SOFTWARE LICENSE AND SERVICES AGREEMENT
Thank you for choosing CellSmart POS Int'l LLC Point of Sale Software and Services.
This Software License and Services Agreement (this "Agreement" together with the Sign Up Page on our website (cellsmartpos.com) (the "Sign Up Page"), if any, is (this "Agreement")) gives you certain rights and responsibilities depending on the software license (the "Software") and services (the "Services") you purchase, as more fully described below. If you do not accept this Agreement, you will not be able to use the Software or Services.
In addition to the CellSmart POS Int'l LLC Point of Sale Software and Services, the term "Software" includes any other programs, tools, internet-based services, components and any "updates" (for example, Software maintenance, service information, help content, bug fixes, or maintenance releases etc.) or "upgrades" of the Software that CellSmart POS Int'l LLC provides or makes available to you after the date you obtained your initial copy of the Software, and the term "Services" includes any other services provided to you after the date of your initial activation of the Services. You are entitled to download updates to the Software that CellSmart POS Int'l LLC generally makes available to other users of the Software.
1. LICENSE GRANT AND RESTRICTIONS.
CellSmart POS Int'l LLC., d/b/a CellSmart POS, a New York corporation ("CellSmart POS Int'l LLC", "us", "we" and "our") grants you ("you", "your" and "Customer" means you the customer on whose behalf the Software is licensed and Services are sold) the following rights provided that you comply with all of the terms and conditions of this Agreement.
License: You May: install the Software on unlimited computers per store location. You are not licensed or permitted under this Agreement and you agree that you shall not, nor permit others to do any of the following:
(a) modify, adapt, translate, rent or sublicense (including offering the Software to third parties on an applications service provider or time-sharing basis);
(b) assign, loan, resell, rebrand, transfer or distribute the Software, or related materials or create derivative works based upon the Software or any part thereof;
(c) decompile, reverse engineer, or disassemble the Software;
(d) copy the Software in whole or part, alter, adjust, repair or circumvent any aspect of the Software, or use trade secret information contained in the Software, to develop software to interface with the Software; and
(e) remove, alter or obscure any confidentiality or proprietary rights notices (including copyright notices) of CellSmart POS Int'l LLC or its licensors on or within the Software or any copies of the Software. Additionally, Customer shall not use, nor shall it permit others to use the Software:
(a) for any unlawful, invasive, infringing, defamatory, fraudulent or obscene purpose;
(b) to send any virus, worm, trojan horse or harmful code or attachment;
(c) to alter, steal, corrupt, disable, destroy, trespass or violate any security or encryption of any computer file, database or network;
(d) so as to interfere with the use of the CellSmart POS Int'l LLC or connectivity partner network by other customers or authorized users; or
(e) in violation of the acceptable use policies of CellSmart POS Int'l LLC service providers, including its backbone providers.
In the event you choose to expand the number of locations that will use Software and Services ("New Locations"), all New Locations will be bound by this Agreement, as of the date of the installation of Software at the New Location (the "Initiation Date"). All terms and conditions of this Agreement, including but not limited to the fees and pricing, shall continue for a period equal to the duration of the Term (if a one year Term then same one year period shall be added to the Initiation Date) and otherwise, and beginning the Initiation Date, unless a new Sign Up Page is executed that has different provisions. You agree that you may be informed pursuant to the Notice provision below about the terms applicable to any New Location. Any non-response, thirty day after receipt of such notice, shall be deemed acceptance of same.
2. RESERVATION OF RIGHTS AND OWNERSHIP.
The Software is licensed, not sold and CellSmart POS Int'l LLC reserves all rights not expressly granted to you in this Agreement. The Software is protected by copyright, trade secret and other intellectual property laws. CellSmart POS Int'l LLC and its licensors own the title, copyright, and other worldwide intellectual property rights in the Software and all copies of the Software. This Agreement does not grant you any rights to trademarks or service marks of CellSmart POS Int'l LLC.
3. THIRD PARTY SERVICES AND WEBSITES.
(a) In connection with the promotion or your use of the Software, you may be made aware of or offered services, features, products, and promotions provided by third parties, and not by CellSmart POS Int'l LLC ("Third Party Services"). If you decide to use Third Party Services, you are responsible for reviewing and understanding the terms and conditions governing any Third Party Services. You authorize CellSmart POS Int'l LLC to use and disclose your contact information, including name and address, for the purpose of making the Third Party Services you choose available to you. You agree that the third party, and not CellSmart POS Int'l LLC, is responsible for the performance of the Third Party Services.
(b) The Software may contain or reference links to third party websites operated by third parties ("Third Party Websites"). These links are provided as a convenience only. Such Third Party Websites are not under the control of CellSmart POS Int'l LLC. CellSmart POS Int'l LLC is not responsible for the content of any Third Party Website or any link contained in a Third Party Website. CellSmart POS Int'l LLC does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, and the inclusion of any link in the Software or Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by CellSmart POS Int'l LLC or its Suppliers (defined below) of any information contained in any Third Party Website. In no event will CellSmart POS Int'l LLC be responsible for the information contained in such Third Party Website or for your use of or inability to use such website. Access to any Third Party Website is at your own risk, and you acknowledge and understand that linked Third Party Websites may contain terms and privacy policies that are different from those of CellSmart POS Int'l LLC. CellSmart POS Int'l LLC is not responsible for such provisions, and expressly disclaims any liability for them.
4. CUSTOMER OBLIGATIONS.
Customer agrees to purchase the Software and Services more particularly described in the Sign Up Page. Customer acknowledges and agrees that Customer must:
(a) provide for its own access to the internet and pay any service fees associated with such access, and
(b) provide all equipment necessary for Customer to make such connection to the World Wide Web, including a computer and modem. Customer shall, at its own expense, provide all necessary preparations required to connect to the Software and Services and comply with CellSmart POS Int'l LLC's installation and maintenance specifications for delivery of the Software and the Services. Customer shall be responsible for the costs of any relocation of its equipment or installation of Software. Additionally, Customer shall provide CellSmart POS Int'l LLC or its agents with reasonable access to Customer's premises to perform any acts required under this Agreement. Customer shall be responsible for all hardware, software, cabling, services and components not provided by CellSmart POS Int'l LLC. If such items impair Customer's use of the Software and Services, Customer shall remain liable for payment to CellSmart POS Int'l LLC for the Software and Services. Upon notice from CellSmart POS Int'l LLC that any such component causes or is likely to cause a hazard, interference or obstruction of the Services, Customer shall eliminate such item promptly, and CellSmart POS Int'l LLC may disconnect the Software and Services immediately until such elimination occurs. CellSmart POS Int'l LLC shall not be responsible:
(a) for the installation, operation, management or maintenance of any hardware, software, cabling or services not provided by CellSmart POS Int'l LLC in connection with the Software and Services;
(b) if any changes in the Software and Services cause hardware, software, configurations, cabling or services not provided by CellSmart POS Int'l LLC to become obsolete or to require modification;
(c) if any modification or configuration performed by Customer impairs the performance of the Software and Services hereunder; or
(d) for the performance or availability of third party services or facilities provided hereunder. Customer represents that, to the best of its knowledge and belief, its use of the Software and Services does not directly or indirectly infringe the legal rights of a third party. Customer further represents and warrants that all information provided by Customer in connection with its registration is accurate and reliable.
5. CUSTOMER CONDUCT ON THE CellSmart POS Int'l LLC WEB SITES.
While using the various CellSmart POS Int'l LLC Web sites, including but not limited to: cellsmartpos.com, that CellSmart POS Int'l LLC may create hereafter, Customer may not:
(a) Restrict or inhibit any other user from using and enjoying the Service;
(b) Post or transmit any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export control laws and regulations; or
(c) Post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial communication (except as otherwise expressly permitted by CellSmart POS Int'l LLC) or engage in spamming or flooding; or
(d) Post or transmit any information or software which contains a virus, trojan horse, worm or other harmful component; or
(e) Post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through the Service for commercial purposes (other than as expressly permitted by the provider of such information, software or other material); or
(f) Post, publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through the Service which is protected by copyright, or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or rightholder; or
(g) Upload, post, publish, reproduce, transmit or distribute in any way any component of the Service itself or derivative works with respect thereto, as the Service is copyrighted as a collective work under U.S. copyright laws. CellSmart POS Int'l LLC has no obligation to monitor the Software or Service. However, Customer acknowledges and agrees that CellSmart POS Int'l LLC has the right to monitor the Software and Service electronically from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Software and Services properly, or to protect itself or its subscribers. CellSmart POS Int'l LLC will not intentionally monitor or disclose any private electronic-mail message unless required by law. CellSmart POS Int'l LLC reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, inappropriate or in violation of this Agreement. CSP 1.1
6. GENERAL PRACTICES REGARDING USE, STORAGE AND SERVICE ACCESS.
Customer acknowledges that CellSmart POS Int'l LLC may establish from time to time general practices and limits concerning use of the Software and Services, in its sole discretion, with or without notice, including without limitation, establishing the maximum amount of storage space Customer have at any time, as well as limiting the number of times (and the maximum duration for which) Customer may access the Software and Service in a given period of time. Customer agrees that CellSmart POS Int'l LLC has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Software or Services. Customer understands that all Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such Content originated. This means that Customer, and not CellSmart POS Int'l LLC, is entirely responsible for all Content that Customer uploads or otherwise transmit via the Software and Services. CellSmart POS Int'l LLC does not control the Content uploaded or otherwise transmitted by Customer or other customers and, as such, does not guarantee the accuracy, integrity or quality of such Content. "Content" means information, data, text (including but not limited to names of files, databases, directories and groups of the same), software, graphics, video, messages or other materials. Customer acknowledges and agrees that CellSmart POS Int'l LLC shall have access to Customer's client data and other information which may be used to produce industry reports, and for maintenance and support purposes.
7. FEES AND PAYMENT.
(a) Customer shall pay the fees and charges set forth in the applicable Sign Up Page, which shall include the costs of third party services or products, including increases thereto (collectively, the "Fees"). Fees shall be invoiced together with any applicable sales, use or other taxes at the beginning of each billing period (monthly, quarterly, yearly) as selected by Customer. Fees and all applicable taxes shall be paid to CellSmart POS Int'l LLC via credit / debit card. CellSmart POS may accept payments via ACH, cash deposited to our bank account, cash at our physical location, PayPal, etc at its sole discretion. Payments are due net same day from the date of CellSmart POS Int'l LLC's invoice and are subject to late charges thereafter, calculated at the maximum rate permitted by law. Any payment that CellSmart POS Int'l LLC is not able to process, such as cancelled checks and returns for insufficient funds, shall incur a charge of $35. CellSmart POS Int'l LLC may suspend performance or provision of the Services, terminate this Agreement or suspend payment of credits due Customer for late payment or nonpayment of Fees and Customer shall be liable for any reasonable attorney's or collection agency fees incurred by CellSmart POS Int'l LLC in connection therewith. If Customer is delinquent in its payments, CellSmart POS Int'l LLC may, upon written notice to Customer, modify the payment terms to require full payment before the further provision of any Services or require other assurances to secure Customer's payment obligations hereunder. Any Services upgrades requested by Customer may result in additional fees or other charges. Except as otherwise stated in a particular Sign Up Page for the Services performed thereunder, CellSmart POS Int'l LLC reserves the right to change the Services it offers to its customers generally and the related rates at any time.
(b) Customer is responsible for any taxes, duties, fees or surcharges that are imposed or authorized by regulatory and governmental entities, including but not limited to sales, use, gross receipts taxes, surcharges, franchise fees, occupational, excise, universal service (state and federal) taxes and surcharges, and shall pay to CellSmart POS Int'l LLC or reimburse CellSmart POS Int'l LLC for amounts paid by CellSmart POS Int'l LLC relating to Services provided to Customer.
(c) Billing shall be provided to Customer by email or fax upon customer's request. If Customer requests that CellSmart POS Int'l LLC send a print copy of an invoice, Customer shall be responsible for payment of an additional fee for such documentation and postage.
(d) If Customer's Service is disconnected due to nonpayment or late payment by Customer, Customer shall be responsible for all costs incurred by CellSmart POS Int'l LLC resulting from such disconnection. Additionally, if Customer requests the restoration of the Services, Customer shall be responsible for any fees related to such restoration of Services, payable prior to restoration.
(e) If Customer Fee's are subsidized by third parties and such third parties decline to pay same, Customer shall be responsible for those quoted on CellSmart POS.com.
(f) If plan prices change, existing accounts will retain the grand-fathered price they signed up on. However, any new accounts, even for the same owner, will pay the new price.
8. DISCLAIMER OF WARRANTIES.
THE SOFTWARE, SERVICES AND ANY CONTENT ACCESSIBLE THROUGH THE SOFTWARE OR SERVICES ARE PROVIDED "AS-IS," AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CellSmart POS Int'l LLC, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD PARTY CONTENT OR SERVICE PROVIDERS, DEALERS AND SUPPLIERS (COLLECTIVELY "SUPPLIERS") DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, REGARDING THIS SOFTWARE, SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NONINFRINGEMENT. CellSmart POS Int'l LLC DOES NOT WARRANT ANY HARDWARE OR HARDWARE INTERFACE PURCHASED OR USED IN CONJUNCTION WITH THIS SOFTWARE OR SERVICES ARE SECURE, VIRUSES, THREAT OF HACKERS, INTERRUPTION OR ERRORS, OR THAT THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS. CELLSMART POS Int'l LLC IS CONTINUOUSLY STRIVING TO UPDATE THEIR SOFTWARE TAKING INTO ACCOUNT THE CUSTOMERS FEEDBACK AND REQUIREMENTS AS WELL AS KEEPING UP WITH THE LATEST MARKET TRENDS. FURTHER, CellSmart POS Int'l LLC DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT OR DATA THROUGH THE SOFTWARE OR CONTINUED ACCESS TO ANY TRIAL VERSION OF THE SOFTWARE OR TO THE DATA ENTERED INTO THE TRIAL VERSION OF THE SOFTWARE AFTER THE TRIAL PERIOD OF TIME IS OVER. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SOFTWARE, AS APPLICABLE. THE SOFTWARE AND ANY RELATED SERVICES OR CONTENT ARE DESIGNED TO OPERATE AND PROVIDE INFORMATION WITH THE UNDERSTANDING THAT CellSmart POS Int'l LLC AND ITS SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICE. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. CellSmart POS Int'l LLC EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THIS SOFTWARE, RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. IT IS YOUR RESPONSIBILITY TO KEEP ABREAST OF CHANGES IN LAWS, REGULATIONS AND ACCOUNTING PRACTICES THAT AFFECT YOU AND YOUR BUSINESS.
9. LIMITATION OF LIABILITY AND DAMAGES.
YOU AGREE THAT IN NO EVENT WILL CellSmart POS Int'l LLC BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGE INCURRED AS A RESULT OF YOUR RECEIPT OF OR PARTICIPATION IN THIRD PARTY SERVICES. THE ENTIRE CUMULATIVE LIABILITY OF CellSmart POS Int'l LLC AND ITS SUPPLIERS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR ONE MONTH'S USE OF THE SOFTWARE AND SERVICES, UNLESS OTHERWISE SEPARATELY AGREED BY CellSmart POS Int'l LLC IN WRITING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CellSmart POS Int'l LLC AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS OR INVESTMENT, TAX POSITIONS TAKEN BY YOU, USE OF THE SOFTWARE WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET CellSmart POS Int'l LLC'S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF CellSmart POS Int'l LLC, ITS SUPPLIERS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CellSmart POS Int'l LLC AND YOU. CellSmart POS Int'l LLC WOULD NOT BE ABLE TO HAVE PROVIDED THIS SOFTWARE OR SERVICES WITHOUT SUCH LIMITATIONS.
10. CONSENT TO CONDUCT BUSINESS ELECTRONICALLY.
(a) Consent to Electronic Communications. CellSmart POS Int'l LLC may be required by law to send "Communications" (as defined below) to you that may pertain to the Software, the use of information you may submit to CellSmart POS Int'l LLC, and the Third Party Services you choose. Additionally, certain of the Third Party Services you choose may require Communications with the third parties who administer these programs. You agree that CellSmart POS Int'l LLC, on behalf of itself, and others who administer such services (as applicable), may send Communications to you by email and/or may make Communications available to you by posting them at one or more of our sponsored websites, such as www.CellSmart POS.com. You consent to receive these Communications electronically. The term "Communications" means any notice, record, agreement, or other type of information that is made available to you or received from you in connection with the Software and the Third Party Services.
(b) Consenting to Do Business Electronically. The decision whether to do business electronically is yours, and you should consider whether you have the required hardware and software capabilities described below. Your consent to do business electronically, and our agreement to do so, applies to this Agreement, the Software and any applicable Third Party Services.
(c) Communication Requirements. In order to access and retain an electronic record of Communications, you will need: a computer, a monitor, a connection to an Internet service provider, an Internet browser software that supports 128-bit encryption, and an e-mail address. We do not provide ISP services. You must have your own Internet service provider.
(d) Changes to Your Email Address. In order to provide you with the Communications, you agree to notify us promptly of any change in your email address. You can do so by emailing us at firstname.lastname@example.org (please include both your old and new email addresses).
11. TERMINATION AND END OF TERM..
(a) Termination for Cause. CellSmart POS Int'l LLC may terminate this Agreement upon written notice if:
(a) the Customer materially breaches a non-payment obligation or representation of this Agreement or the applicable Sign Up Page and fails to cure such breach within thirty (30) days following its receipt of notice of such breach;
(b) the Customer fails to function as a going concern or operate in the ordinary course;
(c) there is an assignment by the Customer for the benefit its of creditors; or
(d) there is a voluntary or involuntary bankruptcy filing by or against the Customer. CellSmart POS Int'l LLC may immediately terminate this Agreement without notice and opportunity to cure and disconnect the Software and services upon a breach of the payment terms in this Agreement. CellSmart POS Int'l LLC may terminate this Agreement without cause, and for any or no reason, upon thirty (30) days prior written notice to Customer.
(b) Termination Fees. There are no termination or cancellation fees, except the Customer shall immediately pay all remaining charges that would be due to CellSmart POS Int'l LLC through the end of the Term,
(c) Effect of Termination. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer, including Termination Fees. Upon expiration or termination of this Agreement:
(i) the rights granted to Customer under this Agreement will cease immediately upon the effective date of such termination and be of no further force or effect; and
(ii) Customer shall not have access to the Software or the data therein.
(d) End of Term. Unless otherwise provided in the Sign Up Page, the Term of this Agreement shall automatically be renewed for a period similar to that which the customer signed up initially unless Customer gives prior written notice to CellSmart POS Int'l LLC of its intent not to renew same at least thirty
(3) days prior to the end of any Term.
All software plans are backed by a 30-day money guarantee in the first 30 days after initial sign-up. After the 30-day refund window is passed, monthly and quarterly plans are not refundable. If cancellation is requested, your payment information will be removed from the file and there will be no further charges. You will be able to use CellSmart POS for the time left on your paid plan.
All hardware items are refundable or exchanged in the first 30 days after purchase for a full refund or exchange minus any shipping charges, provided that the items are returned in original condition with all original packaging and manuals. After 30 days, no refunds or exchanges will be honored. Some items sold may be refurbished and are clearely marked as such on our website as well as in the invoice
Regular ground shipping is provided at the flat rate of $10 for the 48 contiguous states. Alaska, Hawaii, Puerto Rico and all international orders will be charged actual shipping costs from our shipper of choice.
15. UNLOCK SERVICE
All unlocks, once submitted, cannot be cancelled or refunded. Unlock codes provided are as-is. We do not guarantee their validity and cannot accept any disputes. Customer is responsible for all unlocks submitted from their POS. Customer should make sure to allow only select employees / managers they trust to access this feature to prevent abuse and / or fraud.
16. TEXT-MESSAGE / PROMOTION ALERT:
Customer may choose to send promotion alert / text - message alert to their customers at the cost of 1 cent or 2 cent option per person. Customer is responsible for all messages sent. Customer should make sure to allow only select employees / managers they trust to access this feature to prevent abuse and / or fraud.
Customer shall indemnify and hold CellSmart POS Int'l LLC harmless from and against all loss, liability, damage and expense, including reasonable attorneys fees, caused by Customer's officers, employees, agents, vendors, partners or contractors arising from claims or demands: (a) for damages to property or for injury or death to persons, including without limitation any disability, death or Worker's Compensation benefits; (b) arising from data transmitted, received or stored on or over CellSmart POS Int'l LLC's network by or through Customer; (c) for infringement of a third party's proprietary rights based on any information, materials or access to property provided by Customer; or (d) relating to the use by Customer of any Services provided under this Agreement.
(a) Equitable Remedies. Customer acknowledges that any breach or threatened breach by Customer of any of the agreements or other or provisions contained in this Agreement will result in irreparable and continuing harm to CellSmart POS Int'l LLC for which the CellSmart POS Int'l LLC would not have adequate remedy at law. Therefore Customer acknowledges and agrees that in the event of any such breach or threatened breach, in addition to any other remedy which CellSmart POS Int'l LLC may have at law or in equity, the CellSmart POS Int'l LLC shall be entitled to such injunctive relief or other equitable remedies to restrain Customer from violating the provisions of this Agreement and Customer hereby consents to the granting of such injunctive relief or other equitable remedy by any court of competent jurisdiction, without CellSmart POS Int'l LLC having to prove the inadequacy of the available remedies at law or any actual damages (and without being required to post a bond or other security). Any such remedy sought or obtained shall not be considered either exclusive or a waiver of the rights of CellSmart POS Int'l LLC to assert a claim for any other remedies it may have at law or in equity.
(b) Severability and Waiver. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms and provisions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term or provision. The waiver by CellSmart POS Int'l LLC of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
(c) Governing Law. This Master Agreement shall be governed by the laws of the State of New York without reference to the principles of conflicts of law. Each party hereby irrevocably submits to the jurisdiction of the courts of the State of New York, sitting in the Bronx County, and the courts of the United States for the Southern District of New York. Each party irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court, any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum and the right to object, with respect to any such suit, action or proceeding brought in any such court, that such court does not have jurisdiction over such party. In any such suit, action or proceeding, each party waives, to the fullest extent it may effectively do so, personal service of any summons, complaint or other process and agrees that the service thereof may be made by certified or registered mail, addressed to such party at its address as set forth in the preamble hereinabove.
(d) Assignment. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by Customer, and any such attempted assignment shall be void and of no effect, without the advance written consent of CellSmart POS Int'l LLC.
(e) Force Majeure. Neither Party shall be liable for any delay or failure in performance due to war, acts of terror, riots, embargoes, strikes, accidents, fire, acts of God, supplier or vendor failure, outage or malfunction of local or long distance telecommunications services, utility outage or other occurrence beyond such Party's direct control (each, a "Force Majeure Event"). The non-performing Party shall notify the other Party of a Force Majeure Event, and if a Force Majeure Event continues for more than sixty (60) days, CellSmart POS Int'l LLC or Customer may cancel this Agreement with no further liability (except for any amounts due and not paid by Customer) as a result of such Force Majeure Event.
(f) Attorneys' Fees. In any action to enforce the terms of this Agreement, CellSmart POS Int'l LLC will be entitled to reasonable attorneys' fees and other costs and expenses incurred by it in connection with such action.
(g) Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon
(i) the date sent by confirmed facsimile,
(ii) on the date it was delivered by courier, (iii) by email if to CellSmart POS Int'l LLC at email@example.com, if to Customer at the email address provided on the Sales Oder Form, or (iv) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatories of this Agreement and the relevant Sign Up Page, or to such other address or individual as the parties may specify from time to time by written notice to the other Party. For printed version of this Agreement, please sign below: