Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
POS.com Solution (hereafter “Solution”) may consists a one of a combination of Cloud Hosted and Local Software, Hardware, POS.com or 3rd party Hosted Services, Local or Cloud Servers, Remote and/or Onsite Professional Development and Implementations Services
If you accept this agreement on behalf of a Company or other Legal Entity, you represent that you are Authorized to bind this company to these terms and conditions, in which case the terms “you” or “your” shall refer to this Company. If you do not have such Authority, or if you do not agree with the Terms and Conditions included herein, you must leave not proceed to use the POS.com Solution. You can decline the agreement, and must cease to access any portion of the POS.com Solution.
Furthermore, you represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the POS.com Solution and that your billing information you provided is correct.
1 – Changes
to the Agreement
POS.com reserves the right to amend the Agreement and its prices in its sole and absolute discretion. Modifications or amendments made shall benefit the Customers and preserve the ability of POS.com to remain competitive and a great Solution. By Accepting the Agreement, you agree to abide by all amendments or modifications that Linga POS ® elects to make. Amendments shall be effective immediately after the publication of notice that the Agreement has been modified. Notification of amendments shall be published by one or more of the following methods: (1) posting on the Company’s official Web site; (2) electronic mail (e-mail); (3) inclusion in Company periodicals or (4) special mailings. The continuation of the use of the POS system constitutes acceptance of any and all amendments.
2 – Policies
and Provisions Severable
If any provision of the Agreement, in its current form or as may be amended, is found to be invalid, or unenforceable for any reason, only the invalid portion(s) of the provision shall be severed and the remaining terms and provisions shall remain in full force and effect. The severed provision, or portion thereof, shall be reformed to reflect the purpose of the provision as closely as possible.
3 – Waiver
The Company never gives up its right to insist on compliance with the Agreement and with the applicable laws governing the conduct of a business. No failure of POS.com to exercise any right or power under the Agreement or to insist upon strict compliance by a customer/user with any obligation or provision of the Agreement, and no custom or practice of the parties at variance with the terms of the Agreement, shall constitute a waiver of Linga POS ®’s right to demand exact compliance with the Agreement. The existence of any claim or cause of action by a customer/user against Linga POS ® shall not constitute a defense to POS.com enforcement of any term or provision of the Agreement.
4 – Privacy
POS.com’s privacy and security policies may be viewed at http://www.pos.com. POS.com reserves the right to modify its privacy and security policies in its sole and absolute discretion as the need arises. Due to the fact, that POS.com Solution is an internet-based online application, POS.com may need to distribute important notices or announcements regarding its operation. If you are using the system, whether for free or for a subscription fee, you agree that POS.com can disclose the fact that you are a registered customer.
5 – License
POS.com hereby extends to you a non-exclusive, non-transferable, worldwide right to use the Solution, solely for your own domestic and internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved solely by POS.com ®. If you are a direct competitor of POS.com ® or employed or contracted by a direct competitor, you may not register to and access our Platform, except with POS.com prior written consent. In addition, you may not access the Solution for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Solution or any of the POS.com content in any way. You shall also not create Internet “links” to POS.com ’s plans or “frame” or “mirror” any content on any other server or wireless or Internet-based device. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function. You may use the POS.com Solution only for your domestic and internal business purposes and shall not: send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violate third-party privacy rights; send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; interfere with or disrupt the integrity or performance of the Solution or the data contained therein, or attempt to gain unauthorized access to the Solution or its related systems or networks. The POS.com name, the POS.com logo, are trademarks that exclusively belong to POS.com
6 – Adherence
to Laws and Ordinances
Customers/users shall comply with all applicable federal, foreign, state and local laws, treaties and regulations in the conduct of their businesses. Many cities and counties have laws regulating certain home-based businesses. Customers/users must obey those laws that do apply to them. If a city or county official tells a customer/user that a certain ordinance applies to him or her, they are to cooperate fully and immediately.
7 – Duties
You are responsible for all activity occurring under your use of the Solution/user accounts. You are to report to POS.com immediately of any unauthorized use of any password or account or any other known or suspected breach of security. You are to use reasonable efforts to immediately stop any duplication or distribution of Pos.com content that is known or suspected by you or your users. You will also not falsely identify yourself to gain access to or use the POS.com Solultion.
8 – User
POS.com does not own any of the data, information or material (“Business Owner Data”) that you submit to the Solution in the course of using the POS.com Solution. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, ownership or right to use of all Business Owner Data, and POS.com shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Business Owner Data. In the event that User is terminated for any reason, all Business Owner Data will be lost. POS.com reserves the right to withhold, remove and/or discard Business Owner Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Business Owner Data immediately ceases, and POS.com shall have no obligation to maintain or forward any Business Owner Data.
9 – IP Rights
You acknowledge that POS.com alone (and its licensors, where applicable) shall own all rights, title and interest, including without limitation all related Intellectual Property Rights, in the Solution, the POS.com website and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the POS.com. Accordingly, you agree that you shall not copy, reproduce, alter, modify, or create derivative works from the Platform. You also agree that you will not use any automated or manual process to monitor or copy any content from the POS.com Solution. In particular, you shall not reverse engineer or access the Solution in order to build a competitive product or service or to build a product using ideas, features, functions or graphics of the POS.com Solution.
This Agreement is not a sale and does not convey to you any rights of ownership in or related to POS.com Solution, the POS.com website or the Intellectual Property Rights owned by POS.com.
10 – Third
Party Interactions and Links to Other Sites
While using the Solution, you may enter into correspondence with, purchase and sell goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the POS.com Solution. Any such, activity and any terms, conditions, warranties or representations associated with such, shall be solely between you and the applicable third-party. POS.com and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. POS.com does not endorse any sites on the Internet that are linked through the Solution. POS.com provides these links to you only as a matter of convenience, and in no event shall Linga POS ® or its licensors be responsible for any content, products, or other materials on or available from such sites. POS.com provides the Platform to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
11 – Term
This Agreement commences on the date you confirm subscription and renews monthly until terminated by you or POS.com. The full fee amount of the plan you selected is due and payable when you confirm the sales. The term is indefinite and may be terminated at any time by Linga POS ®’s sole discretion. Either party may terminate this Agreement or make plan changes.
12 – Charges
You shall pay all fees and charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments must be made monthly in advance. All subscription obligations and payments are non-cancelable and nonrefundable.
POS.com service will automatically renew and charge your credit card or initiate an ACH withdrawal from your bank account on file monthly or according to agreed upon schedule. The renewal charge will be equal to the agreed plan that you are enrolled in. Changes to the fees associated with your plan will be reflected on POS.com website, or invoices, quotes, website. POS.com will add to the published service fees applicable taxes, levies, or duties imposed by the appropriate authorities.
You agree to provide POS.com with complete and accurate billing and contact information. This information is to remain current at all times. POS.com reserves the right to terminate your access to the POS.com Platform, in addition to any other legal remedies, if the contact information you have provided is false or fraudulent.
Termination or Suspension for Non-Payment
POS.com reserves the right to suspend or terminate this Agreement and your access to your Platform if your account becomes delinquent. You will continue to be charged for your plan subscriptions during any period of suspension. You agree and acknowledge that POS.com has no obligation to retain Business Owner Data and that such Business Owner Data may be irretrievably deleted if your delinquent account is not cured within 30 days.
Termination for Cause
Any breach of your payment obligations or unauthorized use of the POS.com Solution will be deemed a material breach of this Agreement. POS.com in its sole discretion may terminate your password, account or use of the Solution if you breach or otherwise fail to comply with this Agreement. In addition, POS.com may terminate a free account at any time in its sole discretion. You agree and acknowledge that POS.com has no obligation to retain the Business Owner Data, and may delete such Business Owner Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of such breach.
You agree to hold harmless and indemnify POS.com and its subsidiaries, affiliates, officers, agents, vendors and employees from and against any third party claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs, and attorneys’ fees, of every kind and nature.
Confidentiality and Non-Disparagement
In the event that POS.com terminates your use of the Solution or you elect to cancel service, as per the terms and conditions of this agreement you are to maintain in strict confidence the reasons for which the service was ended, except as may be required by law. Furthermore, you agree not to disparage POS.com or any of its officers, directors or employees by any means including but not limited to blogs, posts on social medial, emails, industry websites, or general publications. For purposes of this agreement and section, “disparage” shall mean any negative statement, whether written or oral, about POS.com or any of its officers, directors or employees. You agree and acknowledge that this non-disparagement provision is a material term of this agreement.
17 – Notice
POS.com may give notice by means of electronic mail to your e-mail address on record or by written communication sent by first-class mail to your address on record. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail) or 12 hours after sending (if sent by email). You may give notice to Linga POS ® via email through such a facility provided on the Linga POS ® website.
18 – Internet
POS.com SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LINGA POS ® IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. YOU ARE RESPONSIBLE FOR PROCURING AND MAINTAINING THE APPROPRIATE INTERNET SERVICES REQUIRED FOR YOUR USE OF THE SOLUTION.
19 – Warranty
POS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLAYFORM OR ANY CONTENT. POS.com AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT USE OF THE SOLUTION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; OR THAT THE SOLUTION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS WHETHER OR NOT EXPRESSED, OR THAT ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT THE QUALITY OF THE SOFTWARE HARDWARE AND SUBSCRIPTION SERVICE OBTAINED BY YOU THROUGH POS.COM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR THAT ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THE SOLUTION OR THE SERVER(S) THAT MAKE THE SOLUTION AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PLATFORM AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY POS.com AND ITS LICENSORS.
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE MONTH’S PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS PLATFORM, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PLATFORM, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE PLATFORM, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Governing Law, Arbitration, Jurisdiction and Venue
YOU AGREE TO WAIVE ALL RIGHTS TO TRIAL BY JURY. PRIOR TO INSTITUTING ARBITRATION, THE PARTIES SHALL MEET IN GOOD FAITH AND ATTEMPT TO RESOLVE ANY DISPUTE ARISING FROM OR RELATED TO THE AGREEMENT THROUGH NON-BINDING MEDIATION.
IF MEDIATION IS UNSUCCESSFUL, ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT, OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES. EACH PARTY TO THE ARBITRATION SHALL BE RESPONSIBLE FOR ITS OWN COSTS AND EXPENSES OF ARBITRATION, INCLUDING LEGAL AND FILING FEES. ARBITRATION SHALL RESIDE EXCLUSIVELY IN LEE COUNTY, STATE OF FLORIDA, FORT MYERS, USA OR IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT, IN FORT MYERS, FLORIDA AND YOU HEREBY WAIVE ANY JURISDICTION, VENUE OR INCONVENIENT FORUM OBJECTIONS TO SUCH COURTS.
IN THE EVENT
THAT YOU BRING ANY CLAIMS ARISING OUT OF, RELATING TO OR CONCERNING THESE TERMS
& CONDITIONS NOT SUBJECT TO ARBITRATION SHALL RESIDE EXCLUSIVELY IN LEE
COUNTY, STATE OF FLORIDA, FORT MYERS, USA OR IN THE UNITED STATES DISTRICT
COURT FOR THE MIDDLE DISTRICT, IN FORT MYERS, FLORIDA, USA AND YOU HEREBY WAIVE
ANY JURISDICTION, VENUE OR INCONVENIENT FORUM OBJECTIONS TO SUCH COURTS.
1 – ACCEPTANCE, GOVERNING PROVISIONS AND CANCELLATIONS
No order of any POS.com (hereafter “POS ” or the “Company”) equipment or services shall be binding upon POS.com POS its subsidiaries, affiliates, officers, agents, and employees until accepted in writing by an authorized representative of the Company or by shipment or other performance of such order. Any such order shall be subject to this Refund Policy, Sales Terms and Conditions Agreement and other policies reflected on our site. The purchaser agrees to be bound by the terms of this document and all aforementioned.
accepted by POS may be altered or modified by purchaser unless agreed to in
writing by an authorized representative of the Company. No such order may be
canceled or terminated except upon payment of the Company’s loss, damage or
expense arising from such cancellation or termination.
No modified or other conditions will be recognized by POS.com ® unless specifically agreed to in writing. Failure of the Company to object to provisions contained in any purchase order or other communication from purchaser (including without limitation, penalty clauses of any kind) shall not be construed as a waiver of these Conditions nor an acceptance of any such provisions.
Any contract for sale and these Conditions shall be governed by and construed in according with the laws of the State of New York, USA without regard to conflict of law principles. All references to dollars in these conditions of any and all sales shall mean U.S. dollars.
No contracts for services purchased on the website are binding until explicitly accepted by the Company. This can take up to THREE Business days.
LIMITATION OF LIABILITY
Anything to the contrary herein contained notwithstanding, the Company, its contractors and suppliers of any tier shall not be liable in contract, in tort (including negligence or strict liability) or otherwise for any special, indirect, incidental or consequential damages whatsoever. The remedies of the purchaser set forth herein are exclusive where so stated and the total cumulative liability as stated above shall not exceed the price of the product or part on which such liability is based.
3 – RETURN
All products must be returned in the same condition it was delivered. The product must be accompanied with its original box and all packing materials.
For all items that, you have 30 calendar days to return an item from the date you received it. There are some items, however, that are ineligible for returns such as opened software, consumable products, electronic software downloads or products that are deemed nonreturnable by product’s manufacturer.
A 30% restocking fee will apply for all returns.
4 – REFUNDS
We do not offer refunds on any Professional Service, MSP, Maintenance, Software Development Time, Software As a Service Fees, Hosting fees, and subscription fees.
5 – RETURN OF
FAULTY PRODUCT OR EQUIPMENT
No product or equipment may be returned without first obtaining POS’s written Return Material Authorization due to faulty product or damaged equipment.
Any and all product or equipment to be returned to the Company is subject to all the terms and conditions of this Refund Policy, Sales Terms and Conditions Agreement and other policies reflected on our site. It’s the customer’s responsibility to create a backup of their own data, and remove all personal private Data, or any personal identification information from the products prior to returning to the Company.