End User License Agreement
Last Updated: March 10, 2021
Welcome to Cheers Point of Sale
This End User License Agreement (“Agreement”) is a binding agreement between you (“Merchant”) and Morning Stars, LLC (“Cheerspos”). This Agreement governs your use of the Cheerspos Web Application (“Application”). The Application is licensed, not sold to you.
BY USING THE APPLICATION YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION.
“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” 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
Changes to Our Terms of Service
Cheerspos reserves the right to make changes to these Terms and it is your responsibility to become acquainted with the changes when you are notified via email, in writing or any other form of communication. Please revisit these Terms on a regular basis to stay informed of updates. Changes will become effective on the day they are posted. You agree that your continued use of the Application indicates your acceptance.
Cheerspos gives the Merchant a license which is limited, non-exclusive and nontransferable. The license allows the Merchant to use the Application on multiple devices associated with a single Merchant account that is owned or otherwise controlled by the Merchant strictly in accordance with the Application’s documentation.
(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 Cheerspos Application. The first monthly fee will start to accrue as of the first day immediately following any trial period (if applicable). 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. Cheerspos 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.
The Application may be modified, updated, interrupted, suspended or discontinued at any time without notice. Cheerspos shall not be held responsible for the Application not being available.
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.
Merchant shall not:
(a) Disassemble, decompile, reverse engineer, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(b) Translate, modify, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(c) Alter, delete, remove, or obscure any trademarks or any copyright, patent or other intellectual property or proprietary rights notices from the Application;
(e) Assign, sell, lend, rent, lease, sublicense, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason.
The Application is provided to the Merchant under license on a subscription basis, and not sold to you. You do not acquire any ownership interest in the Application nor any other rights other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Cheerspos reserves and shall retain its entire right, title and interest in the Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
Collection and Use of Your Information
Merchant Ordering Terms
Merchant is solely responsible for the accuracy of those items requested from their vendor, supplier or distributor when using the Application. Cheerspos accepts no responsibility for errors made by the Merchant when placing an order, inventory management, invoicing, data migration or other.
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 Agreement commences when you access, use, click on “Accept and Install” the Application of these Terms will continue in effect until terminated by the Merchant or Cheerspos.
(b) Cheerspos may terminate this Agreement at any time with reasonable advance notice if Cheerspos ceases to support the Application, which Cheerspos may do at its sole discretion. Other reasons for application removal include: (i) an allegation or actual infringement of any intellectual property right or right of publicity or privacy of any third party; (ii) an allegation of actual defamation; (iii) an allegation or determination that an application does not comply with applicable law; (iv) Cheerspos ceases to do business; or (v) Cheerspos files a petition for bankruptcy, dissolving, or otherwise finding itself unable to pay its debts as they become due.
(c) This Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(e) Upon termination: (i) all rights granted to you under this Agreement will be terminated; and (ii) you must cease all use of the Application.
(f) Termination will not limit any of Cheerspos rights or remedies at law or in equity.
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.
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.
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.
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 venue in such courts.
Failure by Cheerspos 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 Cheerspos 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 firstname.lastname@example.org.