Wix Point of Sale Purchase and Service Terms
1. Wix POS Products
1.1. As used in these Point of Sale Purchase and Sale Service Terms (“POS Terms”), the “Wix POS Products” are any hardware product, instrument or piece of equipment that you purchase from Wix under these POS Terms, and include physical Point of Sale devices (“Terminals” or “Wix POS Products”), Wix tablets, cash drawers, printers, scanners, accessories, components, and spare parts, to enable you to accept card, cash and other payments where you are physically located in addition to the acceptance of online payments.
1.2. PLEASE READ THE ENTIRETY OF THESE SERVICE TERMS CAREFULLY. SECTIONS 23-24 OF THESE POS TERMS INCLUDES: (I) AN AGREEMENT TO A BINDING, MANDATORY ARBITRATION, (II) A WAIVER OF A RIGHT TO A JURY TRIAL, AND (III) A WAIVER OF THE RIGHT TO BRING A LAWSUIT ON BEHALF OF A CLASS.
1.3. Any software and/or firmware preinstalled on, or distributed with, the Wix POS Products, as updated from time to time (“Included Software”) forms part of the Wix Terminal Products.
1.4. These POS Terms apply to the purchase and use of the Wix POS Products.
1.5. The Wix POS Products may only be used in conjunction with the Wix Payment Services where Stripe acts as the Processor for Transactions made through the Terminals.
1.7. In order to use the Terminals, you, in addition to satisfying the other requirements detailed herein, hereby consent to and agree to be bound by the Stripe Terminal Purchase Terms (located here) and the Stripe Terminal Services Terms (located here) which are incorporated by reference (in these POS terms, “Stripe Terms”).
1.8. The purchaser of the Wix POS Products (in these POS Terms, “you”) is the entity indicated as the owner of the Wix Payment Account at the time of the purchase, and the seller of the Wix POS Products (in these POS Terms, “Wix”, “us”, or “we”) is the Wix entity indicated on your proof of purchase.
1.9. By purchasing the Wix POS Products, you accept and agree to these POS Terms. Do not purchase or use any Wix POS Products if you do not understand or agree to these POS Terms or your company is prohibited from doing so under the laws of the United States, Canada or any other country.
1.10. You may not purchase or use the Wix POS Products:
(a) unless you are located in the United States or in Canada and operating your business from the registered address of your Wix Payments account;
(b) unless you are a Wix Payments’ user and have been successfully verified as such, and you are purchasing and using the Wix POS Products on behalf of the entity listed as the owner of the Wix Payments account through which the Wix POS Products are purchased;
(c) if you are selling products or services included in the Prohibited Products and Services List; and
(d) unless you agree to abide by all of the terms and conditions in these POS Terms, the Wix Payment Terms of Service and Stripe Terms.
2. Product Specifications
2.1. All Wix POS Products features, specifications, and prices are subject to change at any time without notice. We attempt to be as accurate as possible. However, we do not warrant that product descriptions or information is accurate, complete, reliable, current, or error-free.
2.2. Unless expressly noted, all weights, measures and similar descriptions are approximate and are provided for convenience purposes only. Packaging may vary from that shown, and the appearance of the Wix POS Products in reality may differ from how it appears to you.
2.3. By placing an order, you represent that the products you order will be used only for lawful purposes and in a lawful manner.
3. Hardware Availability
3.1. Wix POS Products are manufactured by third parties and resold by Wix. While Wix makes reasonable efforts to maintain sufficient supply of the Wix POS Products, inventory shortages at our distributors as well as other factors which are not fully controlled by Wix may affect our ability to fulfill an order. If there is a delay in manufacture or distribution of a certain Wix POS Products that we believe will affect your order, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.
3.2. Wix is not obliged to accept any order, and we may cancel accepted orders at any time if we are unable to fulfill the order for any reason.
3.3. If you submit an order, and we accept the order, you are bound by the order unless Wix cancels the order. If we cancel your order, we will fully refund the purchase price to you. If you wish to cancel the order, refer to our Return Policy.
4. Geographic Availability
4.1. We only sell the Wix POS Products to merchants located in the United States and in Canada.
4.2. We may restrict or prevent the use of the Wix POS Products in a country other than the United States or Canada. You must not circumvent any geographical availability requirements that we apply to the Wix POS Products.
4.3. You must provide a valid shipping address within the United States or Canada where you are requesting that we ship the Wix POS Products.
4.4. Our ability to ship or permit the use of Wix POS Products is always subject to applicable Law and Processor’s requirements and terms, which may restrict our ability to ship the Wix POS Products.
5. Shipping and Returns
5.1. We will ship Wix POS Products. We will inform you of the shipping fees (if any) before you confirm your order. If we provide you with an estimated shipping or delivery date, that date is not guaranteed, and inventory shortages or events beyond our control could impact the delivery date. Also, many events beyond our control can affect the delivery of your Wix POS Products after we provide them to the carrier.
5.2. We are not liable for late shipment or delivery or any loss, damage, or penalty you incur from any delay in shipment or delivery, even if you have paid an additional fee for expedited shipping.
5.3. You should refuse delivery of any visibly damaged packages. You must notify Wix in writing within three (3) business days of receipt of any delivery of any shortages, defects or non-conforming Wix POS Products. If you fail to notify us with such three (3) business day period of any shortages, defects or non-conforming Wix POS Products, the Wix POS Products will be deemed accepted.
5.4. If you need to return a defective Wix POS Product, please contact us. We will provide you with return shipping instructions. If you follow our instructions, we will cover the cost of return shipping and will either repair, send you a replacement or refund your purchase price in full using the same method of payment you used to purchase the Wix POS Product. We will not take title to returned Wix POS Product until the item arrives at the facility to which we instruct you to return the Wix POS Product. The return of defective devices may only be done in accordance with the Limited Hardware Warranty set out hereunder.
5.5. If you wish to return a Wix POS Product for any other reason, you may do so within 30 days of receipt of the Wix POS Product, and in accordance with our Return Policy.
6. Prices & Fees
6.1. Prices for the Wix POS Products will be listed on the Wix Website at the time of your purchase. We may change pricing and availability at any time without any notice.
6.2. The amounts you pay for the purchase of the Wix POS Products are in addition to the fees you pay for other business services that may be offered by Wix and its affiliates that are provided to you under your other agreements with Wix. The use of the Wix POS Products is subject to the POS Processing Fees. Except as provided in Section 5.4, all fees are non refundable.
6.3. Unless otherwise stated, the prices shown for the Wix POS Products exclude taxes and shipping costs. We will add all taxes and shipping costs to the total amount of your purchase and show you the final amount due before you complete your purchase. You are solely responsible for all taxes and shipping costs that apply to the Wix POS Products that you purchase.
7.1. You are responsible for and will pay, indemnify, and hold Wix harmless from any sales, use, excise, import or export, withholding, value added, or similar tax (“Indirect Taxes”), and any penalties or interest associated with Indirect Taxes, imposed by any governmental authority with respect to any payment to be made or any Wix POS Products to be delivered under these POS Terms.
7.2. Wix may charge, and you must pay, all Indirect Taxes that Wix is legally obligated or allowed to collect based on sale of the Wix POS Products, and all fees payable for the Wix POS Products are exclusive of Indirect Taxes except to the extent Wix expressly states to the contrary.
7.3. You must provide us with any information we need to determine whether we are required to collect Indirect Taxes from you under any applicable Law. If you provide an exemption certificate or a direct payment certificate, we will not collect any Indirect Tax for which you can claim an available exemption.
7.4. All payments made by you to Wix under these POS Terms must be made free and clear of any withholding or deduction for Indirect Taxes. If any Indirect Taxes are required under applicable Law to be withheld on any payment, you will pay additional amounts as necessary so that the net amount received by Wix is equal to the amount then due and payable under these POS Terms.
8. Limited Hardware Warranty
8.1. Wix provides a one-year limited warranty against defective materials and faulty workmanship in Wix POS Products hardware components, as detailed herein.
8.2. The warranty period starts on the date of your original purchase of the Wix POS Products and ends one year after that date. If you submit a claim during this warranty period that is within the scope of the limited warranty, and you follow our instructions for returning the Wix POS Products, we will at our option, to the extent permitted by Law, either repair the Wix POS Product, replace the Wix POS Product, or refund to you all or part of the purchase price of the Wix POS Products.
8.3. This limited warranty applies only to unaltered hardware components of the Wix POS Products that are used in accordance with these POS Terms. It does not extend to any Wix POS Products from which the serial number has been removed or that has been damaged or rendered defective:
(a) as a result of accident, misuse, liquid spills, abuse, contamination, improper or inadequate maintenance or calibration, loss or damage in transit, or other external causes;
(b) by operation outside the usage parameters stated in these POS Terms, product specifications, and related documentation;
(c) by software, media, interfacing, parts or supplies not supplied or supported by Wix;
(d) by improper site preparation, maintenance or environmental conditions;
(e) by virus, infection, worm, or similar malicious code not introduced by Wix;
(f) by not taking reasonable security measures;
(g) by modification or service by anyone other than Wix or Wix authorized service provider;
(h) as a result of a decrease in maximum battery capacity or battery life cycle;
(i) by improper installation of end-user replaceable Wix or Wix approved parts; or
(j) by any breach of these POS Terms.
8.4. This limited warranty gives you specific rights and is personal to you. You may not transfer this warranty to any other person. You may have additional rights under applicable Law, and this limited warranty does not affect such rights. To make a warranty claim, please contact us at email@example.com. We will provide you with information about how to return your Wix POS Product. In the event that we will send you replacements and will not receive your Wix POS Product within the time period mentioned in our notice, the price of Wix POS Product sent to you shall constitute an outstanding debt to Wix which you hereby allow us to collect according to Section 8.2 of the Wix Payments Terms of Service.
8.5. User-generated data may be lost during any repair. Before returning any Wix POS Product for service, you must back-up any data and remove any confidential, proprietary, personal or transaction information. To the extent permitted by law, Wix is not responsible for any loss or unauthorized use of data on any returned Wix POS Product.
9. End Users
9.1. You may only purchase the Wix POS Products for your own commercial use. You may not otherwise resell, rent, lease, assign, sublicense, transfer or distribute Wix POS Products, or allow a third party to use Wix POS Products that you have purchased.
9.2. We reserve the right to refuse to sell or ship the Wix POS Products to any person we believe intends to use, resell, distribute or lease the Wix POS Products in a manner prohibited by these POS Terms. The foregoing limitations shall not apply to the extent prohibited by applicable Law.
10. Use of Wix POS Products
10.1. You must use Wix POS Products in a manner that is consistent with the terms of the Wix Payments Terms of Service;
10.2. You must use Wix POS Products solely in conjunction with the Wix Payment Services;
10.3. You must only use the Wix POS Products for the purpose of accepting payments for goods and services listed on your catalog.
10.4. You must ensure that only competent trained employees (or persons under their supervision) are allowed to operate or use Wix POS Products and that adequate security measures are put in place to safeguard Wix POS Products and data (including personal data) collected by and held on Wix POS Products; You are solely responsible for the secure connection of the Wix POS Products, including with respect to Internet connection.
10.5. You must only use Wix POS Products for the purpose for which they are provided and in accordance with all relevant documentation;
10.6. You must use Wix POS Products in a lawful manner, and must obey all laws, rules, and regulations, including those defined by the Payment Networks (“Laws”). As applicable, this may include compliance with domestic and international Laws related to the use or provision of financial services, notification and consumer protection, unfair competition, privacy, tax, receipts and invoices, and false advertising, and any other Laws relevant to the Wix POS Services.
10.7. You must use Wix POS Products in compliance with the Payment Card Industry Data Security Standards, the Payment Application Data Security Standard, and any successor standards or requirements.
10.8. In order to access and use certain sections and features of the Wix POS Products, you must use the log-in credentials for your account with Wix (“Log-In Credentials”). You must keep the Log-in Credentials confidential, and only allow such access to people you trust. You will be solely and fully responsible for all activities that occur arising as a result of the use of your Log-In Credentials with the Wix POS Products, whether or not specifically authorized by you, and for any damages, expenses or losses that may result from such activities. You are not allowed to disable or deactivate the credentials requirement.
10.9. In the event of loss of theft of the Wix POS Products, you must immediately notify Wix at firstname.lastname@example.org.
11.1. You must not, and must not permit any third party to:
(a) Ship a Wix POS Product outside of the United States or Canada;
(b) Use a Wix POS Product in any country other than the United States or Canada to which Wix shipped those products, except as otherwise expressly approved by Wix in writing;
(c) Where a Wix POS Product is registered to a location, move the Wix POS Product to a new location without registering the device to its new location and downloading the local device configuration;
(d) Represent, or use any technical measures in an attempt to represent, that the location of a Wix POS Product is a location different from its actual physical location;
(e) Use a Wix POS Product to enable any person (including you) to benefit from any activities Wix has identified as a Prohibited Products and Services List or activity. In addition, use the Wix POS Products in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government or any other applicable trade sanctioning regulations, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC);
(f) Copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of a Wix POS Product, or any accompanying documentation;
(g) Remove or change any copyright, trademark, trade name, or other proprietary notices, legends, symbols, or labels appearing on or in the Wix POS Products;
(h) Transfer any rights granted to you under these terms unless otherwise agreed between you and Wix in writing;
(i) Work around any of the technical limitations implemented in a Wix POS Product or enable functionality that is disabled or prohibited;
(j) Add, download or connect to any third-party applications, software or services or connect/pair the Wix POS Products to any third-party hardware, storage device in any manner whatsoever;
(k) Reverse engineer or attempt to reverse engineer a Wix POS Product except as expressly permitted by applicable Laws;
(l) Perform or attempt to perform any actions that would interfere with the normal operation of a Wix POS Product or impact the use of the Wix POS Products by other users;
(m) Use the Wix POS Products for personal, family, or household or any noncommercial purpose;
(n) Impose an unreasonable or disproportionately large load on the Wix Services; or
(o) Use the Wix POS Products for benchmarking or similar testing purposes.
12. Unauthorized or Illegal Use
12.1. If we suspect or know that you are using or have used Wix POS Products for unauthorized, fraudulent, or illegal purposes, or in breach of these terms, or in a manner that exposes you, Wix, or others to risks unacceptable to Wix, we may, in addition to any other right we may have under applicable Law and under the Wix Payments Terms of Service, limit or disable the functionality of your Wix POS Products, until such time as you demonstrate to our reasonable satisfaction that our suspicion was unfounded, or provided us with sufficient assurances that the unacceptable use has been appropriately mitigated and will not recur.
13. Software License Terms
13.1. Included Software may be subject to separate license terms of either Wix or any of its third-party service providers (“EULAs”). You accept the EULAs by any of the following:
(a) breaking the seal on the Wix POS Products’ packaging that refers to the EULA, or going to the site where packaging indicates the EULA is available;
(b) using the Wix POS Products; or
(c) installing, copying, or otherwise using or attempting to use the Included Software. If more than one Included Software product is included in the Wix POS Products, then each Included Software may have its own EULA.
13.2. You are not authorized to install or use the Included Software unless you first agree to the applicable EULAs. If you do not want to agree to any of the EULAs, you may return the Wix POS Products unused to us for a full refund.
13.3. EULAs are not part of these POS Terms, but to the extent of any conflict with these POS Terms, the EULAs will control solely for the Included Software to which they apply.
13.4. All rights not expressly granted to you in these POS Terms are reserved.
13.5. If any Included Software in any Wix POS Product does not include a EULA, then you are granted a non-exclusive, non-transferable, limited, personal license to use that Included Software only with the Wix POS Product on which it was installed and provided to you, and for all purposes under these POS Terms, including with regard to limitations on our liability, the Included Software will be deemed to be part of the Wix POS Product on which it was installed.
13.6. Except as provided in any EULA, you may not:
(a) claim or register ownership of any Included Software on your behalf or on behalf of others;
(b) sublicense any rights in any Included Software;
(c) copy the Included Software except where such copying is incidental to normal use of the Included Software;
(d) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Included Software;
(e) make alterations to, or modifications of, the whole or any part of the Included Software, nor permit the Included Software or any part of it to be combined with, or become incorporated in, any other programs;
(f) disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Included Software nor attempt to do any such thing except to the extent permitted by applicable Laws;
(g) provide or otherwise make available the Included Software in whole or in part, in any form to any person without prior written consent from us;
(h) import or export any Included Software to a person or country in violation of any country’s export control Laws;
(i) use any Included Software in a manner that violates these POS Terms or Laws; or
(j) attempt to do any of the foregoing.
13.7. You acknowledge that all intellectual property rights in the Included Software anywhere in the world belong to Wix or its third-party service providers, that rights in the Included Software are licensed (not sold) to you, and that you have no rights in, or to, the Included Software other than the right to use them in accordance with the terms of the EULA and/or these POS Terms.
14. Installation, Updates, and Maintenance; Use with Third-Party Products
14.1. You are responsible for installing, integrating and maintaining the Wix POS Products, which includes updating the Included Software as may be required by Wix or the original equipment manufacturer (“OEM”) from time to time.
14.2. Wix may make updates to the Wix POS Products available to you. You must install these updates to continue using the Wix POS Products. Wix will not be obligated to provide services or support for any outdated versions. Any updates are subject to these POS Terms unless other terms are provided with the updates.
14.3. Use of the Wix POS Products in conjunction with any other products, such as hardware accessories, may lead to incompatibilities which cause the Wix POS Products to not function correctly. As a consequence, all such use is at your own risk.
15. Ownership and Rights
15.1. These POS Terms do not grant any rights or licenses in the Wix POS Products or Included Software other than as expressly stated in these POS Terms or the EULAs. As between the parties, Wix owns all right, title and interest, including all copyrights, patents, trademarks, trade secrets and other intellectual property rights, in and to the Wix POS Products and Included Software. All rights not expressly granted are reserved.
16. Collection and Provision of Information
17.1. As part of these POS Terms, we offer to provide a free recycling service for any Wix POS Products that is returned at your cost to a designated Wix collection point. A certificate of disposal will be supplied by us.
17.2. Please contact us to organize return by supplying the address where the units for disposal are stored, the number of units, the type of units and estimated total weight (kgs).
17.3. Please note, we assume no responsibility for loss or confidentiality of your data (or any other information) on Wix POS Products sent for recycling. Before shipping, you must delete data on hard disk drives and any other storage devices in the electronic equipment for disposal.
17.4. Where possible, you must remove and damage beyond use any removable media, such as hard disk drive modules.
17.5. You must not include any hazardous materials.
17.6. Once the Wix POS Product has been shipped, we cannot return it to you. Participation in this program constitutes a relinquishment of all rights to and in the electronic equipment and other related materials sent to us.
18. Beta Services
18.1. Wix or its service providers may indicate that the Wix POS Products as a whole, with regard to a particular release or feature, or as offered in certain countries or regions, are classified by Wix or its service provider as “beta”, “limited availability”, “invite only”, or “pre-release” (“Beta”). In these POS Terms, the portion of the Wix POS Products that are subject to a Beta classification are called “Beta Services”. You understand that any Beta Services are still in development, may have bugs or errors, may be feature incomplete, and may be subject to material change. You further understand that the Beta Services may be generally available in some regions while still classified as Beta in others. Despite any other provision of these POS Terms or the Wix Payment Terms of Service, you understand and agree that your use of or reliance on the Beta Services is subject to the Beta classification, if applicable, which will continue in force until such time as the classification is removed by Wix or its service provider.
18.2. When a release of the Wix POS Products or one of its features is classified as Beta, you will be one of the first Wix users to utilize the such feature or release in relation to the Wix POS Products, and such features or releases will continue to be classified as such until Wix or its service provider, in its sole discretion, removes the Beta classification for the relevant feature release or region (as applicable). Neither Wix nor its service provider has any obligation whatsoever to provide any bug fixes, error corrections, patches, or service packs for, or any revisions, successors, or updated versions to, the Beta Services, or any part of them, while the Beta classification is in place (all of the foregoing, if made available by Wix, “Beta Updates”, which include any changes to any API, Example Application, SDK, or other technology that forms part of or is related to the Wix POS Products). However, if Wix or its service provider provides or makes available any Beta Update, you must fully implement the Beta Update within the time period specified by Wix or its service provider (and in any event within 30 days of when Wix makes the Beta Update available).
18.3. Wix may make updates, changes, repairs, or maintenance at any time, and with or without notice, which may result in changes in the availability or quality of the Beta Services. In addition, Wix may suspend your access to the Wix Services with or without notice, including if Wix reasonably believes that: (a) suspension of the Beta Services is required by Law or regulation; (b) continued provision of the Beta Services would place Wix in breach of any obligation Wix owes to a third party; or (c) Wix determines that continued provision of the Beta Services would give rise to an unacceptable security or privacy risk. Wix may also terminate your access to the Beta Services if Wix, in its sole discretion, ceases to offer the Beta Services, at all or in the applicable jurisdiction.
19.1. NEITHER WIX NOR ANY OTHER PARTY PROVIDING ANY PORTION OF WIX PAYMENTS SHALL BE RESPONSIBLE FOR ANY FAULTS, DELAYS OR INTERRUPTIONS IN WIX PAYMENTS, WHICH ARE A RESULT OF ANY FAILURE OF THE WIX POS PRODUCTS, OR FORCE MAJEURE EVENTS, AS WELL AS SUCH FAULTS, DELAYS OR INTERRUPTIONS AS A RESULT OF RESTRICTIONS IMPOSED BY THE GOVERNMENT OR TELECOMMUNICATIONS SERVICE OPERATORS, OR AS RESULT OF ANY MISUSE OF WIX POS PRODUCTS BY USERS.
19.2. THE WIX POS PRODUCTS ARE PROVIDED AS-IS AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY STATED IN THESE POS TERMS, WIX AND ITS AGENTS, AFFILIATES AND SERVICE PROVIDERS HEREBY DISCLAIM ALL OTHER TERMS, CONDITIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO OR ARISING OUT OF THESE POS TERMS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED TERMS, CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
19.3. IF ANY GUARANTEE, CONDITION, WARRANTY OR TERM IS IMPLIED OR IMPOSED BY ANY APPLICABLE LAW AND CANNOT BE EXCLUDED (A NON-EXCLUDABLE PROVISION), AND WE ARE ABLE TO LIMIT YOUR REMEDY FOR A BREACH OF THE NON-EXCLUDABLE PROVISION, THEN OUR LIABILITY FOR BREACH OF THE NON-EXCLUDABLE PROVISION IS LIMITED EXCLUSIVELY (SO FAR AS APPLICABLE LAWS DO NOT PROHIBIT) TO THE SUPPLYING OF WIX POS PRODUCTS AGAIN, OR THE PAYMENT OF AMOUNT PAID BY YOU FOR THE WIX POS PRODUCT.
20. Limitation of Liability
20.1. To the fullest extent permitted by law in each applicable jurisdiction, Wix and our affiliated companies and subsidiaries worldwide, and their respective employees, offices, directors, agents, representatives and service providers (each a “Wix Entity”) shall not be liable to you for any direct, indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, including any damages resulting from (1) loss of use, data, profits, goodwill, or other intangible losses resulting from your use or inability to use the Wix POS Products or for the unavailability of the Wix POS Products; (2) any unauthorized access to or use of our servers and/or any personal information and/or other information stored therein; or (3) events beyond the reasonable control of Wix, including any internet failures, equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, earthquakes, explosions, epidemics, quarantines, acts of God, war, terrorism, intergalactic struggles, governmental actions, orders of courts, agencies or tribunals or non-performance of third parties.
20.2. The Wix Entities are not liable, and further deny responsibility for, any damages, harm, or losses caused to you arising from or relating to hacking, tampering, or other unauthorized access or use of the Wix POS Products.
20.3. The Wix Entities are not liable, and further deny responsibility for all liability and damages caused to you or others caused by (a) your or your employees’, agents’, contractors’, end users’, and other personnel’s access or use of the Wix POS Products inconsistent with these POS Terms or any documentation provided to you in connection with the Wix POS Products; (b) any unauthorized access of servers, infrastructure, or data used in connection with the Wix POS Products; (c) interruptions to, or cessation of the Wix POS Products; (d) any bugs, viruses, or other harmful code that may be transmitted to, or through the Wix POS Products; (e) any errors, inaccuracies, omissions, or losses in or to any data provided to us via the Wix POS Products; or (f) the defamatory, offensive, or illegal conduct of others.
20.4. Except to the extent prohibited by applicable Laws, you agree to limit any additional liability not disclaimed or denied by the Wix Entities under these POS Terms to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the amount paid by you to Wix for the Wix POS Products.
20.5. Nothing in these POS Terms operates to exclude or limit liability for (a) death or bodily injury to the extent directly caused by a party’s gross negligence; or (b) fraud or willful misconduct, to the extent that doing so would contravene applicable Laws.
21. Your Liability for Third-Party Claims Against Us
21.1. Without limiting, and in addition to, any other obligation that you may owe under these POS Terms, you are at all times responsible for the acts and omissions of your employees, directors, contractors and agents, to the extent such persons are acting within the scope of their relationship with you.
21.2. You agree to defend the Wix Entities from, and against any and all liability, damages, costs or expenses, including reasonable legal fees and expenses, for any third-party claim or demand, including any action brought, or fine, fee or penalty imposed, by any regulatory authority (each, a “Claim”) arising out of, or related to: (i) your breach of any representation, warranty, covenant or obligation under these POS Terms; (ii) gross negligence, fraud or willful misconduct on your part or any of your officers, directors, employees, representatives or service providers, or any of their respective officers, directors and employees; (iii) any actions taken by Wix or its service providers in accordance with or in good faith reliance upon information or instructions provided by you or any of your agents or representatives; (iv) any claim by a Customer, or any obligation owed to any Customer or other third party by you, or any third party retained by you; and (v) any actual or alleged infringement or misappropriation of any intellectual property rights of any third party by you. You shall not compromise or settle a Claim against any Wix Party without Wix’s prior written consent.
22. Informal Dispute Resolution
22.1. Wix wishes to resolve any disputes with You. You and Wix agree to use commercially reasonable efforts to resolve, promptly and in good faith, any controversy, claim or dispute between You and Wix arising from, or in connection with these Service Terms. In connection with the foregoing, You agree to contact Wix and seek to resolve Your concerns informally by emailing email@example.com. Wix will contact You by email and try to resolve Your issue. If Wix has not resolved the issue within 30 days after receiving Your email or such other timeframe provided to You by Wix, either You or Wix may initiate a proceeding in accordance with Section 23.
23. Mandatory Arbitration Provisions
YOU AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:
23.1. You and Wix agree to resolve any claims relating to these POS Terms through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to the Agreement to Arbitrate below. This includes disputes arising out of, or relating to interpretation or application of this “Mandatory Arbitration Provisions” section, including its enforceability, revocability or validity.
23.2. You can decline this agreement to arbitrate by sending an email to firstname.lastname@example.org within 30 days of being verified for a Wix Payments account.
23.3. We both agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes. The arbitration will be held in the United States county where You live or work (to the extent that You are a U.S. resident), in San Francisco County, California, or any other location we mutually agree on.
23.4. The AAA rules will govern payment of all arbitration fees. Wix will pay all arbitration fees for individual arbitration for claims less than US$25,000. If you receive an arbitration award that is more favorable than any offer we make to resolve the claim, we will pay you US$1,000 in addition to the award. Wix will not seek its attorneys’ fees and costs in arbitration, unless the arbitrator determines that Your claim is frivolous.
23.5. Either You or Wix may assert claims, if they qualify, in a small-claims court in San Francisco County, California or any United States county where You live or work (to the extent that You are a U.S. resident). Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of Wix POS Products, or intellectual property infringement (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in San Francisco County, California to resolve Your claim.
24. No Class Actions
You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are expressly not allowed. If this specific paragraph is held unenforceable or otherwise void, then the entirety of this Mandatory Arbitration Provisions section will be deemed void.
25. Governing Law
These POS Terms will be governed by California law, except for its conflicts of law principles.
26.1. Wix may assign its rights and/or obligations hereunder to a third party without your consent or prior notice to you. You may not assign or transfer any of your rights and obligations hereunder without the prior written consent of Wix. Any attempted or actual assignment thereof without Wix’s prior explicit and written consent will be null and void.
27.1. We may provide you with notices in any of the following methods: (1) via the Wix.com website or Wix mobile application, including by a banner or pop-up within the Wix.com website, your user account or elsewhere; (2) by e-mail, sent to the e-mail address you provided us; and/or (3) through any other means, including any phone number or physical address you provided us. Wix’s notice to you will be deemed received and effective within twenty four (24) hours after it was published or sent through any of the foregoing methods, unless otherwise indicated in the notice.
28.1. The POS Terms, and your use of the Wix POS Products, do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between Wix and you.
29. Entire Agreement
29.1. These POS Terms, together with the Wix Payment Term of Service and any other legal or fee notices provided to you by Wix, shall constitute the entire agreement between you and Wix concerning the subject matter hereof or thereof, and supersede any and all prior or contemporaneous agreements, understandings, promises, conditions, negotiations, covenants or representations, whether written or oral, between Wix and you, including those made by, or between any of our respective representatives, with respect to any of the Wix POS Products. You further agree that you are not relying upon any promise, inducement, representation, statement, disclosure or duty of disclosure of Wix in entering into any of these POS Terms.
29.2. Except where expressly stated otherwise in a writing executed between you and Wix, these POS Terms will prevail over any conflicting policy or agreement for the provision or use of the Wix POS Products. These POS Terms set forth your exclusive remedies with respect to the Wix POS Products.
30. Severability & Waivers
30.1. If any provision of these Wix POS Terms is deemed by a court of competent jurisdiction to be invalid, unlawful, void, or for any reason unenforceable, then such provision shall be deemed severable and will not affect the validity and enforceability of the remaining provisions. No Waiver of any breach or default of any of the Wix POS Terms shall be deemed to be a waiver of any preceding or subsequent breach or default.
31. Cumulative Rights, Construction, Waiver
31.1. The rights and remedies of the parties under these POS Terms are cumulative, and either party may enforce any of its rights or remedies under these POS Terms, along with all other rights and remedies available to it at Law or in equity.
31.2. No provision of these POS Terms will be construed against any party on the basis of that party being the drafter.
31.3. Unless expressly stated otherwise, the use of the term “including” or “such as” is not to be interpreted as limiting the generality of the text preceding the term.
32.1. Provisions in these POS Terms which by their nature are intended to survive termination (including indemnification obligations and limitations of liability) will survive termination of these POS Terms.
33. You and Wix have expressly requested that these POS Terms and any ancillary documents be drafted in English. Wix et Vous ont expressément requis que les présentes modalités et tout document y afférant soient rédigés en langue anglaise.