End User License Agreement
Last Updated: June 1, 2023
Welcome to Cheers Point of Sale
Introduction
This End User License Agreement (“Agreement”) is a binding agreement between you (“Merchant”) and Morning Stars, LLC (“Cheerspos, Cheers POS, Cheers Point of Sale”). This Agreement governs your use of the Cheers POS Web Application (“Application”). The Application is licensed, not sold to you.
Agreement
By utilizing the application, you hereby (A) acknowledge that you have carefully reviewed and comprehended this agreement, (B) affirm that you are of legal age to enter into a legally binding agreement, and (C) accept this agreement in its entirety, thereby consenting to be legally bound by its terms. If you do not agree with these terms, refrain from using the application.
Please note that the use of this application entails certain risks. While every effort has been made to develop a reliable and secure software solution, it is important to understand that no software is entirely free from flaws or vulnerabilities. Therefore, the creator of this application cannot assume responsibility for any losses, damages, or adverse consequences that may arise from your use of the application, including but not limited to data breaches, errors, or disruptions, financial losses, or financial damage in functionality. The user acknowledges and agrees that they bear the sole responsibility for any outcomes or damages that may occur as a result of using the application. It is strongly recommended to exercise caution and implement appropriate safeguards when utilizing the application to mitigate potential risks.
Definitions
Parties
“Merchant” refers to you, as a user of the Application. You an end user (“user”, “you” or “subscriber”) is someone who accesses, browses, crawls, scrapes, posts to, or in any way uses the Application.
Content
“Content” means any text, images, photos, audio, video, location data, or other data. “Your Content” means content that you submit or transmit in connection with the Application, such as information about yourself, reviews, messages, comments, photos, or any other information. “Cheerspos Content” means content that we create and make available in connection with the Application. “Application Content” means all of the content that is made available in connection with the Application, including Your Content and Cheerspos Content.
Your Content and Responsibility
You are solely responsible for Your Content, and once published, it may not be retracted. You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable. You represent that you own, or have the necessary permissions to use and authorize the use of Your Content. You may not imply that Your Content is in any way sponsored or endorsed by anyone but you. You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other rights; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
Our Right to Use Your Content
Cheers POS may utilize Your Content in various ways, including but not limited to publicly displaying, reformatting, incorporating into advertisements and other works, creating derivative works, promoting, and distributing it. By using the software application, you implicitly grant Cheers POS a worldwide, perpetual, royalty-free, assignable, licensable, and transferable right to use Your Content for any purpose, in accordance with our Privacy Policy. Furthermore, please be aware that you also grant the users of the Application the right to access Your Content in connection with their use of the Application. The term “use” encompasses actions such as copying, publicly performing, displaying, reproducing, distributing, modifying, translating, removing, analyzing, commercializing, or preparing derivative works based on Your Content. Lastly, you irrevocably waive any claims against Cheers POS related to the use of Your Content.
Changes to Our Terms of Service
Cheers POS reserves the right to modify these Terms at any time, and it is your responsibility to familiarize yourself with the changes upon receiving notification through email, written communication, or any other form of communication. We recommend regularly reviewing these Terms to stay informed about updates. Any changes made will become effective on the day they are posted. By continuing to use the Application, you signify your acceptance of the modified Terms.
License Limitation
Cheers POS grants the Merchant a restricted license, which is non-exclusive, non-transferable, and subject to specific limitations. This license is intended solely for the Merchant’s authorized use of the Application within their business setting. The Merchant acknowledges and agrees that the license does not extend to allowing unauthorized users or individuals outside of the business setting to access, use, or replicate the Application.
Furthermore, the Merchant acknowledges that any unauthorized attempt to reverse engineer, copy, reproduce, or recreate aspects of the Application is strictly prohibited. Cheerspos reserves the right to take appropriate legal action, including termination of the license agreement and pursuing legal remedies if it is determined that the Merchant is engaged in such unauthorized activities.
It is crucial for the Merchant to adhere strictly to the guidelines and instructions outlined in the Application’s documentation while utilizing the software solution. Failure to comply with these guidelines or engaging in unauthorized activities may result in termination of the license and potential legal consequences.
Subscription Services
(a) Monthly Subscription: You agree to subscribe to the Application on a monthly basis; you must pay a monthly fee in advance in order to use the Application. All fees charged will be processed through the Cheers POS Application. The first monthly fee will start to accrue as of the first day after going live. The fees do not include any taxes or duties of any kind, which may be imposed by any governmental entity on the transactions contemplated by this Agreement, and you will be solely responsible for all such taxes. All amounts are quoted in and payable in US dollars. Cheers POS reserves the right to suspend your use of the Application if you fail to pay any undisputed amount owed on or before its due date. You may cancel your subscription at any time by providing a written notice to Cheerspos; upon cancellation, you (i) will not receive a refund for the billing period during which you cancel your subscription; and (ii) will be able to access the Application and receive updates until the subscription termination date. (b) Refunds: All refunds will be at the sole discretion of Cheerspos. Merchants may request a refund of the fees by the end of the 28th day of the calendar month, following the month in which you paid the Application Fees.
Application Availability
The Application may undergo modifications, updates, interruptions, suspensions, or discontinuations at any time without prior notice. Cheers POS assumes no responsibility for any unavailability of the Application. Consequently, Cheers POS shall not be held liable for any issues or losses, including financial losses, arising from such changes.
Age Eligibility
By agreeing to these Terms, you are representing to us that you are 21 years of age or over. If you are under 21 years of age, you are not allowed to use this Application.
License Restrictions:
Merchant is strictly prohibited from engaging in the following actions:
(a) Disassembling, decompiling, reverse engineering, decoding, or making any attempt to derive or gain access to the source code of the Application or any of its components;
(b) Translating, modifying, adapting, or creating derivative works or improvements, whether or not patentable, based on the Application;
(c) Altering, deleting, removing, or obscuring any trademarks, copyright notices, patent indications, or other intellectual property or proprietary rights notices from the Application;
(e) Assigning, selling, lending, renting, leasing, sublicensing, distributing, publishing, transferring, or otherwise making the Application, its features, or functionality available to any third party for any reason.
It is essential for the Merchant to strictly adhere to these license restrictions. The Merchant acknowledges that any unauthorized use or actions that violate these restrictions may result in the immediate termination of the license agreement by Cheers POS. Additionally, if the Merchant is found guilty of reverse engineering or copying any aspects of the Application, Cheers POS reserves the right to pursue legal action against the Merchant.
Please note that these restrictions are in place to protect the intellectual property and proprietary rights associated with the Application. The Merchant is responsible for ensuring that only authorized individuals within the business setting use the Application, preventing unauthorized access, and safeguarding against any attempts to copy or recreate the Application or its functionalities
Credit Card Processing & Integrated Processing Partners – Disclaimer
Please be advised that by utilizing the Cheers POS platform, you expressly acknowledge and agree that our organization has endeavored to create an optimal solution, with our diligent engineering team making continuous efforts. However, it is essential to recognize the inherent limitations of human endeavors, as certain imperfections may persist. Therefore, by utilizing the system, you accept it in its current state, understanding that it possesses limitations in its automated functionalities, necessitating your active management, maintenance, and upkeep of your store inventory and data. As a business owner, the responsibility for running your liquor store lies solely with you, with Cheers POS serving as one component within the larger equation of achieving business success.
Furthermore, you are aware that the adjustment, reduction, or alignment of processing rates to meet your expectations may require a considerable timeframe of up to three months or possibly longer.
Please be aware that any rates, charges, fees, or billing imposed upon you by the processor are entirely outside the purview and control of our company, Morning Stars LLC, doing business as Cheers POS. We explicitly disclaim any responsibility or liability for such rates, charges, fees, or billing. Furthermore, we cannot be held accountable for any losses or damages that you may experience during transaction processing or while collaborating with an integrated partner of our point-of-sale solution.
You acknowledge that Cheers POS and its affiliated members or representatives possess limited authority in executing actions on your behalf, such as, but not limited to, reviewing statements, processing refunds, issuing credits, requesting rate reductions, or implementing additional fees.
I understand that Morning Stars LLC, doing business as Cheers POS, bears no liability for any financial discrepancies, disparities, or variations between your existing rates and the rates and fees introduced by a new processor, along with any associated data-related matters. Please be informed that Morning Stars LLC, DBA Cheers POS, lacks the capability to pursue or compel the processor to refund any funds on your behalf. While our representatives can submit requests, it is ultimately the processor who retains full discretion over their fees, rates, refunds, and any other charges imposed upon you.
Furthermore, I comprehend that the company cannot be held responsible for any financial adjustments or expenses resulting from the actions of the processor, nor can any member or representative of Morning Stars LLC, DBA Cheers POS, be held accountable for any processor-related charges, discrepancies, financial alterations, or impacts upon your business. Additionally, Cheers POS and its partners lack the authority to retroactively modify rates, address unexplained charges, and undisclosed fees, or provide refunds for rate differences between your previous processor and the newly established one.
Company Rights
The Application is licensed to the Merchant on a subscription basis and is not sold. You do not gain any ownership rights or other rights, except for the right to use the Application in accordance with the granted license and the terms, conditions, and restrictions of this Agreement. Cheers POS retains full right, title, and interest in the Application, including all copyrights, trademarks, and other intellectual property rights associated with it, except as explicitly granted to you in this Agreement. You are strictly prohibited from copying, reproducing, or sharing any aspect, idea, or content of the Application without express authorization. In the event that Cheers POS discovers any unauthorized copying, reproduction, or sharing of the Application or its contents, it reserves the right to pursue legal action against the responsible party.
Collection and Use of Your Information
When you use our Application, Cheers POS may employ automatic means, such as cookies and web beacons, to gather information about your browser, computer, and your usage of the Application. Additionally, you may be obligated to provide us with specific information about yourself as a prerequisite for installing or utilizing the Application. Our Privacy Policy governs all data collected through or in association with the Application. By using the Application and furnishing information to us, you give your consent to all actions taken by Cheers POS concerning your information, in accordance with the Privacy Policy.
Merchant Ordering Terms
The Merchant bears sole responsibility for the accuracy of the items requested from their vendor, supplier, or distributor when utilizing the Cheers POS Application. Cheers POS assumes no liability for any errors committed by the Merchant during the order placement process, inventory management, invoicing, data migration, or any related activities.
Updates
Cheerspos may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionalities. You agree that Cheerspos has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
Third-Party Services
The Application may display, include or make available third-party content (including data, information, applications and other product services or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Services“). You acknowledge and agree that Cheerspos is not responsible for Third Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Third Party Services and links thereto are provided solely as a convenience to you. Use them entirely at your own risk and you are subject to such third parties’ terms and conditions.
Termination and Terms
(a) The term of this Agreement shall commence upon your access, use, or acceptance of the Application by clicking “Accept and Install,” and it shall remain in effect until terminated by either the Merchant or Cheers POS.
(b) Cheers POS reserves the right to terminate this Agreement with reasonable advance notice if Cheers POS, at its sole discretion, decides to discontinue support for the Application. Other grounds for termination include, but are not limited to: (i) allegations or actual infringement of any intellectual property rights, rights of publicity, or privacy of any third party; (ii) allegations of actual defamation; (iii) allegations or determinations that the Application fails to comply with applicable laws; (iv) cessation of business operations by Cheers POS; or (v) Cheers POS initiating bankruptcy proceedings, dissolution, or being unable to meet its financial obligations as they come due.
(c) This Agreement shall be terminated immediately and automatically, without notice, in the event of your violation of any terms and conditions set forth herein.
(e) Upon termination: (i) all rights granted to you under this Agreement shall be terminated; and (ii) you must immediately cease all use of the Application.
(f) Termination shall not limit any rights or remedies available to Cheers POS under applicable law or in equity.
Severability
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original Agreement.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE APPLICATION IS PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW. CHEERSPOS ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, CHEERSPOS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CHEERPOS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR CHEERSPOS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Indemnification
You agree to defend, indemnify, and hold Cheerspos, its affiliates, and agents and any other service provider who furnishes services to you or enables us to furnish services to you in connection with this Agreement, harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement. Furthermore, you agree that Cheerpos assumes no responsibility for the content you submit or make available through this Application. Cheerspos and its affiliates do not have any responsibility or liability to a subscriber of the application in any way with respect to the subscriber’s use of application.
Export Regulation
The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
Governing Law
This Agreement, and all other aspects of the use of the Application, shall be governed by and construed in accordance with the laws of the State of Kansas, without regard to its choice of law rules. This governing law provision applies no matter where you reside, or where you use or pay for the Service. You agree to submit to the exclusive jurisdiction of the State of Kansas courts located in or with responsibility for Pottawatomie County Kansas to resolve any disputes arising hereunder. You waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue in such courts.
Entire Agreement
This Agreement and our Privacy Policy constitute the entire agreement between Merchant and Cheers POS with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
Non-Waiver
Failure by Cheers POS to insist upon strict performance of any terms or conditions of this Agreement or failure or delay to exercise any rights or remedies provided herein or by law shall not release the Merchant from any of the warranties of obligations of this Agreement, and shall not be deemed a waiver of any right of Cheers POS to insist upon strict performance hereof or any of its rights and remedies.
Reach Out: If you have any questions about this End User Agreement, please contact Cheerspos at support@cheerspos.com.