Terms of Service

To access and use the Services, you must register for a Nightcap POS account ("Account"). To complete your Account registration, you must provide us with your full legal name, business address, phone number, a valid email address, and any other information indicated as required. Nightcap POS may reject your application for an Account, or cancel an existing Account, for any reason, at our sole discretion.

You must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from which you use the Services to open an Account.

You confirm that you are receiving any Services provided by Bevz, Inc for the purposes of carrying on a business activity and not for any personal, household or family purpose.

You acknowledge that Nightcap POS will use the email address you provide on opening an Account or as updated by you from time to time as the primary method for communication with you ("Primary Email Address"). You must monitor the Primary Email Address you provide to Nightcap POS and your Primary Email Address must be capable of both sending and receiving messages.

You are responsible for keeping your password secure. Nightcap POS cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password.

Technical support in respect of the Services is only provided to Nightcap POS Users. Questions about the Terms of Service should be sent to Nightcap POS Support staff.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Services, or access to the Services without the express written permission by Nightcap POS.

You agree not to work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services.

You understand that your Materials may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. "Materials" means Your Trademarks, copyright content, any products or services you sell through the Services (including description and price), and any photos, images, videos, graphics, written content, audio files, code, information, or other data provided or made available by you or your affiliates to Nightcap POS or its affiliates.

Subject to Section 2.1.2, the person signing up for the Service by opening an Account will be the contracting party ("Store Owner") for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding Account we may provide to the Store Owner in connection with the Service.

If you are signing up for the Services on behalf of your employer, your employer will be the Store Owner. If you are signing up for the Services on behalf of your employer, then you must use your employer-issued email address and you represent and warrant that you have the authority to bind your employer to our Terms of Service.

Your Nightcap POS Store can only be associated with one Store Owner. A Store Owner may have multiple Nightcap POS Stores. "Store" means the online store (whether hosted by Nightcap POS or on a third party website) or physical retail location(s) associated with the Account.

Based on your Nightcap POS pricing plan, you can create one or more staff accounts ("Staff Accounts") allowing other people to access the Account. With Staff Accounts, the Store Owner can set permissions and let other people work in their Account while determining the level of access by Staff Accounts to specific business information.

The Store Owner is responsible for: (a) ensuring its employees, agents and subcontractors, including via Staff Accounts, comply with these Terms of Service; and (b) any breach of these Terms of Service by the Store Owner's employees, agents or subcontractors.

Upon completion of sign up for the Service, Nightcap POS will create an Apple Pay for Safari ("Apple Pay") account on your behalf, using the URL(s) and business name associated with your Account. By using Apple Pay on your Store, you are agreeing to be bound by the Apple Pay Platform Web Merchant Terms and Conditions, as they may be amended by Apple from time to time.

Upon completion of sign up for the Service, if you have been enrolled in Nightcap POS Payments, Nightcap POS will also create a Google Pay account on your behalf. By using Google Pay on your Store, you are agreeing to be bound by the Google Pay API Terms of Service, as they may be amended by Google from time to time.

Upon purchasing a domain name through Nightcap POS, domain registration will be preset to automatically renew each year so long as your Nightcap POS Account remains active.

By agreeing to these Terms of Service, you acknowledge and consent that Bevz, Inc., may, at its discretion, enroll you in services offered by Doordash, GrubHub, Uber Eats, FinTech, Bevz Inc or its affiliates, provided that such services are reasonably related to or enhance your use of the Bevz, Inc., platform. You will be notified of any such enrollment and given the opportunity to opt out if you do not wish to participate.

The Services have a range of features and functionalities. Not all Services or features will be available to all Merchants at all times and we are under no obligation to make any Services or features available in any jurisdiction. Except where prohibited in these Terms of Service or by applicable law, we reserve the right to modify the Services or any part thereof for any reason, without notice and at any time.

Nightcap POS does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from any part of the Services, including if we determine in our sole discretion that the goods or services that you offer through the Services, or the Materials uploaded or posted to the Services, violate our AUP or these Terms of Service.

Verbal or written abuse of any kind (including threats of abuse or retribution) of any Nightcap POS employee, member, or officer will result in immediate Account termination.

We reserve the right to provide our Services to your competitors and make no promise of exclusivity.

In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Nightcap POS reserves the right to determine, in our sole discretion, rightful Account ownership and transfer an Account to the rightful Store Owner.

You acknowledge and agree to provide public-facing contact information, a refund policy and order fulfillment timelines on your Nightcap POS Store.

You acknowledge and agree that the Services are not a marketplace, and any contract of sale made through the Services is directly between you and the customer. You are the seller of record for all items you sell through the Services.

You are solely responsible for the goods or services that you may sell through the Services (including description, price, fees, tax that you calculate, defects, required legal disclosures, regulatory compliance, offers or promotional content), including compliance with any applicable laws or regulations.

You may not use the Nightcap POS Services for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction or the laws of California.

You will pay the Fees applicable to your subscription to Online Service and/or POS Services ("Subscription Fees") and any other applicable fees, including but not limited to applicable fees relating to the value of sales made through your Store when using all payment providers other than Nightcap POS Payments ("Transaction Fees"), and any fees relating to your purchase or use of any products or services such as Nightcap POS Payments, POS Equipment, shipping, apps, domain names, or Third Party Services ("Additional Fees").

You must keep a valid payment method on file with us to pay for all incurred and recurring Fees. Subscription Fees are paid in advance and will be billed in 30 day intervals.

All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future ("Taxes").

Nightcap POS does not provide refunds.

"Confidential Information" will include, but will not be limited to, any and all information associated with a party's business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs, price lists, and other unpublished financial information, business plans and marketing data.

Each party agrees to use the other party's Confidential Information solely as necessary for performing its obligations under these Terms of Service.

You expressly understand and agree that, to the extent permitted by applicable laws, Nightcap POS and its suppliers will not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses arising out of or relating to the use of or inability to use the Service or these Terms of Service.

You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Nightcap POS partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of these Terms of Service or your violation of any law or the rights of a third party.

Your use of the Services is at your sole risk. The Services are provided on an "as is" and "as available" basis without any warranty or condition, express, implied or statutory.

We do not claim ownership of the Materials you provide to Nightcap POS; however, we do require a license to those Materials. You grant Nightcap POS a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to host, use, distribute, expose, modify, run, copy, store, publicly perform, communicate to the public, broadcast, reproduce, make available, display, and translate, and create derivative works of any Materials provided by you in connection with the Services.

You agree that you may not use any trademarks, logos, or service marks of Nightcap POS, whether registered or unregistered, unless you are authorized to do so by Nightcap POS in writing.

You may not access or use Bevz, Inc., intellectual property for any purpose other than that for which we make the services available. As a user of the service, you agree not to:

• Systematically retrieve data or other content from the Site without written permission
• Make any unauthorized use of the Site
• Engage in unauthorized framing of or linking to the Site
• Make improper use of our support services
• Engage in any automated use of the system
• Use information obtained from the Site to harass, abuse, or harm another person
• Decipher, decompile, disassemble, or reverse engineer any of the software
• Attempt to bypass any security measures of the Site
• Upload or transmit viruses, Trojan horses, or other malicious material
• Use the Site in a manner inconsistent with any applicable laws or regulations

In addition to the terms applicable to Services generally, the following terms apply to your access and use of the POS Services. The POS Services include the Nightcap POS software ("POS Software"), the Nightcap POS website, programs, documentation, apps, tools, internet-based services and components, Nightcap POS's POS hardware ("POS Equipment") and any updates thereto provided to you by Nightcap POS.

POS Equipment is purchased after the initial leasing agreement as agreed by both parties. Upon complete payment by you for the POS Equipment, you will acquire ownership of and title to the hardware components of the POS Equipment.

The Nightcap POS app is a Nightcap POS application that is available to Eligible Merchants (defined below) to engage with customers that use the Nightcap POS App. Only those Merchants who meet all merchant requirements and do not sell any prohibited products, as outlined in the Nightcap POS Merchant Guidelines, are eligible to access and use the Nightcap POS App Services ("Eligible Merchants").

Nightcap POS may from time to time recommend, provide you with access to, or enable third party software, applications ("Apps"), products, services or website links (collectively, "Third Party Services") for your consideration or use. We do not provide any warranties or make representations to you with respect to Third Party Services.

From time to time, Nightcap POS may, in its sole discretion, invite you to use, on a trial basis, pre-release or beta features that are in development and not yet available to all merchants ("Beta Services"). Nightcap POS makes no representations or warranties that the Beta Services will function.

Nightcap POS welcomes any ideas and/or suggestions regarding improvements or additions to the Services. Under no circumstances will any disclosure of any idea, suggestion or related material or any review of the Services, Third Party Services or any Third Party Provider (collectively, "Feedback") to Nightcap POS be subject to any obligation of confidentiality or expectation of compensation.

Since we respect artist and content owner rights, it is Bevz, Inc.'s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA"). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Site, please notify Bevz's copyright agent as set forth in the DMCA.

For your complaint to be valid under the DMCA, you must provide the following information in writing:

• An electronic or physical signature of a person authorized to act on behalf of the copyright owner
• Identification of the copyrighted work that you claim has been infringed
• Identification of the material that is claimed to be infringing and where it is located
• Information reasonably sufficient to permit Bevz to contact you
• A statement that you have a good faith belief that use of the material is not authorized
• A statement, made under penalty of perjury, that the above information is accurate

Nightcap POS is firmly committed to protecting the privacy of your personal information and the personal information of your customers. By using the Service, you acknowledge and agree that Nightcap POS's collection, usage and disclosure of this personal information is governed by our Privacy Policy.

If the billing address of your Store is located in the United States or Canada, this Section 13 applies to you:

"Nightcap POS Contracting Party" means Bevz, Inc., with offices located at 11732 Moorpark St., Unit F, Studio City, CA 91604, U.S.A.

The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the Terms of Service.

Unless Nightcap POS expressly agrees otherwise in writing (including electronically), the initial service term for the Services is twelve (12) months commencing on the date the subscription is activated for the applicable store location (the "Initial Service Term"). After the Initial Service Term ends, unless otherwise stated in writing, your subscription will automatically renew and continue on a month-to-month basis.

Section 14.1 sets the default Initial Service Term. If Nightcap POS expressly agrees in writing that no initial term applies, then the term begins on the date you complete registration and continues on a month-to-month basis until terminated.

You may cancel your Account and terminate these Terms of Service at any time by contacting Nightcap POS Support and then following the specific instructions indicated to you in Nightcap POS's response.

Without limiting any other remedies, we may suspend or terminate your Account or the Terms of Service for any reason, without notice and at any time (unless otherwise required by law).

Upon termination of the Services by either party for any reason:

• If an Early Termination occurs under Section 14.6, the Early Termination Fee will immediately become due and payable in full
• Nightcap POS will cease providing you with the Services and you will no longer be able to access your Account
• You will not be entitled to any refunds of any Fees, pro rata or otherwise
• Any outstanding balance owed to Nightcap POS will immediately become due and payable in full
• Your Nightcap POS Store will be taken offline

All Nightcap POS hardware must be returned to Bevz, Inc., at address provided upon termination.

a. Committed Term. You agree that each store location that subscribes to POS Services is subject to the Initial Service Term described in Section 14.1. For clarity, Subscription Fees are assessed at $99 per month per store location, unless otherwise stated by Nightcap POS in writing.

b. Early Termination Fee. If you cancel the Services, terminate your Account, or otherwise terminate these Terms of Service for any reason before the end of the Committed Term (an "Early Termination"), you agree to pay an early termination fee equal to the remaining unpaid monthly Subscription Fees for the balance of the Committed Term, calculated as:

c. Due Immediately. The Early Termination Fee is due immediately upon Early Termination.

d. Liquidated Damages. You acknowledge and agree that the Early Termination Fee represents a reasonable estimate of damages that would be difficult to determine with precision at the time of contracting.

e. Return of POS Hardware. Upon termination for any reason, you must return all Nightcap POS hardware provided to you within fifteen (15) days of termination.

We reserve the right, in our sole and absolute discretion, to update or change any portion of the Terms of Service at any time. We will provide you with reasonable advance notice of changes to the Terms of Service that materially adversely affect your use of the Services or your rights under the Terms of Service.

Nightcap POS may change the Fees for the Services from time-to-time. We will provide you with 30 days advance notice prior to any changes in Fees.

The Terms of Service, including the documents it incorporates by reference, constitute the entire agreement between you and Nightcap POS and govern your use of the Services and your Account.

The failure of Nightcap POS to exercise or enforce any right or provision of the Terms of Service will not constitute a waiver of such right or provision.

The Terms of Service will be governed by and interpreted in accordance with the laws of the state of California and the laws of the U.S.A applicable therein.

Any disputes arising out of these Terms of Service will be resolved in English unless otherwise determined by Nightcap POS.

You agree that: (i) the Site shall be deemed solely based in California; and (ii) the Site shall be deemed a passive one that does not give rise to personal jurisdiction over us in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California.

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BEVZ.

For any dispute with Bevz, Inc., you agree to first contact us at support@bevz.com or support@nightcapos.com and attempt to resolve the dispute with us informally. In the unlikely event that Bevz, Inc., has not been able to resolve a dispute after sixty (60) days, we each agree to resolve any claim, dispute, or controversy by binding arbitration by JAMS.

ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BEVZ ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.