Updated: July 1, 2019
THIS DARKPOS SOFTWARE END USER LICENSE SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS BETWEEN DARK POS, INC., WITH ITS PRINCIPAL PLACE OF BUSINESS LOCATED AT 180 PROSPECT PL, ALPHARETTA, GA 30005, (“DARK POS”) AND THE INDIVIDUAL OR LEGAL ENTITY WHO HAS EXECUTED AN ORDER FORM (OR OTHER ORDERING OR PURCHASING DOCUMENT) AND/OR IS USING SOFTWARE MADE AVAILABLE BY DARKPOS (“CUSTOMER”) AND GOVERNS ALL USE BY CUSTOMER OF THE DARKPOS SOFTWARE REFERENCED IN SUCH ORDER FORM.
BY DOWNLOADING, INSTALLING, COPYING ACCESSING OR USING THE SOFTWARE, CUSTOMER AGREES TO ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND CUSTOMER AGREES THAT THIS AGREEMENT IS ENFORCEABLE AS IF IT HAD BEEN SIGNED BY CUSTOMER. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, UNINSTALL AND DO NOT USE OR ACCESS THIS SOFTWARE.
Subject to the terms and conditions of this End User License Agreement and subject to the payment of the applicable license fees (“Subscription Fee”), DarkPOS, grants the Customer a limited, non-exclusive and non-transferable license, for your internal business purposes only, for the accompanying software and documentation provided by Dark POS (collectively, the “Software”) during the set subscription period (the “Subscription Period”) for the number of locations for which the corresponding fee has been paid (the “Permitted Number”). This Agreement will also govern any upgrades to the Software provided by Dark POS that replace and/or supplemente the original Software, unless such upgrades are accompanied by a separate license, in which case the terms of that license will govern.
2. SUBSCRIPTION PERIOD
The Subscription Period for the Software will begin on the day the Customer orders the Software for the period specified in the “Order Form”. Your subscription to the software will automatically renew for a new Subscription Period upon payment of the new subscription fee. Dark POS reserves the right to change the Subscription Fee for any renewal Subscription Periods. Each new Subscription Period will be subject to the same terms and conditions set forth in this Agreement, which may be updated by Dark POS. The updated terms of this Agreement can be found on the Dark POS website.
3. ORDER FORM
The ordering document referencing this Agreement between the Customer and Dark POS.
4. END OF SUBSCRIPTION PERIOD
Customer agrees that Dark POS may disable the Software, either by operation of the software or by remote command from Dark POS at the end of the Subscription Period if Customer has not paid the Subscription Fee to renew Customer’s subscription to the Software.
5. MAINTENANCE & SUPPORT
Maintenance and support are included with your Subscription Fee. Dark POS will make reasonable efforts to notify Customer when updates are made to the Software. It is Customer’s responsibility to download the updates.
Support will be provided for the Software specified on the Order Form. Dark POS will not support and is not responsible for the performance of software or hardware, not specified in the Order Form.
Customer may submit to Dark POS bug reports, comments, feedback or ideas about the Software, including without limitation about how to improve the Software. By submitting Feedback, Customer hereby assigns to Dark POS all right, title, and interest in and to the Feedback, if any.
The Software is the intellectual property of and are owned by Dark POS. Customer agrees and acknowledges that the structure, organization and code of the Software are the valuable trade secretes and confidential information of Dark POS. The Software is protected by copyright, including, without limitation by the United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used.
Customer agrees to not modify, adapt or translate the Software without the written permission of Dark POS. Customer also agrees to not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. If it is necessary to decompile in order to achieve operability of the Software with another software program, you must request that Dark POS provide the information necessary to achieve such operability. Dark POS has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by Dark POS or obtained by the Customer, as permitted hereunder may only be used by the Customer and for the purpose described herein and may not be disclosed to any third party or used to create any software that is similar to the Software.
The license granted to the Software may not be shared, sublicensed or used on behalf of third parties. Trade names and or trademarks (hereinafter, “Trademarks”) shall be used in accordance with accepted trademark practice, including identification of the trademark owners’ names. Trademarks can only be used to identify printed output produced by the Software and such use of any trademark does not give you any rights of ownership in that Trademark. Except as expressly stated therein, this Agreement does not grant you any intellectual property rights in the Software.
8. LIMITED WARRANTY
Dark POS warrants to you that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following receipt of the Software when used on the recommended hardware configuration. Your exclusive remedy and Dark POS’s entire liability under this limited warranty shall be limited, at Dark POS’s option, to either the repair or replacement of the Software or the refund of the Subscription Fee for the then current Subscription Period.
EXCEPT AS PROVIED IN SECTION 8 ABOVE, THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. TO THE EXTENT PERMISSIBLE BY LOCAL LAW, DARK POS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE AND SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMETNS REGARDING CAPACITY, SUITABILITY, FOR USE, OR PERFORMANCE OF THE SOFTWARE OR SERVICES SHALL BE DEEMED A WARRANTY OF ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF DARK POS. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.
10. LIMITATION OF LIABILITY
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT DARK POS, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES INCURRED BY CUSTOMER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. THE FOREGOING LIMITATIONS ON DARK POS’S LIABILITY SHALL APPLY WHETHER OR NOT DARK POS HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
THE TOTAL LIABILITY OF DARK POS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE RELEVANT SOFTWARE UNDER THE APPLICABLE ORDER FORM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
11. EXPORT RULES
All Software and technical data delivered under this Agreement are subject to United States export control laws and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such laws and regulations.
This Agreement is effective until terminated. Customer may terminate this Agreement at any time. This Agreement will terminate immediately without notice from Dark POS if you fail to comply with any provision of this Agreement. Upon termination, Customer must cease use of the Software. In the event of termination for cause by Dark POS, Customer will not be entitled to the return of any portion of the Subscription Fee.
13. GOVERNING LAW
This Agreement and the obligations of the parties hereunder will be interpreted, construed and enforced in accordance with the laws of the United States of America, the State of Georgia, without regard to its choice of law rules. Any legal action to enforce or interpret any provision of this Agreement shall be brought in the state or federal courts located in Fulton County, Georgia, USA. By execution of the Order Form or by using the Software, the parties accept and consent to, the jurisdiction of and venues in the federal and state courts located in Fulton County, Georgia, and hereby waive any and all objections to such jurisdiction and venue.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
This Agreement, together with all Exhibits and Schedules, constitutes the entire agreement among the Parties pertaining to its subject matter. This Agreement supersedes any prior oral or written promise or representation, oral or written agreement, or understanding among the Parties with respect to the subject matter of this Agreement, but shall not amend, modify, supersede or in any way affect any other agreement or understanding among the Parties or their Affiliates that do not relate to the subject matter of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.