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Extreme Point of Sale, Inc. License Agreement

PLEASE READ THIS DOCUMENT CAREFULLY, BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ARE AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE WITH THE TERMS OF THE AGREEMENT, DO NOT INSTALL THE SOFTWARE.

This License Agreement is a legal agreement between you (either an individual or a single entity) and Extreme Point of Sale, Inc. and its authorized Resellers (hereinafter referred to as EPOS). EPOS agrees to grant a non-exclusive license to use the THUNDERPOS software, hereinafter called the “SOFTWARE”. This license and agreement is made between you, either jointly or singly, hereinafter called “LICENSEE,” and EPOS, hereinafter called “Licensor”.

GENERAL CONSIDERATIONS
The Licensee represents that it is familiar with, and has a working knowledge of the subject matter that the software was designed for.  Licensee agrees that the purpose of the system purchased is to provide a tool for its use, not to be a tool to teach the Licensee the subject matter. EPOS is not responsible for any inaccuracies or errors caused by the software as a result of omissions or mistakes made in the operation of the System by Licensee. EPOS assumes no responsibility for software problems and non-performance of advertised features arising from, but not limited to, misuse, unsafe and dirty operating environment, hardware malfunctions, electrical surges, brown and black outs, circuit overloading, and operation by unauthorized, unknowledgeable and/or improperly trained employees.  EPOS will assist Licensee in resolving the consequences of any such occurrence or action; however, such service is not covered under the support agreement.  Licensee acknowledges that he/she/it has been given a copy of, and has read and fully understood the terms and conditions of the Support and Update Service agreement.

EPOS is a reseller of hardware, and if hardware is being ordered, makes no warranties regarding it; however, EPOS will assign to the Licensee the warranties, if any, it receives from hardware vendors, unless otherwise specified in writing. Licensee agrees that once software and hardware specified on this order has been shipped, there will be no refunds. Defective components will be repaired and/or replaced free of charge during the warranty period for the specific component in question.

The Licensee agrees that the SOFTWARE is for its own internal use and that no unauthorized copies may be made, sold, and/or distributed to individuals and/or corporations not a party to this agreement. The Licensee is authorized to make backup copies for archival purposes only.

EPOS- SOFTWARE LICENSE AGREEMENT
EPOS provides this program and licenses its use in the United States, unless otherwise stated in writing.  You assume responsibility for the selection of the program to achieve your intended results, for the installation, and for the use and results obtained from the program. LICENSE: (a) you may make use of the program on a single system, (b) you may not use, copy, modify or transfer the program, or any copy, modification or merged portion, in whole or in part, except you may make one copy for archival purposes, (c) if you transfer possession of any copy, modification or merged portion of the program to another party, your license is automatically terminated.  TERM: The license is effective until terminated.  You may terminate it at any time by destroying the program together with all your copies, modifications and merged portions in any form.  It will also terminate upon conditions set forth elsewhere in this Agreement or if you fail to comply with any term or condition of this Agreement. You agree upon such termination to destroy the program together with all copies, modifications and merged portions in any form. LIMITED WARRANTY: EPOS warrants the media on which the program is furnished, to be free from defects in materials and workmanship under normal use for a period of sixty (60) days from the date of delivery to you as evidenced by a copy of your receipt.

THE SYSTEM, HARDWARE AND SOFTWARE, IS PROVIDED ON AN AS IS BASIS AND ESC DISCLAIMS ANY IMPLIED WARRANTIES WITH RESPECT TO SUCH GOODS. EPOS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED ON THIS PROGRAM WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE.  SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE.  THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.

LIMITATIONS OF REMEDIES: EPOS’S entire liability and your exclusive remedy shall be: (1) The replacement of any media not meeting EPOS’s “Limited Warranty” and which is returned to ESC or an authorized dealer with a copy of your receipt, or (2) If EPOS or the dealer is unable to deliver a download which is free of defects in materials or workmanship, you may terminate this Agreement by returning the program and your money will be refunded. (3) DAMAGES:  EPOS SHALL HAVE NO LIABILITY TO LICENSEE RESPECTING THE SYSTEM IN CONTRACT, NEGLIGENCE (INCLUDING EPOS’S SOLE NEGLIGENCE), STRICT TORT OR OTHERWISE. IN NO EVENT IS EPOS LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE OR LOSS OF ANY NATURE (SUCH AS DAMAGE TO PROPERTY, DAMAGES RESULTING FROM DELAY, CLAIMS OF THIRD PARTIES, LOSS OF PROFITS OR INJURY TO PERSON) WHICH MAY ARISE IN CONNECTION WITH THE PROGRAM, REGARDLESS OF WHETHER CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT, NEGLIGENCE (INCLUDING EPOS’S SOLE NEGLIGENCE), STRICT TORT OR OTHERWISE.  SOME STATES DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OF EXCLUSION MAY NOT APPLY TO YOU.
GENERAL: You may not sublicense, assign, sell or transfer the license or the program.  Any attempt otherwise to sublicense, duties or assign sell or transfer any of the rights, obligations hereunder is void.  Any right not expressly granted to you by this license is reserved to EPOS.
GOVERNING LAW:  This License Agreement shall be construed in accordance with and governed by the laws of the State of North Carolina and with a venue of Raleigh, North Carolina, except to the extent that federal law may apply.
Attorneys’ Fees:  If any action at law or in equity is necessary to enforce or interpret the terms of the License Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and reimbursement of all necessary disbursements in addition to any other relief to which the prevailing party may be entitled.  Complete Agreement:  This Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes any proposal or prior agreement, oral or written and any other communications between the parties relating to the subject matter of this License Agreement.

The terms and conditions of this agreement will become effective upon the use and installation of the SOFTWARE.

EPOS CUSTOMER SUPPORT AND UPDATE SERVICE - RULES
The following topics provide the licensee with information as to the responsibilities of both Licensee and Licensor on the provisions of the EPOS customer support and update service.

1.  All customer support calls will be answered in the order they are received, and on the same day of inquiry whenever possible.  Unsupported customers, that is, those customers who no longer subscribe to the service, who place calls for assistance using our pay-per-call service, receive lower priority that those customers who subscribe to the service.

2.  Standard telephone support service will be available Monday-Friday 9:00am to 5:00pm eastern time, excluding holidays.

3.  The customer support service will provide EPOS customers with telephone assistance on questions relating to EPOS software only.  The customer support personnel will address only questions dealing with the operations of EPOS software products. Software not manufactured by EPOS is supported by its manufacturer. Hardware problems arising from EPOS supplied equipment will be addressed.  Questions regarding the operation and or problems with, non-EPOS supplied hardware will not be addressed.  Client usage of the customer support telephone service is electronically monitored. Excessive usage of customer support may result in additional support charges. If such a condition arises the customer will be notified in writing as to this situation prior to any additional charges being incurred.
4.  Customer agrees that the support program is for assistance with EPOS software problems. It is not designed as a substitute for formal training. Formal training is available to you at an additional cost. Licensee also agrees that should employees leave your employment, it is not the responsibility of EPOS support technicians to train replacements over the phone. You may purchase training for these replacement employees.
5.  Support plans are offered for quarterly and annual terms.  For those not on a support plan, support will be offered on a per-call basis, with a charge per incident.  This fee may be changed by EPOS at any time.
6.  When using sensitive electronic equipment such as computers, licensee needs to be aware of the consequences of operating other electronic devices and appliances within the same electrical circuit, for example. But not limited to, microwave ovens, refrigerators, copiers, shrink-wrap machines etc.  These electrical devices and appliances may cause loss of data and in some cases, physical failure of your computer system. Licensor assumes no responsibility for any such loss arising from any such problem. Licensor therefore recommends having a dedicated circuit for your computer system to ensure that no such occurrences happen.  Additionally using a battery backup with surge protection will help guard your equipment and data against damaging power surges, black and brown outs. Network users should always have a battery backup unit for their file server. 
7.  As long as Licensee is a supported customer, software changes and updates may be downloaded free of charge from the EPOS website. It is the Licensees sole responsibility to keep their software current. The purpose of this service is to ensure that each Licensee receives, on a timely basis, all updates to the software licensed. EPOS support department personnel are instructed to assume that each licensee has downloaded the latest software updates. If the Licensee fails to perform software updates, no support will be provided until the updates have been performed. This will ensure that both the ESC and Licensee will be looking at the same information / screens. 
8.  Licensor assumes no responsibility for the availability of adequate internet service suitable for sustained downloading of system updates and database updates.  The quality of the licensee’s internet service may affect the ability to communicate electronically and/or may affect the communication speed.  In cases where electronic communication will not function correctly, Licensor will provide the requested data on a CD or flash drive for one hundred dollars.

9.  The ESC Support Department is skilled in the use of ESC software only. If you have software manufactured by another vendor, such as Windows, Office, etc. then licensee should contact that manufacturer for assistance.  If you are purchasing a complete system from ESC, which is both hardware and software, then your system is configured for correct operation. Should licensee install additional non-ESC manufactured product on the computer, this may be detrimental to the operation of your ESC software.  Be aware that software installation programs often alter important system files automatically.  Licensee assumes all responsibility for making sure that the new software will change your configuration and/or knowing how to accommodate all installed software.