ABACUS BUSINESS COMPUTER LLC CUSTOMER TERMS OF SERVICE
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, have 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 (“Online Ordering”), 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.
- Web services including, but not limited to, the creation of websites for Merchants.
- Mobile applications including, but not limited to mobile applications created by ABC for Merchants (“Mobile Applications”).
2. Permitted Activities.
By using the Services, you agree that:
You will not use the Services in any way that violates any law, these Terms, or any other policies.
You may only use the Services to make Purchases of legitimate products or services.
(c) Uploaded Information
Any information uploaded does not infringe on anyone’s intellectual property rights, proprietary rights, or otherwise conflict with the law or rights of others.
3. Agreement 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
- Remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services.
4. Download, Installation, and Use.
Subject to the terms of this Agreement, ABC will allow you to:
(a) download, install, and use the Mobile Application for your use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Mobile Application’s documentation, including but not limited to this Agreement.
(b) access, stream, download, and use on such Mobile Device the Services made available in or otherwise accessible through the Mobile Application, strictly in accordance with the Mobile Application’s documentation, including but not limited to this Agreement.
5. Reservation of Rights.
You acknowledge and agree that the Services are 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 this Agreement and the other policies and agreements referenced herein, 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.
6. Collection and Use of Your Information.
ABC may from time to time in its sole discretion develop and provide updates to the Services. Updates may include, but are not limited to, 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.
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.
8. 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.
9. 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.
10. 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.
11. Opening and Accessing your Account.
Only you have the right to access and use your account. You are responsible for ensuring that your login information and Payment Method information remain confidential at all times. ABC will assume that if your login or Payment Method are used to access the Services, the user has the legal authority to use such login or Payment Method. If you become aware of unauthorized use of your login or Payment Method, you agree to notify ABC immediately by email at email@example.com You remain liable for any activity on your account until such time as ABC has been notified and has had an opportunity to take appropriate action.
13. ABC is not a Party to Payment Transactions.
Purchases and Payment Transactions made through our Services are transactions between you and ABC’s Merchant. ABC is not the seller of any products or services offered by any Merchants, and is not party to any Purchase or Payment Transaction.
14. Using Your Account.
Once you have created your account, the process for updating your account my be done online on the Merchant’s website.
15. Online Ordering.
Online Ordering allows you to make Purchases from the website of a participating Merchant (an “Online Order”). The acceptance of any Online Order is solely at the discretion of the Merchant. Online Ordering may only be used by persons over the age of eighteen (18) years of age, or under the supervision of a parent or legal guardian. The Merchant may, at their discretion, elect to not provide refunds for online orders. Once placed, an Online Order cannot be cancelled through the website of a participating Merchant. A Merchant, at their sole discretion, may choose to allow for cancellation by telephone. You may be redirected to an online listing of a nearby location of the Merchant.
Merchants may, in their sole discretion, provide delivery of goods in connection with the Services. Delivery orders are subject to geographic limitations, individual Merchant hours of operation, and/or a minimum or maximum order total. You can pay by any of the methods listed in at checkout. Contact the Merchant directly to settle any payment dispute or refund claim. You may be automatically directed to an online listing referring to Your nearby Restaurant service location. Delivery times may vary or may be temporarily unavailable in select areas. The Customer agrees to accept delivery of any goods ordered. All deliveries will be to the street entrance of any delivery address, unless otherwise agreed upon by the Customer and delivery person. If you are not present upon delivery of the goods at the address provided in your order, you will be charged the full amount for the Purchase.
17. Loyalty and Rewards.
Merchants may choose to offer Customers loyalty or rewards programs. Any points earned through any program offered has no cash value and cannot be transferred, redeemed, or sold for cash. Each Merchant is solely responsible for the operation and maintenance of its own loyalty program, including establishing the number of points earned on purchases, and redemption thresholds, and how and when points may be redeemed.
Consent to Contact. By voluntarily providing your contact information, you agree that ABC may contact you via email, telephone, SMS, or MMS messages at any phone number provided, and you hereby consent to receiving such communications for transactional, informational, and operational purposes.
18. Export Regulation.
Components of the Services may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the US.
19. Disclaimer of Warranties.
THE SERVICES AND ANY GOODS PROVIDED IN CONNECTION WITH THE SERVICES, WHETHER BY ABC OR THE MERCHANT, ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ABC AND THE MERCHANT, ON THEIR OWN BEHALVES 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 AND/OR GOODS 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.
ABC AND THE MERCHANT DO NOT REPRESENT OR WARRANT THAT THE SERVICES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE PLATFORM WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE PLATFORM ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. ABC AND THE MERCHANT DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OF THE SERVICES OR ANY GOODS PROVIDED IN CONNECTION, AND/OR ANY OTHER CONTENT RELATED TO THE GOODS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED THROUGH THE SERVICES, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT ABC OR THE MERCHANT) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE SERVICES.
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.
20. 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.
Each of ABC’s Merchants are individually and solely responsible and liable for any marketing, sale, pricing, and packaging of products and services offered. ABC makes no representations or warranties regarding any aspect of the products and services offered by ABC’s Merchants.
22. Term and Termination.
The term of Agreement commences when you commence usage of any of the Services, including, but not limited to, when you download or install the Mobile Applications and will continue in effect until terminated by you or ABC as set forth in this Section 22.
(a) You may terminate this Agreement by ceasing usage of all of the Services.
(b) 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.
(c) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Services and delete all copies of the Application from your Mobile Device and account.
Termination will not limit any of ABC’s rights or remedies at law or in equity.
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.
27. 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.
28. Entire Agreement.
29. 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.