Conditions générales
END USER LICENSE AGREEMENT FOR POINT OF SALE
This End-User License Agreement ("EULA" ) is a legal agreement between you (either
an individual or a legal entity) and Point of Sale, LLC (the "Company") for the
point of sale system accompanying this EULA, which includes computer software and
may include associated media, printed materials, online or electronic documentation, and
Internet-based services (the "Software"). Any amendment or addendum to this EULA
may accompany the Software and in such case, such amendment or addendum shall be an
integral part of this EULA. YOU AGREE TO BE BOUND BY THE TERMS AND
CONDITIONS OF THIS EULA, BY DOWNLOADING, INSTALLING, COPYING,
OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE
TERMS OR CONDITIONS IN THIS EULA, DO NOT DOWNLOAD, INSTALL,
COPY, OR USE THIS SOFTWARE.
1. NON-EXCLUSIVE LICENSE ONLY. The Software is protected by copyright
laws and international copyright treaties, as well as other intellectual property laws
and treaties. The Software is licensed to you for use only in accordance with the terms
and conditions of this EULA, and not sold in any sense whatsoever. Company and its
suppliers shall retain title and all ownership rights to the Software and this EULA
shall not be construed in any manner as transferring any rights of ownership of the
Software or to any feature or information contained therein, except the limited rights
to use as specifically stated herein.
2. GRANT OF LICENSE. Company hereby grants you ("Licensee") a limited, non-
exclusive, non-transferrable, non-sub licensable, royalty-free license to make copies
of the Software as needed for the agreed upon purpose, install the Software on the
CPUs of one (1) computer owned by Licensee and stationed on Licensee's premises,
and use the Software solely for the purpose of evaluating or operating the payment
processing devices supplied by Company (the "Purpose").
Licensee may have purchased this License through one of two methods: (i) Download
- Licensee is provided a download link which is valid for one year to download
periodic updates of the Software; or (ii) Hosted - Licensee pays for hosting and
maintenance on Company's server according to fee schedule provided by the
Company. This EULA shall apply to either method.
3. LIMITATIONS. The License granted under Section 2 of this EULA shall be limited
by the following:
(A) Licensee may modify, reverse engineer, decompile, or disassemble the
Software only at Licensee's own risk. COMPANY SHALL NOT BE
LIABLE FOR ANY DAMAGE TO THE SOFTWARE OR LICENSEE'S
EQUIPMENT, SOFTWARE, HARDWARE OR OTHER ASSETS DUE TO
ANY ALTERATION OF THE SOFTWARE.
(B) Licensee may not transfer, sublicense, rent, lease or lend the Software, or
providing commercial hosting services in connection with the Software.
Where the computers installed with the Software is transferred, rented, leased
or lent or passed for possession by any person other than Licensee, Licensee
must completely delete the Software from such computers prior to such
transfer, rental, lease, lending or passing for possession.
(C) Without prejudice to any other rights, Company may terminate this EULA if
Licensee fails to comply with any terms or conditions of this EULA. In such
event, Licensee must destroy all copies of the Software and all of its
component parts upon receipt of a notice of termination by Company and
provide a certificate of destruction to such effect to Company forthwith within
10 days.
(D) Licensee agrees that the Software is owned by Company and/or its suppliers
and all rights not expressly granted herein are reserved by Company and/or its
suppliers, as applicable, and undertakes not to challenge or assist any person
to challenge such rights in any manner.
(E) You agree that Company and its affiliates may collect and use technical
information gathered as part of the product support services provided to you,
if any, related to the Software. Company or its affiliates or suppliers may use
this information solely to improve their products or to provide customized
services or technologies to you and will not disclose this information in any
form that personally identifies you.
4. PRODUCT UPDATES AND MAINTENANCE. Licensee understands and
acknowledges that Company may provide updates or maintenance to the Software
from time to time but Company shall have no obligation to provide any updates or
maintenance to Licensee in relation to the Software licensed to use under this EULA.
In case that Company provides any update or maintenance to the Software, this
EULA shall automatically apply to such update or maintenance, unless Company
provides other terms along with such update or maintenance.
5. FURTHER USE RESTRICTION. Licensee acknowledges that use of the Software
for purposes such as Competitor Evaluation, Reverse Engineering, Decompilation,
and Disassembly is a violation of this EULA and Licensee agrees that such use
constitutes a blatant and flagrant violation and fundamental breach of this EULA and
will be subject to any and all remedies and/or penalties available to Company and/or
its supplier(s) under the applicable law.
6. CONFIDENTIALITY.
(A) Licensee understands that the Software contains confidential, proprietary or
trade secret information (together "Confidential Information") of Company
and/or its suppliers, and shall be maintained in strictest confidentiality.
Licensee agrees that the confidentiality obligations, including without
limitation the following, are an essential part of this EULA and any
unauthorized disclosure by Licensee constitutes a fundamental breach to this
EULA:
(i) not use the Confidential Information disclosed by Company for any
purposes other than the specified Purpose;
(ii) protect Company's Confidential Information in the same manner and
with the same degree of care, but not less than a reasonable degree of
care, against unauthorized use, dissemination, publication or disclosure,
as Licensee uses or protects its own confidential or proprietary
information of a like nature;
(iii) limit the use, circulation of and access to Company's Confidential
Information to Licensee's directors, officers and employees who have a
need to know in connection with the Purpose, are under binding
obligations of confidentiality no less restrictive than those of this EULA,
and have been notified that such information is Confidential Information
for the Purpose, and Licensee shall be held liable if such persons do not
adhere to such requirements;
(iv) not copy any of Company's Confidential Information except as
reasonably required for the specified Purpose;
(v) reproduce Company's proprietary rights notices on any such authorized
copies, in the same manner in which such notices were set forth in or on
the original;
(vi) not reverse engineer, disassemble or decompile any prototype, software
or other tangible object that embody Company's Confidential
Information; and
(vii) notify Company in writing immediately upon the occurrence of any
unauthorized release, disclosure or other breach or upon presence of
threat of such occurrence.
(B) Licensee understands and acknowledges that disclosure or use of the Software
except as authorized above will result in irreparable harm to Company and/or
its suppliers and that monetary damages may be inadequate to compensate
Company and/or its suppliers for such breach. Accordingly, Licensee agrees
that Company will, in addition to any other remedies available to it at law or
in equity, be entitled to injunctive reliefs to enforce the terms of this
Agreement.
7. COPYRIGHT. All title, copyrights and other intellectual property rights in and to
the Software (including but not limited to any images, photographs, animations,
video, audio, music, text, and applets incorporated into the Software), the
accompanying printed materials, and any copies of the Software are owned by
Company and/or its suppliers. The Software is protected by copyright laws, other
intellectual property laws and international treaty provisions. Therefore, Licensee
must treat the Software like any other copyrighted material except that Licensee may
install the Software on authorized computers provided Licensee keep the original
solely for backup or archival purposes only. License may not copy any printed
materials accompanying the Software without express authorization in this EULA or
prior written permission of Company.
8. EXPORT RESTRICTIONS. Licensee acknowledges that the Software licensed
for use hereunder are subject to the export control laws and regulations of the U.S.A.,
and any amendments thereof. Licensee confirms that with respect to the Software,
Licensee will not export or re-export them, directly or indirectly, either to (i) any
countries that are subject to U.S.A export restrictions (currently including, but not
necessarily limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and
Montenegro), Iran, Iraq, Libya, North Korea, South Africa (military and police
entities), Syria, and Vietnam); (ii) any end user who Licensee knows or has reason to
know will utilize them in the design, development or production of nuclear, chemical
or biological weapons; or (iii) any end user who has been prohibited from
participating in the U.S.A. export transactions by any federal agency of the U.S.A.
government. Licensee further acknowledges that the Software may include technical
data subject to export and re-export restrictions imposed by the laws of the U.S.A.
9. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED "AS IS"
AND "WITH ALL FAULTS", WITHOUT WARRANTY OF ANY KIND. TO THE
MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, COMPANY
FURTHER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR BY ESTOPPEL, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, CORRESPONDENCE TO DESCRIPTION OR
SAMPLE, NO DEFECT IN WORKMANSHIP OR MATERIAL, LACK OF
VIRUSES, AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY
TO TITLE, QUIET ENJOYMENT, QUIET POSSESSION, AND NON-
INFRINGEMENT WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK
ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND
DOCUMENTATION REMAINS WITH LICENSEE. NO ACTIVITY, SERVICE,
ADVERTISING, PACKAGING, STATEMENT OR COMMUNICATION BY
COMPANY OR ITS SUPPLIER(S)IN RELATION TO THE SOFTWARE, EVEN IF
PRESENTED IN A FORM OF PRODUCT WARRANTY, WHETHER PRIOR TO,
ON OR POST THE DATE OF THIS EULA, SHALL BE INTERPRETED AS AN
ANNULMENT, IMPAIRMENT OR MODIFICATION TO THIS DISCLAIMER.
10. EXCLUSION OF CLAIMS/REMEDIES. TO THE MAXIMUM EXTENT
PERMITTED BY THE APPLICABLE LAW, IN NO EVENT SHALL COMPANY
AND/OR ITS SUPPLIER(S) BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER
(INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR
CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS
INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR
FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF
REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER
PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN
ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE
SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR
OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT
THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF
THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY
PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT
(INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY,
BREACH OF CONTRACT OR BREACH OF WARRANTY OF COMPANY
AND/OR ANY OF ITS SUPPLIERS, AND EVEN IF COMPANY AND/OR ANY
OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. YOU UNDERSTAND AND AGREE THAT YOU HAVE WAIVED
ALL RIGHTS TO ALL REMEDIES, WHETHER IN LAW OR IN EQUITY,
EXCEPT IN CASE OF A FUNDAMENTAL BREACH BY COMPANY AND/OR
ANY OF ITS SUPPLIERS, YOU HAVE THE EXCLUSIVE AND SOLE REMEDY
TO REQUEST FOR A NEW COPY OF THE SOFTWARE, WHICH COMPANY
HAS THE SOLE DISCRETION TO DETERMINE WHETHER TO SATISFY.
11. GOVERNING LAW AND DISPUTE SETTLEMENT. This EULA shall be
governed by and construed in accordance with the laws of the State of New York. In
case of any dispute arising out of or in connection with this EULA, you have
consented to the exclusive jurisdiction of the federal and state courts sitting in the
county covering Monroe County, New York.
Any dispute, claim or controversy arising out of or relating to this Agreement or the
breach, termination, enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of this agreement to arbitrate, shall be
determined by final and binding arbitration in New York, United States of America
before one arbitrator. The arbitration shall be administered pursuant to its streamlined
Arbitration Rules and Procedures. The language to be used in the arbitral proceedings
will be English. Judgment on the award may be entered in any court having
jurisdiction and will be binding. This clause shall not preclude parties from seeking
provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
The cost of arbitration shall be borne equally by the parties. In the event of a conflict
or inconsistency between the rules and procedures of the arbitration administrator and
this Agreement, this Section shall govern.
12. SEVERABILITY. Should any provision of this Agreement be held to be void,
invalid or inoperative by any court, arbitration panel or other tribunal, the remaining
provisions of this Agreement shall not be affected and shall continue in effect and the
invalid provisions shall be deemed modified to the least degree necessary to remedy
such invalidity.
13. ATTORNEYS' FEES. Should either party to this Agreement institute any action,
arbitration, or proceeding, for injunctive relief, to enforce this Agreement or any
provision hereof, or for damages by reason of any alleged breach of this Agreement,
otherwise arising under this Agreement, or for a declaration of rights hereunder, the
party initiating any such action or proceeding irrevocably and unconditionally agrees
to pay all the other party costs and expenses, including, without limitation, reasonable
attorney's fees, incurred by such arbitration, action or proceeding.
14. MISCELLANEOUS. This EULA (including any of its addendums or amendments)
constitutes the entire agreement between you and Company relating to the Software
and the support or maintenance services therein (if any), and shall replace and
supersede all prior or contemporaneous oral or written communications, proposals
and representations with respect to the Software or any other subject matter covered
by this EULA. To the extent the terms of any Company policies or programs for
support services conflict with the terms of this EULA, the terms of this EULA shall
control. If any provision of this EULA is held to be void, invalid, unenforceable or
illegal, the other provisions shall continue in full force and effect. This EULA may be
modified only in writing. No delay in enforcing a right or remedy under this EULA
shall be deemed to be a waiver. You cannot transfer or assign this EULA or any right
or obligation herein to any person without prior written consent from Company.
Should you have any questions concerning this EULA, or if you desire to contact
Point of Sale for any reason, please contact kpos@kenmoresolutions.com.