These terms and conditions (the “Mynt Terms”) are hereby incorporated into the POS Agreement entered into between Custom America, Inc., dba Mynt (“we” “us” “our”) and you (the “POS Agreement”) and govern your use of the Mynt System (as defined below). We may amend the Mynt Terms at any time by posting the revised version on our website or otherwise communicating them to you (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. If you do not accept the Mynt Terms set forth in the Revised Version, you must stop use of the Mynt System immediately. Your continued use of the Mynt System after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any dispute that arose before the changes were effective will be governed by the Mynt Terms in place when such dispute arose.
- Setup Process. For every location you own or operate that utilizes one or more Mynt Systems, Mynt will help you with the setup process. The help we provide includes the following:
- Standard Support (as defined below) on the physical setup of the Mynt System, which primarily consists of unpacking and plugging in the appropriate cables.
- Menu creation or product load based on information you provide. We will, at your request, enter your menu into the Mynt System, or if you have a retail store, upload your products into the Mynt System.
- Up to two (2) hours of setup and training, specifically dedicated to get you up and running. These two hours includes approximately 30 minutes to remotely configure the Mynt System, and up to 90 minutes of training.
- The information you provide for your menu or product loads needs to be in a format that we accept. In addition, prior to scheduling the two hour configuration and training, you need to have the Mynt System set up in the appropriate location, with power and Internet already hooked up. Failure to do so may result in a reschedule and/or reduced training time. In all cases, our combined configuration and training time for the setup process will not exceed two hours unless you choose to purchase additional training.
- Support.
- We love to support you! To offer the best support to those of you who have an active POS Agreement, we have technicians standing by Monday through Friday (excluding holidays) from 9:00 am – 6:00 pm EST to answer any of your technical questions (“Standard Support”). In addition, we are available 24 hours a day, 7 days per week, 365 days per year (except leap year, when we’re here 366 days) to answer any questions that are directly related to your Mynt System being non-functional (“Mission Critical”). Mission Critical questions include anything that is keeping you from running your Mynt System and processing transactions. Support calls received outside of the Standard Support hours which are not Mission Critical, as determined by us, may incur additional fees and you authorize us to debit your account for those additional fees using our existing ACH agreement with you or other reasonable payment method as determined by us.
- Not everything that you might consider a “technical question” is included in our Standard Support. For example, system training and changes to your menu or products are your responsibility. We offer extended training beyond the initial setup process, as well as menu update services, however those will incur additional charges. Also, all of our support is limited to the Mynt System and does not extend to any of the following, even if they were recommended by us: any bundled or third party operating systems, firmware, software, third party websites, as well as any networking, electrical, or additional computer equipment such as payment terminals that are used in conjunction with the Mynt System, even if the hardware is required for the Mynt System to function.
- In addition, our Standard Support and Mission Critical availability may vary from time to time due to downtime for systems maintenance, company events, and circumstances beyond our control.
- POS Software.
- We provide Mynt branded point of sale software on each Mynt System for you to use, and we hereby grant you a non-exclusive non-sublicensable license (the “License”) to use this software and any associated documentation (collectively, the “POS Software”). The POS Software can only be installed for internal use on Hardware provided by us as part of the Mynt System, unless we give you our express written consent. We may make POS Software updates to the POS Software available to you, which you must install to continue using the Mynt System. Any such POS Software updates may be subject to additional terms.
- You MAY NOT: (a) copy and distribute the POS Software or any portion of it; (b) sublicense, lease, rent, or transfer this POS Software; (c) cause or permit reverse engineering, disassembly, decompilation or alteration of this POS Software; (d) remove any product identification, copyright notices, or other notices or proprietary restrictions from the POS Software; or (e) copy the documentation associated with the POS Software.
- This License terminates upon termination of your POS Agreement.
- The POS Software, including its operation, source and object code, architecture and implementation, are our valuable intellectual property. Title to the POS Software and all associated Intellectual Property Rights, as defined below, are retained by us; provided, however, that we disclaim any ownership rights to the third-party software, including open source software.
- The POS Software is licensed and not sold. Nothing in these Mynt Terms gives you any Intellectual Property Rights in the POS Software, other than the limited right of use set forth in the License. We reserve all rights not expressly granted.
- To the extent that there is any third party software is embedded in, bundled with, or otherwise provided in connection with the software, such third party software shall be considered part of the software and such third party software shall be used and operated solely in connection with the software and not as a standalone application or for any other purpose.
- POS Software Features and Indemnification. You acknowledge that the POS Software may contain features and functionality that may be used in ways that are contrary to certain state or federal laws. This could include, but is not limited to, functionality relating to “surcharging” or “cash-discounting”. You agree to take full responsibility for use of these features and take full responsibility for your compliance with state and federal laws, and agree to indemnify and hold us harmless for any action taken against you or us relating to your use of the Mynt System, including but not limited to legal action by a third party.
- Returns. A System purchased directly from us may be returned within 45 days of purchase with certain restrictions. The Mynt System must be in new condition with original packaging and you are responsible for shipping the Mynt System back to us. The Mynt System is subject to a 10% restocking fee for any return with a minimum restocking fee of $75. Any and all fees designated by us as setup or monthly are non-refundable. If you purchased your Mynt System through an authorized reseller, other restrictions may apply.
- Hardware Warranty. Hardware warranty service provider and length vary based on the manufacturer of each component of your point-of-sale system (POS). Visit Mynt’s website at http://www.myntpos.com/certified for warranty length of hardware components. Should all or part of your Hardware (“Mynt Part”) be found to have a manufacturing defect please refer to the manufacturer of the Mynt Part for warranty support or contact Mynt support for assistance.
- Our warranty only covers manufacturing defects and does not extend to any Mynt Part which, in our sole judgment, has been subjected to abuse, misuse, neglect, improper hardware or software installation or configuration, improper handling or storage, damage caused by natural or manmade disasters, or any damage due to, but not limited to, (a) any catastrophic event independent of the normal functioning of the hardware such as flooding or other water damage, fire, transient power surges or insufficient line voltage (brown-out) or any event characterized as an “Act of God” causing damage to the Mynt Part; (b) a software virus obtained from third party software; or (c) a failure to follow instructions contained in the Mynt Part manual or other documentation provided with the Mynt Part.
- Our warranty becomes void if (a) the housing of the Mynt Part has been opened by anyone other than our repair department or authorized repair center; (b) the Mynt Part has been modified or disassembled by anyone other than our repair department or under supervision by us; (c) the serial number of the Mynt Part has been removed or unable to be deciphered; or (d) the Mynt Part was damaged in shipping due to poor packaging.
- In all cases, we have the right to test and inspect the Mynt Part and if in our sole judgment the Mynt Part is found not to be covered under any warranty or not faulty, we may charge a fee that includes, but is not limited to, shipping and/or service fee(s), or full value of the replacement. You authorize us to charge your account via our existing ACH agreement we have with you or other reasonable payment method as determined by us. Any outstanding invoices will result in the ineligibility for future repair or replacement until outstanding invoices are paid. Our hardware warranty becomes effective on the date you purchased the Mynt System from us or one of our authorized distributors and terminates when the Mynt Part has reached the end of the part’s specified warranty length. If in our sole discretion, your Mynt Part is found to not be covered by our warranty policy, we may offer to repair or replace your unit for a fee.
- We expressly disclaim responsibility for any third party vendor’s equipment quality, equipment compatibility, or failure to integrate. The warranties stated herein specifically and solely cover our products.
- Ownership. Ownership of the Hardware passes to you upon our delivery of the Hardware to you. Ownership of the POS Software does not transfer to you at any time. Instead, you are given the License to use the POS Software as described above.
- WARRANTY DISCLAIMER. NOTWITHSTANDING ANY OTHER PROVISIONS TO THE CONTRARY CONTAINED IN THESE MYNT TERMS, THE EXPRESS WARRANTIES SPECIFICALLY SET FORTH OR INCORPORATED BY REFERENCE IN THESE MYNT TERMS ARE THE ONLY WARRANTIES WHICH APPLY TO THE GOODS AND/OR SERVICES FURNISHED BY US TO YOU, AND NO OTHER WARRANTIES WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, IMPLIED (INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AND TITLE OR NONINFRINGEMENT) OR OTHERWISE, SHALL APPLY. UNLESS OTHERWISE PROVIDED IN THESE MYNT TERMS. ANY SPECIFICATIONS ATTACHED TO OR FURNISHED WITH GOODS SOLD UNDER THESE MYNT TERMS ARE DESCRIPTIVE AND ARE NOT INTENDED AS WARRANTIES.
- Shipping Liability. We will use commercially reasonable efforts to meet any delivery date requested by you or promised by us, but in no event will we will be liable for, nor may you cancel any agreement with us, including the POS Agreement, as a result of late delivery of the Mynt System or any other items shipped to you from us. When purchasing direct from Mynt, you are responsible for paying shipping and insurance fees.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL WE, OUR SHAREHOLDERS, AFFILIATES, CONTRACTORS, SUPPLIERS AND AGENTS AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES (COLLECTIVELY THE “MYNT PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, IN RESPECT OF LOSS OF PROFIT OR REVENUE, COSTS OF DELAY, LOSS OF TIME OR INCONVENIENCE OR COSTS OF PROCURING SUBSTITUTE PRODUCTS) EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THE MYNT PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MYNT PARTIES’ TOTAL LIABILITY AND OBLIGATION IN THE AGGREGATE FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN ANY CONNECTION WITH THESE MYNT TERMS, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND, REGARDLESS OF THE CAUSE OR FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED AND SHALL NOT EXCEED THE ACTUAL AMOUNTS PAID BY YOU TO US UNDER THE APPLICABLE ORDER IN RESPECT OF THE PRODUCTS SUBJECT TO THE CLAIM. All disclaimers and limitations set forth herein shall apply regardless of the nature of any cause of action or demand (including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, tort or any other cause of action) and shall survive a fundamental breach or breaches and/or failure of the essential purpose of these Mynt Terms or any remedy contained herein.
- Governing Law & Disputes. These Mynt Terms as well as any and all POS Agreements shall be governed by the laws of the State of Delaware. The state and federal courts located in and for in and for Boothwyn, PA shall have exclusive jurisdiction for any claims arising under or related to the Mynt Terms and we both irrevocably consent to the jurisdiction of such courts. We both agree to waive all objections and defenses of jurisdiction, improper venue, or inconvenient forum. We both agree to attempt to first resolve all disputes in an informal manner prior to litigation.
- Miscellaneous. Any provision of these Mynt Terms or any POS Agreement which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision, and the remaining provisions shall nevertheless remain in full force and effect. A POS Agreement may not be assigned or transferred to any party, whether by operation of law or otherwise, without the prior consent of the other party; provided, that we may assign its rights to any affiliated company of ours, to a successor by merger, and to any purchaser of substantially all of our assets, and may collaterally assign our rights hereunder to any lender.
- Definitions.
- “Hardware” means solely the hardware provided by us as part of your Mynt System. Hardware might include a point of sale register, receipt printer, cash drawer, and/or barcode scanner, but it specifically excludes a payment terminal device, even if such device was provided by us.
- “Intellectual Property Right(s)” means all worldwide common law or statutory: (i) patents, patent applications, and patent rights; (ii) rights associated with original works, authorship, moral rights, copyrights and all its exclusive rights; (iii) rights relating to the protection of trade secrets and confidential information, (iv) rights associated with algorithms, designs, industrial designs, and semiconductor design; (v) rights related to the possession, use or exploitation of signs, trademarks, service marks, trade names, trade dress and related goodwill; (vi) rights analogous to those specified above and any and all other industrial or intellectual property rights; and (vii) registrations, divisionals, continuations, continuations-in-part, renewals, reissues, reexaminations, and extensions of the foregoing (as applicable) now existing or later filed, issued or acquired.
- “Mynt System” means a combination of both Hardware and POS Software provided by us.
- “POS Agreement” means the agreement signed by you during the purchase process of your Mynt System. POS Agreements are subject to acceptance and approval by us and no POS Agreement is final and binding unless accepted by us. An active POS Agreement is an agreement with no fees considered by us to be past due.
- “You” and “your” in uppercase or lowercase means the entity (e.g., company, corporation, partnership, sole proprietor, etc.), individual, or government agency entering into a POS Agreement with us.
