Website Grand Opening!
Terms of service
These Terms and Conditions govern your access to and use of the Website and Webpages, mobile site and/or app (the "Sites") operated by POS360, Inc. (“POS360”, “we”,”our”, or “us”) which are being provided to you on behalf of our service partner, retail liquor store (“Retailer”) to allow you to search your Retailer’s product inventory, order products and services from your Retailer, gain access to product and service promotions, and track your frequent shopper/loyalty credits all from the convenience of your mobile device.
These Terms and Conditions apply to all persons who visit any of the Sites ("Visitors"), regardless of a Visitor’s purpose, use, or amount of use. In these Terms, "you" and "your" refer to each Visitor and his or her agents (unless the context requires otherwise), and "we", "us" and "our" refer collectively to POS360.
Accessing the Sites, in any manner, whether automated or otherwise, constitutes use of the Site and your Agreement to be bound by these Terms and Conditions, our Privacy Policy, and any additional terms and conditions which are referenced herein or otherwise may apply to specific sections of the Site, or to products and services which we make available to you through the Site (all of which are deemed part of these Terms and Conditions).
We reserve the right to change these Terms and Conditions or to impose new Terms and Conditions on use of the Site, from time to time, in which case we will post the revised Terms and Conditions on this Website and update the "Last Updated" date to reflect the date of the changes. By continuing to use the Sites after we post any such changes or notify you of any material changes, you accept the Terms and Conditions, as modified.
We also reserve the right to deny access to the Site or any features of the Site to anyone who violates these Terms and Conditions or who, in our sole judgment, interferes with the ability of others to enjoy our Site or infringes the rights of others.
IN CONSIDERATION FOR ACCESS TO THE WEBSITE, YOU AGREE TO READ THE AGREEMENT CAREFULLY BEFORE FURTHER ACCESSING OR USING THE WEBSITE. BY FURTHER ACCESSING OR USING THE WEBSITE, YOU REPRESENT, WARRANT, AND ACKNOWLEDGE THAT:
THE WEBSITE IS NOT INTENDED FOR CHILDREN. YOU MUST BE AT LEAST TWENTY-ONE (21) YEARS OF AGE TO USE THE WEBSITE;
YOU HAVE READ AND UNDERSTOOD THE AGREEMENT AND THE PRIVACY POLICY;
YOUR USE OF THE WEBSITE IS FOR YOUR SOLE AND PERSONAL USE;
YOU ARE NOT A COMPETITOR OF POS360, ARE NOT ACCESSING OR USING THE WEBSITE ON BEHALF OF A COMPETITOR OF POS360, AND WILL NOT USE THE WEBSITE IN A COMPETITIVE ATMOSPHERE WITH POS360;
YOU HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE WEBSITE OR THE SYSTEM; AND
YOU AGREE TO BE BOUND BY THE AGREEMENT AND THE PRIVACY POLICY, WHICH GOVERNS YOUR ACCESS TO AND USE OF THE WEBSITE AND YOUR RELATIONSHIP WITH POS360.
Security of Information
POS360 maintains their systems in accordance with commercially reasonable industry standards to preserve the integrity and security of your User Information and Your Content. POS360 is constantly seeking to improve the Website and the System and how the Website and the System Shares your User Information and Your Content. We cannot, however, ensure or warrant the security of any such information you share via the Website and you do so at your own risk. Once we receive your User Information and Your Content, we make commercially reasonable efforts to ensure the security of our systems. However, this is not a guarantee that such information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards. “Perfect Security" does not exist on the Internet, and your use of the Website is at your own risk.
POS360 Intellectual Property
You hereby represent, warrant, and acknowledge that all POS360 Intellectual Property (IP) is owned, controlled, or licensed by POS360 and is protected by copyright, as a trademark, patent, or by other Intellectual Property rights. Unless otherwise noted, the Website, the Site, and the Console, and all Intellectual Property on or that constitutes the Site and the System, including, but not limited to the Website and the Console is POS360 IP, including, but not limited to, the object code and underlying source code thereof, the tradenames thereof and trademarks thereon, and the selection, sequence, "look and feel", and arrangement of items therein. You agree you shall acquire no rights in any POS360 IP unless otherwise noted in writing by POS360. You may not copy, reproduce, frame, republish, download, upload, post, transmit, distribute, hyperlink, or exploit any POS360 IP for commercial use in any way beyond what is permitted by the Agreement without the prior written consent of POS360.
Your Account
You may create a personal Account to place an order using the Site. You have the ability to purchase on our Site without creating an Account; however, you will need to re-enter your Personal Information each time you use our Site in order to make a purchase.
If you create an Account, you may be asked or required to provide your personally identifiable information, such as your name, address, phone number or email address (“Personal Information”). Please see our Privacy Policy for more information on how we protect your Personal Information.
If you create an online Account, you agree to provide truthful, accurate and complete information about yourself as prompted by the online or mobile forms. If we have reasonable grounds (as determined by us in our sole discretion) to suspect that the Personal Information you provide for opt-in or registration purposes is untrue, inaccurate or incomplete, we have the right to refuse, with or without notice, any and all current or future requests you make through the Site and/or to suspend or terminate your Account.
We shall have no liability associated with or arising from your failure to maintain accurate Personal Information in connection with your Account, including, but not limited to, your failure to receive critical information about POS360 and/or the Sites.
Your selection and use of an Account username and password, and any other information required for security access and authentication purposes, are subject to these Terms. You agree not to share your username, password and any security-related information with anyone. You are responsible for all use of your Account and for ensuring that access to and use of your Account complies fully with these Terms and Conditions. You acknowledge and agree that any use of your Account through your username, password and security information shall be deemed to be your actions, which we may rely upon. You are responsible for protecting the confidentiality and security of your Account.
License to User
POS360 hereby grants you a limited, personal, non-exclusive, non-assignable, non-transferable, non-sub-licensable, freely and fully revocable license to access and use the Website in order to Share Your Content and your User Information with POS360 and your Retailer via the System, to Share Your Content with other Users via the Website, to access the System in order to purchase products and services from your Retailer, to contact your Retailer, to access and use Content Shared via the System by POS360, your Retailer, other Users, and our affiliates, to store your User Information and Your Content on the System for such purposes, and to scan product bar codes in order to determine if your Retailer carries such product.
Site Content
Copyright Notice
All text, graphics, logos, icons, images, audio clips, video clips and software on the site (“Content”) are copyrighted materials owned by or licensed to POS360. Content may contain trademarks, service marks, trade names, or brand or product names which are owned by POS360 or by Third-Parties who license them to POS360. Unless authorized in writing by an officer of POS360, you may not use any Content. Even if we consent in writing, you may not use any of our Content in any manner which is likely to cause confusion among customers, or in any manner that disparages or discredits us. You may not sell, reproduce, distribute, copy, duplicate, resell, modify, display, publicly perform, prepare derivative works based on, frame, mirror, repost, exploit for any commercial purpose, or otherwise use any of the Content in any way for any public or commercial purpose without our prior written consent or the consent of the rights holder if not us. You may not use the Content on any other website or medium. You may not use the Content in a networked computer environment for any purpose other than to transact with our site as authorized by us. If you violate any of these Terms, your permission to use the Content will automatically terminate, you must immediately destroy Content in your possession or under your control and any copies you have made and we may end your authorization to use our Site. Nothing shall be construed as conferring any license or right under any copyright, trade secret, patent, trademark or other Intellectual Property Rights to you and we expressly reserved all such rights.
Prohibitions
You may not, nor shall you permit any Third-Party to, directly or indirectly:
modify, edit, copy, reproduce, create any Derivative Work from, or reverse engineer, alter, enhance, use, or exploit any POS360 IP for any purpose unless otherwise stated in writing by POS360;
take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the System;
“scrape” the Site or the System, including, but not limited to, the Website and the Console, or use any bot, spider, scraper, data miner, or automated agent to access or use the System or gain access to or use any information on System;
decipher, decompile, reverse engineer, reverse compile, or otherwise dissemble or attempt to decipher, decompile, reverse engineer, reverse compile, or otherwise disassemble any POS360 IP, including, but not limited to the source and object code thereof, or otherwise determine the source code of any POS360 IP;
rent, sell, lease, license, sublicense, lend, distribute, or otherwise transfer or assign your Account or any POS360 IP or any portion thereof to any Third-Party, or otherwise use or allow the use of your Account, any POS360 IP, or any portion thereof to be used for any purpose outside the purposes of the Agreement or on behalf of any Third-Party other than POS360 or your Retailer;
Violate, infringe, or misappropriate other people’s Intellectual Property, privacy, publicity, or other legal rights;
remove any proprietary notices from any POS360 IP;
post or otherwise make available any POS360 IP, or any portion thereof, in any form, available on any publicly available forum, including, but not limited to the Internet;
use a previous version of the Website after you have received a new version and are asked to discontinue using the previous version;
use or access any POS360 IP for any unauthorized purpose;
use any POS360 IP in a competitive manner with POS360;
use any POS360 IP to violate any U.S. federal, state, or local law, rule, or regulation;
interfere with or disrupt the integrity or performance of System or the Content contained therein; or
attempt to gain unauthorized access to the Website, the Console, the Site, the System, or any other POS360 IP, system, or network;
Intentionally or unintentionally violate any law, regulation or these Terms and Conditions;
Post, share, send, or otherwise use the Sites to do anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
Transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
You are responsible for your use of the Site, and for any use of the Site made using your account. Use of our Site is solely and fully at your own risk and you assume full responsibility for all costs and expenses associated with that attempted, alleged or actual use or access of our Site.
Links
Our Platform and Services may contain links to other Websites. Please be aware that we are not responsible for the privacy practices of other Websites, regardless of whether the link was provided by us or posted by a user on the Platform. POS360 does not monitor the content, safety, or suitability of such external Websites. As such, this Privacy Notice only applies to information collected by us through the Services or on the Platform. We do not control and are not responsible for any use of your Personal Information by or through any Third-Party sites. By clicking a link to an external website, you assume the risk that Personal Information you provide on that website may be viewed or used by Third-Parties. When visiting any Website, it is in your best interest to review that site's Privacy Notice and Terms of Service before providing any Personal Information.
Reservation of Rights
POS360 reserves all rights not expressly granted in the Agreement unless otherwise noted in writing by POS360.
Prevention of Unauthorized Access or Use
POS360 reserves the right to exercise whatever lawful means POS360 deems necessary to prevent unauthorized access to or use of any POS360 IP, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet service provider or law enforcement regarding such unauthorized use.
Errors on Our Site
Prices and availability of products and services are subject to change without notice. Errors will be corrected where discovered and POS360 and your Retailer have the right to refuse or cancel any orders placed for products and/or services listed at an incorrect price, rebate or refund or other promotional offer or containing any incorrect information or typographical errors. We have the right to refuse or cancel any such orders, whether or not the order has been confirmed and/or your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall issue a credit to your credit card account in the amount of the charge. Individual bank policies will dictate when this amount is credited to your account.
Product Orders Using Our Sites
Order Acceptance/Confirmation
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. POS360 and your Retailer reserves the right at any time after receipt of your order to accept or decline your order for any reason.
Transactions with Retailer
The Website is a software application that allows you to purchase products and services from your Retailer (a “Transaction”). You hereby represent and warrant that all Transactions are between you and your Retailer, that POS360 is not a Party to such Transactions, that POS360 bears no responsibility for examining or evaluating the quality or any other aspect of products and services provided by your Retailer, and that POS360 shall bear no liability or responsibility to you or any Third-Party resulting from the Transaction or the products or services provided to you by your Retailer. You also agree that unless otherwise stipulated by the Retailer, all sales are final and no refunds are permitted.
By placing a Transaction via the Website, you are authorizing your Retailer’s payment processor and Point-of-Sale system vendor to charge your credit card or other payment method. Transactions processed via the Website may also be subject to the Terms and Conditions of your Retailer and your Retailer’s payment processor and Point-of-Sale system vendor. POS360 does not provide refunds via the Website for any Transactions. You hereby agree to address any disputes or refunds regarding any Transaction directly with your Retailer. You hereby represent and warrant that should you dispute any charge that appears on your credit card or other payment statement related to any Transaction that any chargeback shall apply directly to your Retailer.
Product And Service Availability Timeliness, and Pricing Disclaimer
You hereby represent and warrant you understand POS360 and your Retailer cannot guarantee the availability of any product or service offered via the Website. Furthermore, should you request delivery, neither POS360 nor your Retailer can guarantee delivery at any particular time or within any particular period of time.
Additionally, prices of all products and services displayed in the Website are subject to change without notice. While POS360 and your Retailer make every effort to provide you the most accurate, up-to-date information, occasionally, one or more products or services may be mis-priced on occasion on the Website. In the event a product or service is listed at an incorrect price due to typographical, photographic, or technical error or error in pricing information received from our suppliers, your Retailer shall have the right to refuse or cancel any orders placed for product listed at the incorrect price.
Order Limitations and Product Availability
POS360 and your Retailer may, at our discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by the same account or individual, the same credit card, and orders that use the same billing and/or shipping address. In the event we make a change to an order, we will attempt to notify you by contacting the e-mail and/or billing address provided at the time the order was made.
Not all items listed on the Site are available for sale in all Stores, or the prices, promotions, and quantities may vary depending on the state or Store location. Some items, especially highly-allocated or limited quantity items, may be listed on the Site but may not be available for sale or in the quantities indicated. We reserve the right, in our sole discretion, to restrict or refuse the sale of any such items if the quantities held in inventory exceeds the demand for those items. Please check with the Store for current availability.
In-Store Pickup
All Retailers Permit In-Store Pickup. Once confirmed, all orders are subject to product availability and will be available for pickup at the Store you designated in your order according to our pickup policies. We will use the e-mail address provided with the order to contact you when your order is ready for pickup. Some states require the person who placed the order to pick up the order; other states allow someone else to pick up the order on your behalf. Check with your ISP Store to determine what rules apply. Any person picking up an order In-Store must be 21 and older and must present a valid government-issued identification.
If you have not picked up your order within two (2) days of placing it, the Retailer will attempt to notify you by contacting you with the information provided at the time the order was made. We reserve the right to cancel the order, return the products or other goods, and issue a credit to the credit card used to place the order in the amount of the charge corresponding to the intended purchase. Individual bank policies will dictate when this amount is credited to your account. See Store Pick-Up for more information.
Delivery
Delivery to your home, office or event location is available from some Retailer locations, depending on state law. Where permitted, you (or, where allowed, your designee) must be 21 or older and must present a valid government-issued identification in order to obtain your shipment. Delivery fees may apply. See Delivery for more information.
In General
The Website allows you to Share your User Information over the System with, between, and amongst POS360 and your Retailer. By choosing to Share your User Information, you represent and warrant your User Information is true, up to date, and you are solely responsible for your User Information and the ramifications and results of your choice to Share your User Information. You also agree that Apple is not a sponsor of, nor endorses the use of, POS360 Rewards. By using the Website, you also affirm that you conform to the eligibility requirements set forth in the section entitled “Eligibility”.
Notice of Infringement
If you are a copyright owner and have a good faith belief that any Content posted on or transferred through the System infringes your copyright(s), you may send POS360’s “Designated Copyright Agent”, as identified hereinafter, written Notice of Infringement pursuant to the DMCA. This Notice of Infringement must contain the information specified below in the following format:
(i) identify in sufficient detail the copyrighted work claimed to have been infringed; if multiple copyrighted works are covered by a single Notice of Infringement, provide a representative list of such works;
(ii) identify in sufficient detail the material that is claimed to be infringing and information reasonably sufficient to permit POS360 to locate the material (e.g., provide the Uniform Resource Locator, “URL,” of the material claimed to be infringing);
(iii) provide information reasonably sufficient to permit POS360 to contact you (e.g., a street address, telephone number, and e-mail address if available);
(iv) provide a statement which illustrates your good faith belief the use of the copyrighted material in the manner described in the Notice of Infringement is not authorized by the copyright owner, its agent, or the law;
(v) provide a statement, made under penalty of perjury, that the information provided in the Notice of Infringement is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner of an exclusive right which is allegedly infringed; and
(vi) provide the physical or electronic signature of the copyright owner or someone authorized to act on the owner's behalf.
The Notice of Infringement must be submitted to POS360’s Designated Copyright Agent by mail or e-mail as set forth below:
Mail: 2829 Townsgate Road Suite 300, Westlake Village, CA 91361
Email: aco@pos360.com
Be advised that failure to comply with all of the above requirements may invalidate your Notice of Infringement under the DMCA. POS360’s response to a proper Notice of Infringement will be to remove or disable access to the Content claimed to be infringing and notify the alleged infringer of your claim so he or she can submit a Counter Notice to POS360.
Counter Notice
If Your Content was removed or access was denied and you believe in good faith that it is not infringing on any copyrighted material, you may send POS360 a written Counter Notice pursuant to Section 512 of the DMCA. The Counter Notice must contain the information specified below in the following format:
(i) identify in sufficient detail the Content POS360 has removed or to which POS360 has disabled access and the location of the material (e.g., the URL) before it was removed/disabled;
(ii) provide your name, address, telephone number, and e-mail address;
(iii) a statement which outlines you consent to the jurisdiction of the federal district court in which your address is located, and a statement that you will accept service of process from the person who provided notification of the alleged infringing activity;
(iv) provide a statement, made under penalty of perjury, that you have a good faith belief that the material was removed/disabled as a mistake or misidentification of the material; and
(v) provide your physical or electronic signature.
The Counter Notice must be submitted to POS360’s Designated Copyright Agent by mail or email as set forth below:
Mail: 2829 Townsgate Road Suite 300, Westlake Village, CA 91361
Email: aco@pos360.com
Subject: DMCA Notice
Be advised that failure to comply with all of the above requirements may invalidate your Counter Notice under the DMCA. If the Designated Copyright Agent receives your valid Counter Notice, POS360 may restore your removed Content or cease disabling it within ten to fourteen (10-14) business days, unless POS360 receives notice from the alleged copyright owner (who filed the initial Notice of Infringement) that said party has filed a court action seeking to stop your alleged infringement.
Trademark Notice
You agree that in the event that POS360 receives a written demand alleging that any of Your Content infringes upon, dilutes, tarnishes, or otherwise violates trademark rights, POS360 may in its sole discretion, remove or disable access to such Content until POS360 receives either:
(a) written confirmation from the Party sending such demand that the demand is withdrawn or has been resolved or
(b) you submit sufficient evidence to satisfactorily rebut the allegations contained in such demand, the adequacy of such evidence to be determined by POS360 in POS360’s™ sole discretion and which POS360 may reject for any reason without penalty or liability to you.
In order for POS360 to accept such rebuttal, you expressly acknowledge and agree that such rebuttal shall include:
1) the information set forth in Section VIII hereinabove, except that the such information shall relate to the disputed trademark at issue rather than disputed copyrighted material and
2) an express, irrevocable, and binding obligation pursuant to which you shall indemnify, defend, and hold harmless POS360 from damages, costs, or expenses which POS360 may incur, in any manner whatsoever, arising out of or in connection with the disputed Content and POS360’s restoration thereof.
The procedures of the DMCA apply only to copyrighted works and expressly exclude any other forms of Intellectual Property rights, including any rights in trademarks; the process hereinabove is intended only to provide a convenient mechanism for addressing trademark disputes and does not, and shall not, be construed, as imposing any obligation on POS360 under the DMCA with regards to response times or the like. POS360 is under no obligation to restore access to any removed Content even if you provide the aforementioned rebuttal.
Changes to the Website, the System, and the Site
POS360, our Retailers, and our affiliates are seeking to improve our integration and the services available to you. POS360 may discontinue or change any content, service, function, or feature of the Website, the System, or the Site at any time with or without notice.
Acknowledgement
THE SYSTEM, INCLUDING, BUT NOT LIMITED TO, THE WEBSITE AND THE CONSOLE, IS ALWAYS UNDER ONGOING DEVELOPMENT AND TESTING. POS360, OUR RETAILERS, AND OUR AFFILIATES DESIRE TO OBTAIN INPUT FROM YOU TO ASSIST US IN THE ONGOING DEVELOPMENT OF THE SYSTEM. YOU EXPRESSLY REPRESENT AND WARRANT THAT YOU ARE WILLING TO PROVIDE THAT INPUT. ACCORDINGLY, YOU ACKNOWLEDGE THAT THE SYSTEM MAY CONTAIN BUGS AND OTHER ERRORS WHICH COULD ADVERSELY AFFECT THEIR USE OR PERFORMANCE; THE SYSTEM, INCLUDING, BUT NOT LIMITED TO THE WEBSITE, MAY CONTAIN INOPERABLE FEATURES, MAY CONTAIN ERRORS, AND MAY BE INCOMPLETE; AND YOU SHOULD TAKE EXTRA CARE IN PRESERVING YOUR CONTENT IN ORDER TO AVOID ANY LOSS OF YOUR CONTENT AS A RESULT OF USING THE WEBSITE.
Disclaimer of Warranties
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, POS360 DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS WITH REGARDS TO THE SITE AND THE SYSTEM, INCLUDING, BUT NOT LIMITED TO THE WEBSITE.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND THE SYSTEM, INCLUDING, BUT NOT LIMITED TO THE WEBSITE, IS SOLELY AT YOUR OWN RISK. THE SITE AND THE SYSTEM, INCLUDING, BUT NOT LIMITED TO THE WEBSITE AND CONSOLE, ALL CONTENT THEREON, AND ALL POS360 IP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. POS360 DOES NOT WARRANT THAT THE DATA, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SITE OR THE SYSTEM WILL BE UNINTERRUPTED OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
POS360 DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, THE SYSTEM, OR ANY OTHER POS360 IP IN TERMS OF USE OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Limitation of Liability and Damages
IN NO EVENT WILL POS360, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, RETAILERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE TO YOU FOR ANY THIRD PARTY CLAIM FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, YOUR USE OF THE SITE OR THE SYSTEM, OR YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY AGREE TO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
Indemnification
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD POS360 OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, RETAILERS, SERVICE PROVIDERS OR LICENSORS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, ACTIONS, LIABILITIES, LOSSES, EXPENSES, OR DAMAGES, INCLUDING REASONABLE ATTORNEY FEES AND EXPENSES, WHICH MAY HEREAFTER ARISE, WHICH POS360 AND OUR RETAILERS MAY SUSTAIN DUE TO OR ARISING OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY MADE HEREIN, YOUR BREACH OF THE AGREEMENT, YOUR NEGLIGENT ACT OR OMISSION, YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER, YOUR ACTS IN VIOLATION OF THE AGREEMENT OR ANY APPLICABLE LAW, STATUTE, OR REGULATION OF THE UNITED STATES OR THE JURISDICTION IN WHICH YOU RESIDE, OR YOUR CONTENT, OR CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY YOUR ACCESS TO AND USE OF THE SITE, THE SYSTEM, ANY OTHER POS360 IP, OR CONTENT SHARED BY POS360, OUR RETAILERS, OR OUR AFFILIATES OR YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER.
Arbitration Agreement
PLEASE READ THIS PROVISION CAREFULLY. IT INCLUDES AN AGREEMENT TO MANDATORY BINDING ARBITRATION, WHICH MEANS YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF ANY OF THE SITES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. THIS PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. THIS AGREEMENT ALSO INCLUDES A JURY WAIVER.
It is POS360’s goal that the Site meets your expectations and you are satisfied. However, there may be instances when you have a problem or dispute which needs special attention. In those instances, we are committed to working with you to reach a reasonable resolution which satisfies you; however, we can only do this if we are aware of and understand your issue. Therefore, for any problem or dispute you may have with POS360, you acknowledge and agree you will first give POS360 an opportunity to resolve your problem or dispute. This includes you first sending a written description of your problem or dispute to 2829 Townsgate Road Suite 300, Westlake Village, CA 91361, Attn: Legal Department, Re: Customer Dispute. You then agree to negotiate with POS360 in good faith about your problem or dispute. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within sixty (60) days after POS360’s receipt of your written description, you agree to the following dispute resolution provisions below.
You agree the sole and exclusive forum and remedy for any and all disputes and claims which cannot be resolved informally and relate in any way to or arise out of your use of any of the Site and these Terms shall be final and binding arbitration, except to the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate any of the POS360 Entities or any Third-Party patent, copyright, trademark, trade secret, privacy or publicity rights, in which case you acknowledge there is no adequate remedy at law and that injunctive or other appropriate relief may be sought by the POS360 Entities and/or the applicable Third-Party(ies) either in court or from an arbitrator. You and we acknowledge that the Agreement affects interstate commerce and that the Federal Arbitration Act and Federal Arbitration Law apply to arbitrations under the Agreement (despite any other choice of law provision). To the extent that the Federal Arbitration Act and Federal Arbitration Law do not supply substantive law necessary for the resolution of any disputes or claims, the laws of the State of California shall apply. To the extent that the Parties litigate any part of any dispute or claim in court, including, without limitation, obtaining provisional remedies in aid of arbitration, confirmation of the award, and judgment enforcement, the laws of the State of California shall apply.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (“AAA”). The arbitration shall be administered by AAA pursuant to its Consumer Arbitration Rules. If the arbitration results in an award, then judgment of the award may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You and any of the POS360 Entities, as applicable, agree to pay our own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. You agree that any claim for or award of attorney fees, including such claim or award pursuant of Chapter 38 of Texas Civil Practice and Remedies Code, is waived. An arbitrator may award on an individual basis any relief. As a limited exception to the agreement to arbitrate, you and we agree that you may take claims to small claims court, if your claims qualify for hearing by such court.
To the fullest extent permitted by applicable law, NO ARBITRATION OR OTHER CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER VISITOR OF THE SITES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction and not in arbitration.
YOU AGREE THAT, WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, YOU AND POS360 BOTH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN PARTIES.
In no event shall any claim, action or proceeding by you related in any way to this Arbitration Agreement be instituted more than two (2) years after the cause of action arose.
Other
This Agreement constitutes the entire Agreement between POS360 and you with respect to the subject matter contained in this Agreement and supersedes all previous and contemporaneous agreements, proposals and communications, written oral. You also may be subject to additional terms and conditions which may apply when you use the products or services of a Third-Party which are provided through the Site.
In the event of any conflict between any such Third-Party’s Terms and Conditions and these Terms and Conditions, these Terms and Conditions will govern.
Under no circumstances will POS360 be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
If any provision of these Terms and Conditions is found to be unlawful or unenforceable, then the provision will be deemed severable from these Terms and Conditions and will not affect the enforceability of any other provisions.
The failure of POS360 to enforce any right or provision of these Terms and Conditions will not prevent POS360 from enforcing such right or provision in the future.
POS360 may assign rights and obligations under these Terms and Conditions, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.