Terms and Conditions for Focus POS Software

THESE TERMS AND CONDITIONS (“TERMS”) GOVERN A CUSTOMER AND ITS AUTHORIZED USERS (“YOU” OR “YOUR”) USE OF THE FOCUS POS SYSTEMS SOFTWARE (FURTHER DESCRIBED BELOW). YOUR USE OF THE SOFTWARE CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS.

FROM TIME TO TIME, SECRET POS SYSTEMS, INC. D/B/A FOCUS POS SYSTEMS (“FOCUS POS” OR “WE”) MAY UPDATE OR MODIFY THESE TERMS AT ITS DISCRETION, AND WILL POST THE UPDATED TERMS OR OTHERWISE PROVIDE NOTICE TO YOU THROUGH EMAIL AND/OR AN ON-SCREEN NOTIFICATION THROUGH THE SOFTWARE. THE UPDATED TERMS AND CONDITIONS WILL BECOME EFFECTIVE AS OF THE EFFECTIVE DATE INDICATED IN THE TERMS AND CONDITIONS. YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT YOU DO NOT ACCEPT THE UPDATED TERMS IS TO CEASE YOUR ACCESS TO AND USE OF THE SOFTWARE.

1. Access to Software. Focus POS grants you a limited, non-exclusive, revocable, non-transferable right, without the right to sublicense, to electronically access and use the Software solely in connection with restaurant points of sale and management solutions for internal business purposes only. The Software includes the website portal, any software (in object code format only), programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you (“Software”). You will be entitled to download updates to the Software, subject to any additional terms made known to you at that time, when Focus POS makes these updates available.

2. Restrictions. You shall not:

(a) copy, modify, or create derivative works of the Software or code contained therein, in whole or in part;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service in breach of this Agreement;

(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part, or make any modifications or enhancements without Focus POS’ prior express written consent and authorization;

(d) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, the Software, or any related documentation, warranties, disclaimers, or intellectual any proprietary notices from the Software without Focus POS’ prior express written consent and authorization;

(e) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;

(f) use the Software in connection with the design, construction, maintenance, operation, or use of competitive systems or applications for internal use;

(g) input, upload, transmit or otherwise provide any information or materials that are unlawful or otherwise injurious, or contain, transmit, or activate any virus, worm, malware or other malicious computer code or content; or

(h) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm the integrity or performance of the Software in any manner, in whole or in part.

3. User Obligations. You agree to abide by these Terms and any policies made available to you through the Software. You agree to keep, and are responsible for, your account information, such as your account username and password, confidential. You are responsible for the activity that happens on or through your account. Any account you create is personal to you and you agree not to provide any other person with access to it. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, ownership, and/or right to use all of data, information, or materials transmitted through the Software.

4. Intellectual Property Rights. Focus POS retains all intellectual property rights and protections in the Software, and you shall have no ownership rights in or to the Software or any related trademarks.

5. Compliance with Laws. Applicable state and federal laws, as well as third party providers, may impose obligations with respect to collection, use, confidentiality of personal information transmitted through the Software. Focus POS may collect data to create analytics, statistics, and other data related to the use of the Software and the data derived therefrom in an aggregated, anonymous, de-identified form (“Derivative Data”). Such Derivative Data will be used for business purposes, including but not limited to (i) provision the Software, (ii) statistical use to monitor, analyze, maintain, and improve the Software, and (iii) Focus POS’ internal business purposes. Focus POS shall own all right, title, and interest in the Derivative Data. If such ownership right is unenforceable, then Authorized User hereby grants Focus POS a worldwide, nonexclusive, transferable, royalty-free, perpetual, irrevocable license, with right to sublicense, to use, reproduce, electronically distribute, store, process, and display Derivative Data. For purposes of clarity, Focus POS shall take no action and shall not allow any third party to take any action that does or would reasonably result in the identification of any natural person underlying the Derivative Data. Focus POS does not share or sell personal information with or to any third parties, except for the purposes of processing transactions where it may be necessary to share such information with third parties, including but not limited to, credit card processing transactions. You represent and warrant that to the extent required by applicable law, you will, at all times, comply with all laws directly or indirectly applicable to you that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, and maintenance of any data applicable to such laws, including but not limited to making all necessary disclosures and obtaining necessary consents to enable Focus POS to collect, process, and transmit data as contemplated under these Terms.

6. Termination/Suspension. Your rights to use the Software shall automatically terminate if you breach any of these Terms. We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Software, or in connection with any termination or suspension of the Software.

7. Suspension or Termination by Us. We may terminate this Agreement and close your account for any reason or no reason at any time upon notice to you. We may also suspend the Software and access to your Software account if you (a) have violated these Terms or Focus POS policies, (b) pose an unacceptable credit or fraud risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.

8. WARRANTY AND DISCLAIMER. Focus POS shall use reasonable efforts consistent with prevailing industry standards to maintain the Software in a manner which minimizes errors and interruptions to the Software. The Software may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Focus POS or by third-party providers, or because of other causes beyond Focus POS’s reasonable control, but Focus POS shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY AND REMEDIES EXPRESSLY SET FORTH IN THESE TERMS ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, AND FOCUS POS SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES AND REMEDIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE OR ANY WARRANTIES RELATING TO SECURITY. THE SOFTWARE IS PROVIDED “AS IS” AND THERE IS NO WARRANTY OR REPRESENTATION THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT THE SOFTWARE WILL BE FREE FROM INFRINGEMENT OR VIOLATION OF ANY PATENT, COPYRIGHT, TRADE SECRET, OR ANY OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.

9. Governing Law; Arbitration. The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Texas, without reference to its choice of law rules. All claims, disputes, or other matters in question arising out of, or relating in any way to, this Agreement or the breach thereof, or relating to the relationship involved with, created by or concerning this Agreement, shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (9 U.S.C. § § 10 and 11, as amended) (FAA) by a single arbitrator in Boerne, Texas in accordance with the laws of the State of Texas and the Texas Arbitration Act, unless the parties agree to an alternative dispute resolution or procedure. The arbitrator shall issue an award in writing and state the essential findings and conclusions on which the award is based. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. No arbitration arising out of, or relating to, this Agreement shall include by consolidation, joinder or in any other manner any other person or entity who is not a party to this contract unless the inclusion of such other person or entity is necessary if complete relief is to be afforded among those who are already parties to the arbitration, and/or such other person or entity is substantially involved in a question of law or fact which is common to those who are already parties to the arbitration and which will arise in such proceedings. The award rendered by the arbitrators will be final, judgment may be entered upon it in any court having jurisdiction thereof, and will not be subject to modification or appeal except to the extent permitted by the FAA. EACH PARTY ACKNOWLEDGES THAT IT KNOWINGLY WAIVES THE RIGHT TO A TRIAL BY JURY RELATING TO ALL CLAIMS.

10. Other Provisions. Except as expressly provided in this Agreement, these Terms are a complete statement of the agreement between you and Focus POS, and they describe the entire liability of Focus POS and its vendors and suppliers and your exclusive remedies with respect to your access and use of the Software. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. These Terms do not limit any rights that Focus POS may have under trade secret, copyright, patent, or other laws. Focus POS’ failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other obligation.