estoppel or otherwise, under copyright or other Intellectual Property Rights, to You or any third party.

You have no obligation to provide Us with ideas, suggestions or proposals (Feedback). However, if You submit Feedback to Us, We may use it for any purpose without compensation to You.

Your Data

You agree that We retain the right to limit Your file size, storage space, processing capacity, and similar limits described in the Figment POS Material accompanying the Services. We may require You to delete Your Data until You are within the storage space limit associated with Your account.

You agree that You, not Us, are entirely responsible for all of Your Data. You assume all risks associated with Your Data, including any reliance on its accuracy, completeness, or usefulness.

You must maintain (backup) copies of all Your Data inputted into the Service. We expressly excludes liability for any loss of Your Data no matter how caused.

Shipping Costs

Customer assumes all costs in shipping to us, and we assume the cost of shipping back to the customer. All replacement/repaired products are shipped via a 3-6 working day service unless a rush is requested. The cost of such a shipping upgrade is to be requested and paid by the customer prior to shipment.

Your Obligations

You hereby undertake the following:

• to not modify, adapt, translate or reverse engineer any portion of the Services.

• to supervise and control the use of the Services in accordance with this Agreement;

• to ensure Your employees, subcontractors and other agents who have access to the Services are made aware of the terms and conditions in this Agreement.

• to not provide or otherwise make available the Services or any part thereof in any form to any person other than those referred to in paragraph (c) without Our written consent;

• to not use the Services or any part thereof for any purpose that is unlawful or prohibited by this Agreement or any other law or statute.

• to not use the Services or any part thereof in any manner that could damage, disable, overburden, or impair Us, or the network(s) connected to any of Our servers, or interfere with any other party’s use and enjoyment of the Services.

• to not attempt to gain unauthorized access to any computer systems or networks connected to the Services through any unauthorized means.

• to not use the Services to defraud, defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.

• to not use the Services to publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.

• to not upload or incorporate into the Services in any way, any malicious software or code.

• to not create any false identity or use the Services to harvest personal information of any other user of the Services for any purpose.

• to provide Us with current, complete and accurate information as prompted by the applicable registration form, if the Services requires You to open an account.

• to maintain the confidentiality of any password and username if you are given or you choose a password and username for an account.

• to notify Us immediately of any unauthorized use of Your account or any other breach of security. You acknowledge and agree that We and Our Affiliates will not be liable for any loss that you may incur as a result of someone else using Your password or account, either with or without Your knowledge.

• to not defraud, defame, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;

• to comply with all data protection, privacy, spam, telemarketing and unsolicited contact laws and rules applicable to the personal information (such as names and email addresses) that You collect, receive, have access to or submit in connection with the Services.

• to not infringe any Intellectual Property Right or other proprietary right of Us, Our Affiliates or any third party;

• to not create or permit to exist a security interest over the Services or any part thereof or in any modifications to, or enhancements, updates or new releases of it. For the purposes of the foregoing, “security interest” means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which, in substance, secures the payment of money or the performance of an obligation, or that gives a creditor priority over unsecured creditors.

• to ensure that that storage of and access to Your Data will comply with laws applicable to You (including any laws requiring you to retain records).

You are responsible for any costs associated with Your access to or use of the Services, including Internet access fees.

It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.

You are solely responsible for complying with all applicable accounting, tax and other laws and regulations.

You agree to use the Services in compliance with all applicable laws, including local laws of the country or region in which You reside or which you download the Software or use the Services.

Our Representations and Disclaimers

We will make the Services available to You pursuant to this Agreement and the applicable Subscription Plan that You subscribe to.

We will perform the Services in a professional manner in accordance with the Figment POS Material.

We intend, but do not warrant, that the Services to which You subscribe will be available 24 hours a day, 7 days a week. The foregoing intention does not apply to:

• Services or any part of the Services that may be unavailable to permit maintenance or other development activity to take place. If for any reason We have to interrupt the Services for longer periods than We would normally expect, We will use reasonable endeavours to publish in advance details of such activity on the Website; and any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Our employees), Internet service provider failure or delay, Non-Figment POS Application, or denial of service attack.

WE DO NOT GUARANTEE THAT:

• THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WE WILL CORRECT ALL SERVICES ERRORS;

• THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR DATA, CONTENT OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY US; AND

• THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS.

Your Representations and Warranties

You warrant that where You have registered to use the Service on behalf of another person or entity, You have the authority to agree to this Agreement on behalf of that person or entity and agree that by registering to use the Service You bind the person or entity on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of this Agreement, without limiting Your own personal obligations under this Agreement.

You represent and warrant that Your Data does not violate or infringe any Intellectual Property Right or other proprietary right, including right of publicity or privacy, of any person, company or entity, or other third party.

Your Acknowledgements

YOU ACKNOWLEDGE THAT:

• prior to subscribing to the Services You have been given a reasonable opportunity to examine and satisfy Yourself regarding all goods and services which are the subject of this Agreement, including the Services and that You have availed Yourself of that opportunity;

• at no time prior to entering into this Agreement have You relied on Our skill or judgment and that it would be unreasonable for You to rely on any such skill or judgment; andwhere any acquisition of goods under this Agreement has been made by reference to a sample or demonstration model, prior to subscribing to the Services You have been given a reasonable opportunity:(i)    to satisfy Yourself that the goods correspond with the sample or demonstration model as to quality, state and condition; and(ii)   to examine the sample or demonstration model for any apparent defects, and that You have availed Yourself of that opportunity.

• THE SERVICES CANNOT BE GUARANTEED ERROR FREE AND FURTHER ACKNOWLEDGES THAT THE EXISTENCE OF ANY SUCH ERRORS SHALL NOT CONSTITUTE A BREACH OF THIS AGREEMENT. For example, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. We are not in any way responsible for any such interference or prevention of Your access or use of the Services.

Your Representations and Warranties

You warrant that where You have registered to use the Service on behalf of another person or entity, You have the authority to agree to this Agreement on behalf of that person or entity and agree that by registering to use the Service You bind the person or entity on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of this Agreement, without limiting Your own personal obligations under this Agreement.

You represent and warrant that Your Data does not violate or infringe any Intellectual Property Right or other proprietary right, including right of publicity or privacy, of any person, company or entity, or other third party.

Legal Disputes, Limitation and Exclusion of Liability

No exclusion or limitation where contrary to law

Nothing in this Agreement operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under any statute, regulation or law (including the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 20120 (Cth)) where to do so would:

(i)    contravene that statute, regulation or law; or

(ii)   cause any term of this Agreement to be void, unenforceable or a nullity

(Non-excludable Obligation).

To the extent that any part of this Agreement may contravene any such statue, regulation or law or render any part of this Agreement void, unenforceable or a nullity, this Agreement shall operate as if the part did not exist but otherwise this Agreement shall be effective.

Despite the foregoing and except in relation to Non-excludable Obligations, BETA SERVICES AND DURING ANY FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

IN RELATION TO NON-EXCLUDABLE OBLIGATIONS (OTHER THAN A GUARANTEE AS TO TITLE, ENCUMBRANCES OR QUIET POSSESSION CONFERRED BY THE AUSTRALIAN CONSUMER LAW), EXCEPT FOR GOODS OR SERVICES OF A KIND ORDINARILY ACQUIRED FOR PERSONAL, DOMESTIC OR HOUSEHOLD USE OR CONSUMPTION (IN RESPECT OF WHICH OUR LIABILITY IS NOT SO LIMITED UNDER THIS PARAGRAPH(C)), OUR LIABILITY TO YOU FOR A FAILURE TO COMPLY WITH ANY NON-EXCLUDABLE OBLIGATION IS, AS DETERMINED BY US, LIMITED TO:

(i)    IN THE CASE OF SERVICES, THE COST OF SUPPLYING THE SERVICES AGAIN OR PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN; AND

(ii)   IN THE CASE OF GOODS, THE COST OF REPLACING THE GOODS, SUPPLYING EQUIVALENT GOODS OR HAVING THE GOODS REPAIRED, OR PAYMENT OF THE COST OF REPLACING THE GOODS, SUPPLYING EQUIVALENT GOODS OR HAVING THE GOODS REPAIRED.

IN RELATION TO NON-EXCLUDABLE OBLIGATIONS (OTHER THAN A GUARANTEE AS TO TITLE, ENCUMBRANCES OR QUIET POSSESSION CONFERRED BY THE AUSTRALIAN CONSUMER LAW), EXCEPT FOR GOODS OR SERVICES OF A KIND ORDINARILY ACQUIRED FOR PERSONAL, DOMESTIC OR HOUSEHOLD USE OR CONSUMPTION (IN RESPECT OF WHICH OUR LIABILITY IS NOT SO LIMITED UNDER THIS PARAGRAPH(C)), OUR LIABILITY TO YOU FOR A FAILURE TO COMPLY WITH ANY NON-EXCLUDABLE OBLIGATION IS, AS DETERMINED BY US, LIMITED TO:

EXCLUSION OF IMPLIED OBLIGATIONS

EXCEPT IN RELATION TO NON-EXCLUDABLE OBLIGATIONS, ALL CONDITIONS, WARRANTIES, GUARANTEES, RIGHTS, REMEDIES, LIABILITIES OR OTHER TERMS THAT MAY BE IMPLIED BY CUSTOM, UNDER THE GENERAL LAW OR BY STATUTE ARE EXPRESSLY EXCLUDED UNDER THIS AGREEMENT.

LIMITATION AND EXCLUSION OF LIABILITY

EXCEPT IN RELATION TO NON-EXCLUDABLE OBLIGATIONS, MEZA, ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS (COLLECTIVELY REPRESENTATIVES) LIABILITY TO YOU, WHETHER ARISING DIRECTLY OR INDIRECTLY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT AND WHETHER ARISING UNDER ANY INDEMNITY, STATUTE, IN TORT (FOR NEGLIGENCE OR OTHERWISE), OR ON ANY OTHER BASIS IN LAW OR EQUITY, IS LIMITED AS FOLLOWS:

(i)    EXCLUDES ALL LIABILITY FOR LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF OR DAMAGE TO REPUTATION, PUNITIVE DAMAGES, LOSS OF ANTICIPATED SAVINGS OR BENEFITS, OR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL LOSS, DAMAGE, COST OR EXPENSE OR OTHER CLAIMS FOR CONSEQUENTIAL COMPENSATION, INCURRED BY YOU UNDER OR IN ANY WAY CONNECTED WITH THIS AGREEMENT;

(ii)   EXCLUDES ALL LIABILITY IN RESPECT OF LOSS OR DAMAGE CAUSED BY ANY MATTER BEYOND MEZA AND ITS AFFILIATE’S REASONABLE CONTROL;

(iii)  THE TOTAL AGGREGATE AMOUNTS ACTUALLY PAID TO MEZA FOR THE SERVICES UNDER THIS AGREEMENT THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

Termination

Termination by You

You may stop using the Service at any time by contacting Us to have Your subscription cancelled, if applicable, and content deleted. Any Subscription Fees paid by You prior to Your termination are not refundable. Termination of Your Subscription Plan shall not relieve You of any obligation to pay any accrued charges or fees, including Subscription Fees.

Termination by Us

We may at any time terminate Our Agreement with You if:

(a)You have breached any provision of this Agreement (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with any of the terms of conditions of this Agreement);

(b)We are required to do so by law (for example, where the provision of the Services to You is, or becomes, unlawful);

(c)the provision of the Services to You by Us is, in Our opinion, no longer commercially viable; or

(d)We have elected to discontinue the Services or any part thereof.

Consequences of Termination.

Termination of Your subscription will result in:

(a) removal of access to all offerings within the Services;

(b) deletion of Your Data and account information, including Your personal information, log-in ID and password, and all related information, files, and materials associated with or inside Your account (or any part thereof). [We shall make reasonable effort to notify You at least thirty (30) days prior to termination, at the email address You provide Us as part of Your registration, with instructions on how to retrieve Your Data prior to such termination]; and

(c) barring of further use of the Services.

You agree that all terminations for cause shall be made in Our sole discretion and that We will not be liable to You or any third party for any termination of Your Subscription Plan (and accompanying deletion of Your account information), or access to the Services, including Your Data.

Upon expiration or termination of this Agreement, You shall promptly discontinue use of the Services. However, any perpetual licenses You have granted, any of Your indemnification obligations hereunder, any of Our disclaimers or limitations of damages or liabilities hereunder, will survive any termination or expiration of this Agreement.

If You fail to pay Your Subscription Fee when due, We may in Our sole discretion (and without prejudice to Our rights) decide to suspend the Services to You for a period of time (as decided by Us in Our sole discretion) before terminating Our Agreement with You if You continue to fail to pay the outstanding Subscription Fee(s).

If the Services are terminated by either You or Us, You agree to settle within 7 days if the date of termination Your account and make payable any and all monies (including Subscription Fees) due to Us, either for Services rendered or hardware (including but not limited to; any printers, tablet computers, cash drawers or any other devices supplied to You by Us. Any hardware or devices supplied by Us remain Our property until such time as You have paid for them in full. We therefore reserve the right to claim back any devices not paid for without refunding any moneys paid to Us for the aforementioned devices.

General

Entire Agreement

This Agreement constitutes the entire Agreement between You and Us, governs Your use of the Services and the other matters dealt with in this Agreement and completely replaces any prior agreements between You and Us in relation to the Services. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. In the event of a dispute between the English and any non-English versions of this Agreement, the English version of this Agreement shall govern, to the extent not prohibited by local law in Your jurisdiction.

Delays

Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.

Assignment

The benefit of these terms will not be dealt with in any way by the Subscriber whether by assignment, sub-licensing or otherwise without Figment POS’s written consent.

Waiver

Failure by Us to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

Assignment

The benefit of these terms will not be dealt with in any way by the Subscriber whether by assignment, sub-licensing or otherwise without Figment POS’s written consent.

Class Action Waiver

Any dispute resolution proceeding, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action, unless both You and Figment POS specifically agree to do so in writing following initiation of the relevant procedure. This provision is not applicable to the extent such a waiver is prohibited by law.

Controlling or Governing law, Jurisdiction and Court Proceedings

(a) This Agreement will be governed and construed according to the laws of the State of New South Wales, Australia as if performed wholly within Australia, without giving effect to the principles of conflict of law. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods.

(b) The parties shall attempt amicably to resolve any controversy, dispute or difference arising out of this Agreement, failing which either party may initiate litigation only in the exclusive jurisdiction of, and venue in, the courts in Sydney, Australia in any dispute arising out of or relating to this Agreement. The parties submit to personal jurisdiction in said courts and waive any defences regarding venue or forum non conveniens. Notwithstanding the foregoing, either party may seek appropriate injunctive or other interlocutory relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s Intellectual Property Rights, to preserve property or rights or to avoid losses that are not compensable in damages.

(c) SUBJECT TO CLAUSE 15.1, ANY CLAIM AGAINST ANY OF MEZA, ITS AFFILIATES OR ANY OF THEIR REPRESENTATIVES MUST BE MADE IN WRITING AND WITHIN 3 (THREE) YEARS AFTER THE SERVICES HAVE BEEN PERFORMED.

(d) Nothing in this clause limits the rights each Party has to terminate this Agreement.

(e) You are solely responsible for Your familiarity and compliance with any laws that may prohibit You from participating in or using any part of the Services.

Severability

If any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision, and the remaining portions shall remain in full force and effect.

Notices

Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Figment POS must be sent to [email protected] or to any other email address notified by email to You by Figment POS for that purpose. Notices to You will be sent to the email address that You provided when setting up Your access to the Service.

Changes to this Agreement

We reserve the right at any time to modify this Agreement and to impose new or additional terms or conditions on Your use of the Services. We will notify you of any changes to this Agreement by posting notice of such changes on the Website, or by sending notice via email or postal mail. If You do not agree with them, you must stop using the Service and notify Us that You are terminating this Agreement. Your continued use of the Services will be deemed acceptance of such modifications and additional terms and conditions.

Third Party Rights

No person who is not a party to this Agreement shall be entitled to enforce or take the benefit of any of its terms.

Electronic Contracting

Your use of the Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. You consent to receive notices relating to the Services or this Agreement by email. You agree that any such notices that We send You electronically will satisfy any legal communication requirements.