Effective Date: March 1, 2019
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY.
THESE TERMS OF SERVICE (“TERMS OF SERVICE” OR “TERMS” OR “SERVICE AGREEMENT” or “AGREEMENT”) FORM A BINDING AGREEMENT BETWEEN YOU AND ABC BUSINESS COMPUTER LLC (“ABCPOS,” “WE,” “US,” “OUR”).
BY ACCESSING AND/OR USING OUR SOFTWARE PRODUCTS AND SERVICES, INCLUDING THE ABCPOS CLOUD-BASED SOFTWARE APPLICATION, MOBILE APP, WEBSITES, AS WELL AS ANY HARDWARE PRODUCTS PROVIDED OR SOLD BY US ON WHICH SUCH SOFTWARE APPLICATION OR MOBILE APP IS INSTALLED OR ACCESSIBLE (COLLECTIVELY, THE “SERVICES”), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE YOU MAY NOT ACCESS OR USE THE SERVICES.
This SERVICE AGREEMENT takes effect as of the date of first acceptance by means of a click-through by you before you can access or use the Services. By accessing and using the Services, you represent and warrant that you are at least eighteen years of age or otherwise recognized as being able to form legally binding contracts under applicable law, and you are not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction.
1. Permitted Uses
We own all rights, title, interest to, or have license in all intellectual property in and to the Services, including the trademarks and logos of ABCPOS used and displayed on the Services, and copyright in all software, software interface, website design, and any other documents or materials in writing or fixed media associated with the Services. You have a limited license to use our Services if you are an ABCPOS customer (or “BUYER”, who may be a natural person or a legal entity) that has paid for ABCPOS Services for a subscription period pursuant to a Purchase Agreement entered into between ABCPOS and BUYER, or you are a person authorized by such BUYER to access and/or use the Services. As used herein, “YOU” include both the BUYER and any person authorized by the BUYER to access and use the Services.
ABCPOS grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Services only for purposes related to BUYER’s business during the valid term of the subscription period, and if you are not BUYER but a person authorized by BUYER, only during the course of your employment or other authorization with the BUYER. Nothing in this Service Agreement should be construed as granting any license or right to use any trademark, copyright, or other rights in the Services without the prior written consent of rights owners.
2. Prohibited Uses
You agree not to:
(a) alter, modify, adapt, decompile, reverse engineer the software of the Services;
(b) copy, rent, sublease, distribute, disclose, or otherwise transfer any aspects of the Services, including any text, graphics, layout and/or organization of the user interface of the Services, to any other medium or to another person;
(c) use the Services to assist any third party in developing or supporting products or services competitive with the Services;
(d) tamper with or otherwise impair the Services;
(e) conduct any fraudulent, unlawful, or illegal activities in your access or use of the Services.
You agree that engaging in any of the Prohibited Uses herein shall cause irreparable harm for which monetary damages would be difficult to quantify or insufficient, and as such ABCPOS shall be entitled to immediate injunctive relief.
3. User Content and Third Party Content
You may upload user content to the Services only when such content is relevant and reasonably necessary to BUYER’s business. You grant to ABCPOS a non-exclusive, royalty-free, fully paid-up, worldwide license to access, use, copy, modify, display and transmit such content for the purpose of our providing the Services. You represent and warrant that you have all rights necessary to upload the user content to the Services.
The Services may contain materials provided by third-parties that are not owned or controlled by us. Inclusion of such materials does not indicate our endorsement of their contents. We do not screen or filter such intents. Such materials may include weblinks that lead to websites that are not controlled by us. Any interaction or exchange of information or data between you and any third-party is solely between you and such third-party. If you believe any user content or third-party content is not appropriate or in violation of any applicable law, please let us know and we will take appropriate measures, including deleting such content. However, we will not be liable for any loss or damage incurred as a result of your use of any user content or third-party content.
5. Limitation of Liability and Disclaimer of Warranties
YOU AGREE THAT THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY WITH REGARD TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT.
ANY USE OF THE SERVICES IS AT YOUR SOLE AND ABSOLUTE RISK. THE SERVICES MAY CONTAIN BUGS, ERRORS, AND MAY BE SUBJECT TO MALICIOUS SECURITY ATTACKS. ABCPOS DOES NOT GUARANTEE THE RELIABILITY, AVAILABILITY, DEPENDABILITY, SUITABILITY, ADEQUACY, OR ACCURACY OF THE SERVICES. WE ADVISE YOU, AND YOU ACKNOWLEDGE THAT DATA COMMUNICATIONS OVER THE INTERNET HAS INHERENT RISKS, LIMITATIONS, AND DELAYS.
IN NO EVENT WILL ABSPOS OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORIES. SPECIFICALLY, WE ARE NOT RESPONSIBLE FOR LOST PROFITS OR REVENUE, LOSS OF PRODUCTIVITY, LOSS OF DATA, THE COSTS IN RECOVERING DATA, OR OTHER LOSSES DUE TO THE INTERRUPTION OR UNAVAILABILITY IN THE SERVICES, WHETHER CAUSED BY US OR ANY THIRD PARTIES (E.G., INTERNET SERVICE PROVIDERS, HARDWARE DEVICE PROVIDERS, ETC.).
NOTHING IN THIS SERVICE AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED UNDER GOVERNING LAW. THE LIABILITY OF ABCPOS WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN EACH STATE AS APPLICABLE TO ANY DISPUTE ARISING FROM THIS SERVICE AGREEMENT. TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNREASONABLE, OUR AGGREGATE LIABILITY SHALL NOT EXCEED $100.
You agree to indemnify and hold harmless ABCPOS and its directors, officers, employees, affiliates and agents against any claims arising or resulting from your violation or breach of these Terms of Service. If such claims are brought against ABCPOS, we will send you notices and may request your cooperation. You agree to cooperate with and support ABCPOS in ABCPOS’s actions to defend against such claims. You will be responsible to compensate ABCPOS for any loss or damages incurred by ABCPOS in such actions, including reasonable attorney and other professional service fees.
ABCPOS may suspend or terminate this Service Agreement and refute or disable your access and use of the Services, or any part thereof, at any time and for any reason without any prior notice. If ABCPOS elects to terminate the Service Agreement, at its sole discretion, ABCPOS may provide limited access in a reasonable timeframe for you to retrieve your account data, or send your account data to you in a format determined suitable at the sole discretion of ABCPOS. Also, if you are the BUYER, ABCPOS will give you a partial refund in accordance with the terms of applicable Purchase Agreement. No other liability will be incurred by our termination of services to you.
Sections 2, 4, 5, 6, 7, 8 and 9 of this Service Agreement will survive the termination of this Service 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.
Governing Law: Any action, claim, or dispute related to this Service Agreement will be governed and construed by the laws of the State of New York, excluding its conflicts of law provisions.
Assignment: These Terms of Service will inure to the benefit of our successors and assigns. You may not assign any rights, interests or obligations hereunder without our prior written consent.
Severability: If any provisions of this Service Agreement are found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions, which will remain in full force and effect.
Entire Agreement: These Terms of Service constitute the entire agreement between you and ABCPOS with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between you and ABCPOS with respect to the Services.
Modification: We may update or modify these terms from time to time, and will make the updated terms available at our website at https://www.abcpos.com/terms-of-service. We may provide notice to you by on-screen notification through the Services. However, it is your obligation to check these updates regularly. Regardless of our notices about the updated terms, the updated terms become effective as of the effective date indicated as shown in the updated terms. Your continued use of the Services after the effective date will be deemed as your acceptance of the updated terms. In the event you do not accept the updated terms, you may choose not to use the services further. You are not entitled to any other remedies or compensations.