Hardware Sales Agreement

HARDWARE SALES AGREEMENT

THIS HARDWARE SALES AGREEMENT SHALL GOVERN ANY PURCHASE OF A HARDWARE PRODUCT BY CUSTOMER, AND ANY SALE AND/OR DELIVERY OF A HARDWARE PRODUCT BY PAYWORKS.

THIS HARDWARE SALES AGREEMENT SHALL NOT APPLY AND DOES NOT GOVERN ANY SALE AND/OR DELIVERY OF SOFTWARE PRODUCT OR SERVICE BY PAYWORKS. ANY SALE AND/OR DELIVERY OF SOFTWARE PRODUCT OR SERVICE TO CUSTOMER SHALL BE GOVERNED BY A SEPARATE CONTRACT BETWEEN PAYWORKS AND CUSTOMER (OR BETWEEN PAYWORKS AND A THIRD PARTY OF WHICH CUSTOMER IS A BENEFICIARY).

PLEASE READ THIS HARDWARE SALES AGREEMENT CAREFULLY. BY PURCHASING A HARDWARE PRODUCT ON THE PAYWORKS WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE LEGALLY BOUND BY ITS TERMS AND CONDITIONS.

IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THIS SALES AGREEMENT.

1) Definitions

a) “Agreement” means this Hardware Sales Agreement.
b) “Customer” means a party who purchases or otherwise receives a Hardware Product from Payworks.
c) “Hardware Product” means a payment terminal, card reader, and any other hardware product sold or delivered by Payworks, and any software loaded onto a Hardware Product before it is received by Customer. For the avoidance of doubt, Hardware Products do not include Software Products or Services.
d) “Manufacturer” means the manufacturer of a Hardware Product.
e) “Manufacturer’s Warranty” means the warranty of a Hardware Product provided by the Manufacturer of that product.
f) “Payworks” means Payworks GmbH, with an address at Dingolfingerstr. 15 81673 Munich Germany.
g) “Website” means https://eu.shop.payworks.com.
h) “RMA” means Return Merchandise Authorization.
i) “Service” means the performance of tasks, the provision of advice or assistance, or the provision of access to a resources or information by Payworks.
j) “Software Product” means computer software programs sold or delivered by Payworks, whether pre-loaded or provided separately, and related licensed materials.

2) General Terms

a) This Hardware Sales Agreement shall govern any purchase of a Hardware Product by Customer, and any sale and/or delivery of a Hardware Product by Payworks.
b) By purchasing a Hardware Product on the Website, you acknowledge that you have read this agreement, understand it, agree to be legally bound by its terms and conditions. You also agree that you have read, understand, and agree to be legally bound by the Website Term & Conditions that are available on the Website.
c) If you are accepting these terms on behalf of another person or a company or other legal entity, you represent and warrant that you have full authority to bind that person, company, or legal entity to this sales agreement.
d) This agreement is the sole and complete agreement between Customer and Payworks regarding the purchase and sale of any Hardware Product. Any additional or different terms, including without limitation those discussed between the parties or listed in any order or communication from Customer, shall not be binding on Payworks unless signed by an authorized representative of Payworks.
e) Payworks may update this Agreement or any part thereof at any time without prior notice.

3) Software and Services Sales

a) Software Products or Services cannot be purchased on the Website. Customer must contact Payworks to purchase Software Products or Services.
b) This Hardware Sales Agreement shall not apply and does not govern any sale and/or delivery of Software Products or Services by Payworks, other than software loaded onto a Hardware Product before it is received by Customer.
c) Any sale and/or delivery of Software Products or Services to Customer shall be governed by a separate contract between Payworks and Customer (or between Payworks and a third party of which Customer is a beneficiary).

4) Conditions of Sale

a) As condition to the sale and delivery of a Hardware Product by Payworks, Customer hereby warrants and agrees that:
i) Customer is a company or business entity, and is not an individual person;
ii) Customer is purchasing the Hardware Product for its own business uses and not for resale;
iii) The Hardware Product purchased and sold under this Agreement is not a “Consumer Good” as that term is defined by the Charter of Fundamental Rights of the European Union or any other law that governs this contract;

5) Visual Accuracy.

a) Payworks shall not be liable for any error or inaccuracy in the photographs or other representations of products displayed on the Website.
b) If you have any questions about the products, please contact Payworks’ support at readers@payworks.com before placing an order for Hardware Products.

6) Prices and Payment.

a) The pricings for all products on the Website are listed in Euros and, unless otherwise indicated, exclude any taxes, shipping and handling costs.
b) Payworks reserves the right to modify the prices of products offered on the Website at any time without prior notice.
c) Customer will be charged the prices displayed on the Website at the time your order was confirmed provided the goods ordered were available at this time, however, Payworks reserves the right not to accept or to cancel your order in our sole discretion for any reason without liability, including if the products are not available, are incorrectly priced or are otherwise incorrectly described.
d) Payment is due at the time an order is placed or upon receipt of invoice. Any amounts not received by Payworks within thirty (30) days of receipt of invoice shall be overdue. Customer shall pay a late payment fee of the lesser of one and one half (1.5%) percent per month or the maximum rate permitted by law on the undisputed overdue balance of the invoice amount.
e) Customer shall pay any applicable sales, use or similar taxes, fees or duties. Customer is responsible for taxes, if any, on the Hardware Product from the date Payworks ships them to Customer. No other discounts, quantity entitlements, or promotions apply unless agreed in writing by Payworks.
f) If Payworks makes an error in pricing information and/or a typographic error, Payworks may nevertheless refuse or cancel an order placed for a Hardware Product quoted at such price or described in error, even if Payworks has confirmed the receipt of Customer’s order or charged Customer’s credit or debit card. If Payworks has charged Customer’s credit or debit card, Payworks will issue a credit to Customer’s credit or debit card account in the amount of the charge.

7) Title and Risk of Loss

a) All products ordered through the Website remain the property of Payworks until full payment is tendered to Payworks. In the event of a payment dispute, Customer is required to return the products that are the subject of dispute to Payworks immediately upon request, and to assume the risks (in particular the risks of loss, theft, and damage) relating to such products.
b) Payworks shall bear the risk of loss or damage to a Hardware Product until it is delivered to Payworks’s designated carrier for shipment to Customer. Thereafter, Customer assumes risk of loss or damage of the Hardware Product.

8) Records.

a) The data collected by the Website establishes the terms of the transactions between Payworks and Customer.
b) In the event of a dispute between Payworks and Customer relating to a transaction entered into using the Website, and subject to Payworks’s right to cancel or not accept an order, the data collected by Payworks are the terms of the transaction.

9) Warranties, Limitation of Liabilities

a) Payworks hereby assigns the Manufacturer’s Warranty (if any) for the Product to Customer, to the extent such Manufacturer’s Warranty exists and is assignable.
b) THE MANUFACTURER’S WARRANTY (IF ANY, AND IF ASSIGNABLE) IS THE ONLY WARRANTY THAT SHALL BE PROVIDED BY PAYWORKS WITH RESPECT TO THE HARDWARE PRODUCT.
c) PAYWORKS MAKES NO WARRANTIES FOR THE HARDWARE PRODUCT. THE HARDWARE PRODUCT IS PROVIDED “AS IS,” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, TO THE FURTHEST EXTENT PERMITTED BY LAW, EXCEPT TO THE EXTENT (IF ANY) THAT A MANUFACTURER’S WARRANTY EXISTS AND IS ASSIGNABLE.
d) IN ANY ACTION UNDER OR RELATED TO THIS AGREEMENT, PAYWORKS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE: 1) THIRD-PARTY CLAIMS FOR DAMAGES; 2) LOSS OF, OR DAMAGE TO, DATA; 3) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES; OR 4) LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS. AS SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF SOME DAMAGES, THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO THIS AGREEMENT. EXCEPT FOR BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY. IN THE EVENT PAYWORKS IS DETERMINED BE LIABLE TO CUSTOMER, ITS LIABILITY SHALL BE LIMITED TO THE LESSER OF A); THE AMOUNT OF ACTUAL DIRECT DAMAGES SUFFERED BY CUSTOMER; OR B) THE AMOUNT CUSTOMER PAID PAYWORKS FOR THE HARDWARE PRODUCT.

10) Return of Hardware Product Covered by Manufacturers Warranty

a) In the event a Hardware Product covered by a Manufacturer’s Warranty fails to operate during the warranty period as result of a manufacturing defect, then Payworks shall facilitate return of the Hardware Product to the Manufacturer for its repair or replacement in accordance with the Manufacturer’s Warranty.
b) Payworks will not facilitate return of a Hardware Product if (i) it is not covered by a Manufacturer’s Warranty, (ii) the return is requested outside the Warranty Period, or (iii) the Hardware Product fails to operate as a result of any special software, key injections or firmware loads, or faulty accessories, cables, plugs or power supply units.
c) Payworks will charge Customer a handling fee of €25.00 for facilitating returns.
d) All requests for returns must be submitted by email, and must include:
i) Contact Information: name of Customer’s company, name of contact person at Customer’s company, phone number, email address, and purchase order number or reference number
ii) Shipping Information: address where Hardware Product should be shipped back to Customer after repair or replacement by Manufacturer,
iii) Product Information: Purchase order or reference number for the product purchase, product name, product serial number, product manufacturer, any key injection numbers
iv) Reason for Return: description of the operating issue with respect to the Hardware Product
e) If the return is approved, then Payworks shall issue an RMA to Customer.
f) After receipt of the RMA, Customer must ship the Hardware Product to the return address listed on the RMA in its original packaging, together with all accessories, user manuals and other documentation, a copy of the RMA, a copy of the invoice, and the original shipping label. The return must be received at the return address listed on the RMA within ten (10) calendar days of the date the RMA is issued.
g) Customer assumes risk of loss and damage for a Hardware Product returned without an RMA.
h) Returns may take ninety (90) days or longer. For this reason, CUSTOMERS ARE STRONGLY ENCOURAGED TO PURCHASE EXTRA HARDWARE PRODUCT UNITS TO AVOID DOWNTIME DURING THE RETURNS PROCESS.

11) Customer Information.

a) Payworks and its affiliates may store, use and process contact information and other information about Customer, including name, phone numbers, addresses, and e-mail addresses, as necessary to perform under this Agreement, including but not limited to returns service.
b) Customer information will be processed and used in connection with this Agreement and the Hardware Product and may be transferred by Payworks to any country where Payworks does business; and may be provided to entities acting on Payworks’s behalf in relation to this Agreement and the Hardware Product. Payworks may also disclose such information where required by law.

12) Force Majeure.

a) Payworks shall not be liable to Customer for any failure or delay in the performance of its obligations hereunder, to the extent such failure or delay is caused by fire, flood, earthquakes, other elements of nature; acts of war; terrorism, riots, civil disorders, rebellions or revolutions; epidemics, communication line or power failures; governmental laws, court orders or regulations; or any other cause beyond the reasonable control of Payworks.

13) No Export by Payworks.

a) Customer shall comply with the applicable export regulations.

14) Entire Agreement.

a) This Agreement constitutes the entire agreement and understanding between Customer and Payworks concerning the purchase, sale, and/or delivery of any Hardware Product.
b) This Agreement supersedes any prior or contemporaneous agreements, communications and proposals, whether oral or written, between Customer and Payworks (including, but not limited to, any prior versions of this Agreement).

15) Governing Law.

a) This Agreement and all transactions and disputes arising shall be governed by the laws of Germany, without regard to its conflict of law principles.
b) Neither party may bring an action arising out of or related to this Agreement more than two (2) years after the cause of action arose.

16) Dispute Resolution

a) Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Munich, Germany, before one arbitrator; provided that, nothing in this arbitration provision or these Terms & Conditions shall preclude Payworks for seeking injunctive relief to stop any unauthorized use of its intellectual property or Website.
b) This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

17) Miscellaneous

a) If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of shall remain in full force to the extent permitted by law.
b) No failure, forbearance, neglect or delay of any kind or to any extent on the part of Payworks in connection with the enforcement or exercise of any rights under the use terms, the sale terms, the additional terms shall affect or diminish Payworks’s ability to enforce such rights or any other rights under the use terms, the sale terms, the additional terms.
c) References to articles, sections and exhibits are to be construed as references to the articles or sections of the relevant portions of the use terms, sale terms, or additional terms, unless otherwise indicated, and terms such as “hereof,” “herein,” “hereunder” and other similar compounds of the word “here” shall mean and refer to this entire set of terms rather than any particular part of the same. The paragraph headings and captions are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting, the terms and in no way limit or affect any of the contents of the terms or its provisions. Whenever used, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders. The words "include" and "including" when used herein shall be deemed to be followed by the phrase "without limitation" unless such phrase otherwise appears. Any reference to products, goods, or merchandise shall refer to the items offered for sale on the website.

[End of Agreement]