END USER LICENSE AGREEMENT
These Terms of Service may be modified from time to time at ABC’s discretion. The updated Terms of Service are available at ABC’s website (available at https://abcpos.com/terms-of-service/). Notice of any changes may be provided by any method including but not limited to by email or on-screen notifications. These Terms of Service are effective as of the date indicated in the Terms of Service (“Effective Date”). By using any of the Services, you accept any updates to the Terms of Service.
A “Merchant” is any business that uses the Services provided by ABC, has contracted to use the Services provided by ABC, or expressed interest in using the Services provided by ABC.
(b) Merchant Employees
A “Merchant Employee(s)” is any employee of a Merchant.
A “Customer” is any individual that uses the Services at directly through ABC or indirectly through a Merchant.
“Services” are services and products developed by ABC including but not limited to:
- ABC’s point-of-sale (POS) system;
- Payment processing services;
- Our application programming interfaces (“APIs”);
- ABC’s Staff Management products;
- ABC’s products associated with ABC’s POS system, including but not limited to marketing, and loyalty products;
- Digital ordering services including but not limited to online ordering services, gift cards, contactless and/or pay at the table functions, and mobile applications;
- Accounts created through the use of any functions of the services and products developed by ABC; and
- Web services including, but not limited to, the creation and management of websites for Merchants.
- Mobile applications including, but not limited to mobile applications created by ABC for Merchants (“Mobile Applications”).
2. License Grant.
Subject to the terms of this Agreement, ABC grants you a limited, non-exclusive, and non-transferable license to:
(a) Access and Use
Access and use the applicable Services during the course of your employment with the Merchant, or other authorization to use the Services for the Merchant, solely and exclusively for the Merchant’s internal business purposes, including, but not limited to .
(b) Use of the Services
Use the Services for the management and operation of the Merchant’s business pursuant to the terms and conditions of the Purchase Agreement between you and ABC.
(c) Accurate Information
Each user must: (i) provide true, accurate, current and complete information on the ABC’s registration form (collectively, the “Registration Data”) and (ii) maintain and promptly update the Registration Data as necessary. If, after investigation, we have reasonable grounds to suspect that any user’s information is untrue, inaccurate, not current or incomplete, we may suspend or terminate that user’s account and prohibit any and all current or future use of the Services (or any portion thereof) by that user other than as expressly provided herein. Each user is wholly responsible for maintaining the confidentiality and security of his/her username and password, and is wholly liable for all activities occurring thereunder. ABC cannot and will not be liable for any loss or damage arising from a user’s failure to comply with this Section, including any loss or damage arising from any user’s failure to (i) immediately notify ABC of any unauthorized use of his or her password or account or any other breach of security, or (ii) exit and close his or her account at the end of each session.
3. License Restrictions.
You shall not:
- Copy, modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of any of the Services;
- Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code or components of the Services or any part thereof;
- Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof;
- Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features or functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being access by any unauthorized third party at any time, or assisting any third party in developing or supporting products or services that could compete with the Services; or
- Remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services.
- Conduct any fraudulent, unlawful, or illegal activities in connection to the Services.
You acknowledge and agree that any and all of the actions contained within this Section would cause irreparable harm to ABC for which monetary damages would be difficult to quantify or insufficient, and as such ABC would be entitled to injunctive relief.
4. Reservation of Rights.
You acknowledge and agree that the Services are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services under this Agreement, or any other rights thereto other than to use the Services in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. ABC shall retain its entire right, title, and interest in and to the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
5. Collection and Use of Your Information.
ABC may from time to time in its sole discretion develop and provide updates to the Services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that ABC has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. All Updates will be deemed part of the Services and be subject to all terms and conditions of this Agreement.
For Updates to Mobile Applications, based on your Mobile Device settings, when you Mobile Device is connected to the internet:
(a) The Mobile Application will automatically download and install all available Updates: or
(b) You may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Mobile Applications or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Services and be subject to all terms and conditions of this Agreement.
7. User Content.
Any content uploaded to the Services must be relevant and reasonably necessary to the Merchant’s business, and you grant ABC a non-exclusive, royalty-free, fully paid-up, worldwide license to access, use, copy, modify, display, and transmit such content for the purpose of providing the Services. You represent that you have all rights necessary to upload the user content to the Services.
8. Third-Party Materials.
The Services may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that ABC is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. ABC does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
9. Monitoring and Removing Content.
ABC does not review all content but does reserve the right to delete or refuse to accept any content. ABC may, in its sole discretion, reject or delete any content that may violate these Terms of Service or any applicable law.
10. Disclaimer of Warranties.
THE SERVICES ARE PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ABC, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, ABC PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
11. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ABC OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR ABC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
ABC reserves the right, in its sole discretion, to suspend, restrict, or terminate this Agreement and any Services at any time for any reason or no reason without prior notice or liability. ABC reserves the right to make any modifications, or discontinue the Services at any time without prior notice or liability.
You agree to indemnify, defend, and hold harmless ABC and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Service or your breach of this Agreement.
You agree that any and all disputes arising out of or relating to your use of the Services or this Service Agreement will be resolved exclusively through binding arbitration in accordance with the terms and conditions in this section. You agree to waive the right to a trial by jury.
Before seeking arbitration, you must first send us a written notice by first class mail or express mail. The notice shall be sent to the following address: Abacus Business Computer LLC, 44-49 College Point Blvd, Flushing, NY 11355.
You agree you can only bring claims on an individual basis and not as a plaintiff or a class member in any class action or proceeding. You agree that you will not join other plaintiff(s) in an arbitration to resolve similar disputes as a group. You agree that arbitration will be conducted in New York City of the State of New York, USA, by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, unless explicitly modified by this Service Agreement. The costs of the administration and arbitrator fees will be governed by the AAA Rules. The losing party shall be liable for prevailing party’s reasonable attorney fees.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
You may not assign these Terms of Service or any rights or obligations hereunder. ABC reserves its rights to assign these Terms of Service and the rights and obligations hereunder, to any party without notice and consent. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
17. Governing Law.
This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule.
18. Entire Agreement.
19. Compliance with Laws.
You agree to comply with all federal, state, local and foreign laws, rules, and regulations, and rules and procedures of card networks applicable to you and the Merchant with regard to the Services.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.