Merchant User License Agreement
This Merchant User License Agreement (the "Agreement") dated as of the date of acceptance by means of a click-through, is made by and among Beyond Main Street, LLC a New Jersey Corporation ("Beyond Main") and the entity designated by the registration data provided herewith ("Licensee") and applies to Licensee's use of Point of Sale software from Beyond Main and Licensee's use of Point of Sale services provided by Beyond Main ("Beyond Main Services").
READ THIS LICENSE CAREFULLY BEFORE LOADING ANY SOFTWARE FROM BEYOND MAIN OR USING THE BEYOND MAIN SOFTWARE OR BEYOND MAIN SERVICES. BY LOADING THE BEYOND MAIN SOFTWARE OR USING THE BEYOND MAIN SERVICES, LICENSEE ACCEPTS AND AGREES TO BECOME BOUND BY THE TERMS OF THIS LICENSE. BEYOND MAIN RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT BY PROVIDING NOTICE OF CHANGES ON THE BEYOND MAIN WEBSITE. LICENSEE AGREES TO PERIODICALLY INSPECT THE BEYOND MAIN WEBSITE TO STAY INFORMED ABOUT SUCH CHANGES. LICENSEE AGREES THAT LICENSEE'S CONTINUED USE OF THE BEYOND MAIN SERVICE AFTER SUCH CHANGES ARE ANNOUNCED CONSTITUTES ACCEPTANCE OF SUCH CHANGES.
Beyond Main shall retain the ownership of the provided copy of Beyond Main software and the documentation provided therewith (referred to as a single entity, or as components, as "the Licensed Software") which is licensed on a non-exclusive basis for use under the following conditions.
1. Permitted Uses
Subject to the terms hereunder, Beyond Main hereby grants to Licensee a limited, non-exclusive, non-transferrable, revocable license, without the right to sub-license, to install and operate the Licensed Software and to operate an account on the Beyond Main website and related applications solely for the benefit of Licensee and not for any third party, until the termination of this Agreement. Any rights not expressly granted hereunder are reserved. There are no implied rights of any kind. To the extent that the Licensed Software includes intellectual property rights of any third party ("Third Party Rights"), the license granted is to the extent that Beyond Main is able to license such Third Party Rights.
2. Prohibited Uses
Licensee shall not (a) make copies of or further distribute the Licensed Software, including copying onto any other medium, (b) distribute, rent, sublicense, lease, resell, or assign the Licensed Software, (c) alter, modify or adapt the Licensed Software or the Beyond Main Services, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (d) export the Licensed Software without the appropriate foreign government licenses and without Beyond Main's prior written approval, (e) resell, rent or otherwise provide access to the Beyond Main services to a third party or (f) take any action in an attempt to obtain any other Beyond Main user's data, cause malfunction, crash, tamper with or otherwise impair the Beyond Main website and related applications, and their services. Any rights not expressly granted hereunder are reserved by Beyond Main.
No rights in the Licensed Software or Beyond Main Services are granted, whether expressly or by implication, including, without limitation, any rights in any patents, copyrights, trademarks or trade secrets embodied therein, except in connection with the permitted uses expressly described herein.
The sale of, including but not limited to, drugs, CBD, illegal products, counterfeit goods, and adult content are not permitted on our marketplace under any circumstances and are grounds for both cancellation and prosecution. For a full list of products not able to be sold, visit https://stripe.com/restricted-businesses
4. End Customer Personal Information
5. Limited Liability
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED UNDER GOVERNING LAW.
LICENSEE AGREES THAT THE LICENSED SOFTWARE AND BEYOND MAIN SERVICES ARE PROVIDED "AS IS." WITHOUT ANY WARRANTY EXPRESS OR IMPLIED AND WHETHER AS TO MERCHANTABILITY, FITNESS FOR PURPOSE OR INFRINGEMENT. NO WARRANTY OR REPRESENTATION IS GIVEN, AND/OR ANY LIABILITY IS ACCEPTED, BY BEYOND MAIN IN RELATION TO THIRD PARTY RIGHTS. ANY USE OF THE LICENSED SOFTWARE AND BEYOND MAIN SERVICES IS AT LICENSEE'S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL BEYOND MAIN OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS ("BEYOND MAIN PARTIES") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE BEYOND MAIN SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, BEYOND MAIN IS NOT RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR BEYOND MAIN SERVICES, LOSS OF DATA, THE COSTS OF RECOVERING DATA, ANY LOSSES INCURRED ARISING IN ANY WAY FROM USE OF THE OFFLINE CREDIT PAYMENTS FEATURE, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS, LOSSES, OR DAMAGES YOU MIGHT INCUR. BEYOND MAIN MAKES NO WARRANTY OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE LICENSED SOFTWARE OR BEYOND MAIN SERVICES FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GIVEN THAT LICENSEE IS IN A BETTER POSITION THAN BEYOND MAIN TO FORESEE AND EVALUATE ANY POTENTIAL DAMAGE OR LOSS WHICH LICENSEE MAY SUFFER IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE AND/OR THE BEYOND MAIN SERVICES AND THAT BEYOND MAIN CANNOT ADEQUATELY INSURE ITS POTENTIAL LIABILITY TO LICENSEE, LICENSEE ACKNOWLEDGES AND AGREES THAT THE EXCLUSIONS AND LIMITATIONS CONTAINED HEREIN ARE REASONABLE. TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNREASONABLE, BEYOND MAIN'S AGGREGATE LIABILITY SHALL NOT EXCEED $100. LICENSEE SHALL ACT AT ALL TIMES TO MITIGATE ANY LIABILITY.
LICENSEE ACKNOWLEDGES AND AGREES THAT SHARING OF ITS ACCOUNT INFORMATION, LOGIN INFORMATION OR PASSWORDS SHALL BE AT ITS SOLE AND ABSOLUTE RISK AND THAT BEYOND MAIN SHALL NOT BE LIABLE FOR ANY DAMAGE ARISING AS A RESULT OF SUCH SHARING. Some countries do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you
Licensee may terminate this license at any time by providing a 30 days' prior written notice. All fees paid are non-refundable. Beyond Main, in its sole discretion, has the right to suspend or terminate this license and your account and refuse any and all current or future use of the Beyond Main Services for any reason at any time. Licensee's duties to (i) pay amounts due and payable, (ii) refrain from any kind of reverse engineering or other act in violation of this agreement or (iii) indemnify Beyond Main and the Beyond Main Parties shall survive termination of this Agreement. Upon termination Licensee will destroy all copies of the Licensed Software and documentation onto which the Licensed Software or documentation has been installed. Upon termination Beyond Main shall terminate the Licensee's access to their Beyond Main account, the account itself and the data residing therein. LICENSEE MUST EXPORT THEIR ACCOUNT DATA PRIOR TO TERMINATION OF THE BEYOND MAIN SERVICE. BEYOND MAIN SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION. In addition, Beyond Main reserves the right and Licensee acknowledges such right for Beyond Main to terminate service of Licensee's account on 30 days' notice if Beyond Main determines in its sole discretion that it is not capable of fully meeting the apparent requirements of Licensee.
Licensee agrees that the Licensed Software and the operation of the Beyond Main Services and its processes are the confidential information of Beyond Main and agrees not to disclose such software or such operation and processes to any third party. Licensee agrees that breach of this duty of confidentiality shall cause irreparable harm for which monetary damages would be difficult to quantify or insufficient and therefore Beyond Main shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond.
8. Credit Card Processing
Licensee understands Beyond Main utilizes Stripe processing and services and agrees to the fees set forth by Stripe to provide credit card processing services through Beyond Main.
Licensee agrees that Beyond Main shall not be liable for any improperly processed transactions, illicit access to Licensee's account with its payment gateway provider(s) or any of Licensee's transaction data or unauthorized disclosure and use of passwords or its payment gateway provider(s)'s account access information. YOU HEREBY INDEMNIFY AND AGREE TO HOLD BEYOND MAIN HARMLESS FROM ANY CLAIM, (INCLUDING ANY ASSOCIATED DAMAGES, COSTS AND REASONABLE ATTORNEYS FEES INCURRED BY BEYOND MAIN OR ITS AFFILIATES) BROUGHT AGAINST BEYOND MAIN OR ITS AFFILIATES BY ANY THIRD PARTY ARISING FROM OR IN CONNECTION WITH ANY LOSS OR DAMAGE WHOLLY OR PARTIALLY CAUSED BY YOUR USE OF THE OFFLINE CREDIT PAYMENTS FEATURE IN ORDER TO ACCEPT CREDIT CARD TRANSACTIONS WITHOUT AUTHORIZATION WHERE SUCH TRANSACTIONS ARE SUBSEQUENTLY DENIED BY THE TRANSACTION PROCESSOR FOR ANY REASON.
LICENSEE AGREES THAT USE OF THE PAYMENT GATEWAY PROVIDER(S)'S SYSTEMS OR SERVICES IS AT LICENSEE'S SOLE AND ABSOLUTE RISK AND THAT NEITHER BEYOND MAIN, NOR ANY BEYOND MAIN PARTY SHALL BE LIABLE IN ANY WAY OR UNDER ANY THEORY IN THE EVENT OF ANY CLAIM, DAMAGE OR EXPENSE INCURRED BY LICENSEE ARISING FROM USE OF THE PAYMENT GATEWAY PROVIDER(S)'S SYSTEMS OR SERVICES. LICENSEE ACKNOWLEDGES THAT BEYOND MAIN IS NOT RESPONSIBLE FOR ITS PAYMENT GATEWAY AND CREDIT CARD PROCESSING PROVIDER(S)'S SYSTEMS AND THAT NO WARRANTY FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED, ARISES ON THE PART OF BEYOND MAIN. LICENSEE AGREES THAT LICENSEE'S SOLE RECOURSE IN THE EVENT OF ANY CLAIM IS AGAINST ITS PAYMENT GATEWAY AND CREDIT CARD PROCESSING PROVIDER(S) AND LICENSEE HEREBY IRREVOCABLY RELEASES AND WAIVES ANY CLAIM IT HAS OR MAY HAVE, WHETHER OR NOT INCHOATE, AGAINST BEYOND MAIN AND THE BEYOND MAIN PARTIES ARISING FROM USE OF ITS PAYMENT GATEWAY AND CREDIT CARD PROCESSING PROVIDER(S)'S SYSTEMS.
The Licensee represents and warrants that it has the due right and power to enter into this Agreement, entering into this Agreement will not cause the breach of any agreement Licensee has with a third party and that all of the registration information provided to Beyond Main is accurate in all respects. The Licensee also represents and warrants that it will continue to comply with Beyond Main, Inc. Terms & Conditions signed with Beyond Main, Inc. upon joining Beyond Main platform.
10. Choice of Law and Forum
This Agreement shall be construed under the laws of the State of New Jersey, U.S.A. as applied to contracts performed entirely within the state. Any dispute arising under this Agreement shall be exclusively heard in the state or federal courts residing in Summit, New Jersey regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.