GAS POS, INC.  Managed

Services Agreement 

 

This Managed Services Agreement (“Agreement”) is made between GAS POS, INC. (GAS POS, INC. or “GP”) and any person or entity who completes the registration process (“YOU”, “YOUR”, or Marketer). By clicking that you agree, you accept all terms and conditions herein as if signed in person. YOU and GP are sometimes referred to individually as a “party” and collectively as the “parties.” Marketer hereby enters into a service agreement with GP for the hardware equipment necessary to operate the licensed software, as determined by GP, together with the licensed software, Helpdesk and onsite maintenance (collectively referred to as the “Managed Services Program”) for the term as further described on the Merchant Application and Agreement (“MAA”). Marketer agrees to pay to GP a monthly managed service fee listed on the MAA, a onetime cost for installation for the Intrepid POS upgrade plus any applicable sales or use taxes described on the MAA, and execute the MAA. If new wires or one or more controllers is required (e.g., G-Site replacement or Wayne Sites), the price will increase based on a time and materials basis, and the funds owed will be payable at the time of install.  Marketer agrees to pay any additional fees due to withdrawal of an order, a cancellation of a site survey (24 hour notification required) and the pick-up of the hardware and software.

 

GP shall have the option to terminate this Agreement upon the occurrence of any of the following: a) Failure of Marketer to cure any default hereunder within thirty (30) days after receiving written notice of the default; b) Upon agreement of the parties; or c) immediately upon the unauthorized, unilateral, adverse action of the Marketer including the breach of the Merchant Agreement, the unauthorized shutdown of the equipment, violation of the exclusivity provisions of this Agreement, or the unauthorized removal or reproduction of GP equipment or software. Marketer acknowledges that GP (or the GP lessor) owns all equipment described on the application, and that, immediately upon termination or breach of this Agreement, the Managed Service equipment shall be returned to GP. Marketer agrees not to remove the Managed Service equipment from the location described on the MAA without the express written consent of GP. Marketer further acknowledges that the licensed software, including the software programs, database information and user materials (the “Licensed Software”) are copyrighted material and contain Confidential Information and trade secrets. Marketer shall not copy, decode, reverse engineer, reprint, transcribe or reproduce in whole or part, the Licensed Software or disclose the Licensed Software to any third party. Marketer acknowledges that the licensor of the Licensed Software is entitled to all rights and benefits afforded under federal law in connection with the Licensed Software. Marketer agrees to all terms and conditions found in TERMS OF SERVICE AGREEMENT FOR FUEL SYSTEM APP SERVICE. Marketer agrees not to delete, override or alter the license or proprietary legend in the copyright notice on the Licensed Software. After installation, if the Marketer wishes to add additional equipment to their upgrade, the Marketer agrees to pay any additional fees charged to GP by the vendor. Marketer, at its sole expense, agrees to prepare the site prior to installation of the Managed Service equipment in accordance with GP specifications. GP, at its discretion, will either repair and/or replace malfunctioning equipment if such malfunction arises out of normal use. Marketer agrees that they will pay the cost of any repairs and/or replacement resulting from damage not covered by the original equipment warranty or maintenance agreement. Marketer agrees that replacement of the Managed Service equipment will be determined by and arranged by GP It is acknowledged that this maintenance agreement does NOT cover damage or malfunction caused by abuse, misuse or tampering; spillage; acts of nature such as fire, water, wind or lightning; alteration, modification or adjustment of the equipment done by other-than-authorized contractors; installation, repair or maintenance (other than specified operator maintenance) of the equipment or related equipment, attachments, peripheral or optional features by other-than-authorized contractors; adverse environmental conditions, including, without limitation, excessive heat, moisture, corrosive elements, or dust or other airborne contaminants; radio frequency interference; electrical power failure; power variations (such as spikes and excessive noise) and line voltages beyond those specified for the equipment; unusual physical, electrical or electromagnetic stress; or any other condition outside of the equipment’s environmental specifications. Marketer hereby warrants that it has the right to and hereby does grant to GP the right to enter upon the location for the purpose of installing, repairing, maintaining or removing the Integrated POS System at any time during reasonable business hours. Marketer agrees to indemnify and hold GP harmless from any and all damages arising out of (i) a breach of this warranty or (ii) the installation, use, repair, maintenance, down time or removal of the Integrated POS System. This Agreement may not be transferred or assigned by Marketer without prior written consent from GP. This Agreement shall be governed by and construed in accordance with the laws of the State of Alabama, without regard to the conflict of law rules of such state. This Agreement shall not be modified, altered, amended or revoked except in writing duly executed by the parties. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any right hereunder. Marketer will ensure the Managed Service equipment is maintained properly so as to minimize the occurrence of unreadable credit cards due to unclean and/or malfunctioning equipment. Jurisdiction shall be exclusively in the State of Alabama. Each party expressly waives his/her/their right to jurisdiction in any other forum outside of Alabama, specifically Jefferson County, Alabama for resolution of any dispute arising out of, related to, or in connection with, this Agreement. The exclusive venue for litigation of any matter arising out of, related to, or in connection with this Agreement shall be Jefferson County, Alabama. Helpdesk and maintenance service will be provided to cover necessary repairs of the Managed Service equipment. Help desk shall be provided per GP’s help desk agreement. All calls for service must be to the GP Helpdesk at the toll-free number provided and the dispatch of field service personnel will be at the discretion of and the responsibility of that Helpdesk.

 

 

Standard Terms and Conditions for Help Desk

 

(January 8, 2019)

THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU ("CUSTOMER") GAS POS, INC. ("GP") REGARDING HELP DESK SERVICES (THE "SERVICES") PROVIDED BY GP TO CUSTOMER FOR THE GP SYSTEM. FOR PURPOSES OF THIS AGREEMENT, THE GP SYSTEM IS COMPRISED OF THE GP SOFTWARE, COMPUTER HARDWARE, THE CUSTOMER DISPLAY, THE ACCOMPANYING PRINTER AND PINPAD, THE CASH DRAWER AND ALL CABLES CONNECTING THE FOREGOING. ALL REFERENCES HEREIN TO "CUSTOMER" MEANS YOU AND THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT. BY ORDERING THE SERVICES FROM GP OR ITS DESIGNATED AGENT, OR BY ACCEPTING THIS AGREEMENT, CUSTOMER AGREES TO THE FOLLOWING TERMS AND CONDITIONS:

 

SECTION 1. DESCRIPTION OF SERVICES

 

The GP Help Desk shall function 7 days a week, 24 hours a day, including all holidays. The Help Desk shall take calls or request for help from Customer or Customer owned locations (“Customer Locations”), either over the phone or through the GP Help Request Function, accessed by Customer in the GP Software. Non-operational problems may be diagnosed and repaired electronically by the Help Desk staff by dialing into the Customer Location. If it is determined that the problem is caused by GP Hardware or Device, and on-site maintenance services may become necessary, the Help Desk shall either arrange GP technician to come on site or refer Customer or the Customer Location to an independent service contractor. For non-GP related problems, GP shall refer Customer or the Customer Location to an independent service contractor, and all such repairs and charges associated with non-GP related problems shall be the responsibility of Customer.

 

SECTION 2. FEES; PAYMENT AND TAXES

 

2.1 FEES. Customer shall pay the fees for the Services as set forth in the MAA provided by GP or its designated agent. Such fees shall be paid directly to GP. Although the Services are billed on a monthly basis, the Services are purchased herein for the length of the Term as listed in the MAA and are not refundable. For clarity, there will be no refund of or credit given for any of the fees paid or owed for the Services for the length of the Term for as long as GP is able and willing to provide Services to Customer. In the event of Default on the part of the Customer, the total balance owed herein for the length of the Term shall become due and payable immediately.

             

 

2.2 TAXES; PAYMENT TERMS. The fees for the Services do not include any excise, sales, use or other taxes, and therefore are subject to increase in the amount of any such taxes (excluding any tax on GP's net income) that GP may be required to collect or pay upon the delivery of the Services. All purchases must be paid by credit card at the time of an order unless a credit application has been submitted and approved by GP prior to ordering. Payment terms for all invoiced amounts will be thirty (30) days from the date of invoice as long as the account is current. Any invoiced amount which is not paid when due shall bear a late fee at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less. If Customer fails to pay any invoiced amount when due, or if for any other reason GP is not satisfied with the credit-worthiness of Customer, then GP shall be entitled to withhold the provision of any Services until Customer reestablishes its credit to GP's satisfaction.

 

SECTION 3. WARRANTY DISCLAIMERS; LIMITATION OF LIABILITY

 

 

3.1 DISCLAIMER OF WARRANTIES. THE SERVICES ARE BEING PROVIDED TO CUSTOMER "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

 

3.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT: (1) GP'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE AGGREGATE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE INCIDENT UNDERLYING GP'S LIABILITY; (2) GP SHALL NOT BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF GP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (3) GP SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE SERVICES, AND CUSTOMER SHALL DEFEND GP FROM, AND INDEMNIFY AND HOLD GP HARMLESS AGAINST, ALL SUCH CLAIMS. THE LIMITATIONS ON GP'S LIABILITY SET FORTH IN CLAUSES "(1)" AND "(3)" ABOVE SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY GP'S NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE FOREGOING STATES THE ENTIRE LIABILITY OF GP WITH REGARD TO THIS AGREEMENT AND THE SERVICES. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 3 ARE A FUNDAMENTAL PART OF THE BASIS OF GP'S BARGAIN HEREUNDER, AND GP WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.

 

             

SECTION 4. TERM; TERMINATION

 

4.1 TERM. This Agreement shall commence on the date that the Customer enrolls, and shall continue thereafter for the length of the Term listed in the MAA, unless otherwise specified in Customer's accepted purchase order. Thereafter, Customer can choose to continue the Services at GP's current price per Customer Location per year if Customer renews before the current Services term expires. For expired Services, new Services will not start until payment is processed. Receipt of payment prior to expiration will ensure no lapse in current coverage. For credit card orders, allow 24 business hours for processing. Customer Locations that have lapsed coverage will pay a higher price than those renewed prior to expiration. GP reserves the right to terminate the Services by written notice to Customer at least thirty (30) days prior to each renewal date.

 

4.2 SURVIVAL. Notwithstanding anything to the contrary contained in this Agreement, Sections 2 (until all fees are paid), 3, 4.2 and 5 shall survive any expiration or termination of this Agreement.

 

SECTION 5. GENERAL

This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter. Any term or condition in any order, confirmation or other document furnished by Customer, which is in any way inconsistent with or in addition to the terms and conditions set forth in this Agreement, is hereby expressly rejected. This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of Alabama, without regard to its conflicts of laws principles. Customer may not assign this Agreement, in whole or in part, without GP's prior written consent; except that Customer may assign this Agreement in its entirety without GP's consent to any entity that buys or otherwise acquires all or substantially all of Customer's assets, whether by merger, reorganization or otherwise, provided Customer give GP written notice of such assignment and the assignee agrees to be bound by the terms of this Agreement. Subject to the preceding sentence, this Agreement shall bind Customer and its permitted successors and assigns. Notwithstanding anything to the contrary herein, GP shall be free to assign this Agreement and may engage subcontractors to perform any of its obligations under this Agreement. Any modification, amendment, supplement, or other change to this Agreement must be in writing and signed by duly authorized representatives of GP and Customer. All waivers must be in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. Any notice required hereunder shall be in writing and shall be delivered in person or by courier, electronic mail or, addressed to GP at 419 North Main St., Suite 200, North Little Rock Arkansas 72114, Attn: Legal Department, and to Customer at the address for Customer in GP's customer database, or to such other address as shall be given in accordance with this paragraph. Any such notice shall be effective upon receipt GP shall not be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, fires, floods, labor disturbances, riots or wars.

END OF TERMS AND CONDITIONS FOR HELP DESK SERVICES 

GAS POS, INC. 

STANDARD TERMS AND CONDITIONS FOR SOFTWARE MAINTENANCE SERVICES

 

THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU ("CUSTOMER") AND GAS POS, INC. ("GP") REGARDING SOFTWARE MAINTENANCE SERVICES PROVIDED BY GP TO CUSTOMER FOR THE SOFTWARE (THE "SERVICES"). FOR PURPOSES OF THIS AGREEMENT, THE SOFTWARE IS COMPRISED OF THAT CERTAIN APPLICATION SOFTWARE (IN OBJECT CODE FORM) USED BY CUSTOMER ON GP'S POS SYSTEMS, IDENTIFIED BY GP BY REFERENCE TO CUSTOMER'S BRAND OR HOST PROVIDER, AS WELL AS CERTAIN OTHER APPLICATION SOFTWARE (IN OBJECT CODE FORM) FOR GP DEVICES DESIGNATED BY GP FROM TIME TO TIME IN WRITING AS COVERED UNDER GP'S SOFTWARE MAINTENANCE PROGRAM, INCLUDING WITHOUT LIMITATION, GP PAYMENT APPLICATION AND GP SERVICE CENTER ALL REFERENCES HEREIN TO "CUSTOMER" MEAN YOU AND THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT. BY ORDERING THE SERVICES FROM GP, OR BY ACCEPTING THIS AGREEMENT, CUSTOMER AGREES TO THE FOLLOWING TERMS AND CONDITIONS:

 

1. SOFTWARE UPDATES

 

1.1 UPDATES. During the term of this Agreement, Customer shall be entitled to obtain Software updates from GP in accordance with Section 1 ("Software updates"). Software updates shall include error corrections, feature enhancements, and other general industry regulation and compliance updates on a when and if available basis, as determined by GP in its sole discretion. Customer acknowledges that GP is under no obligation to release any Software updates under this Agreement.

 

1.2 AVAILABILITY. Software updates, when and if available, will be distributed either through GP Direct Dial In, directly from GP through remote software downloading or shipped directly to you on special media device.

 

 

2. SERVICE FEES

 

2.1 FEES. Customer shall pay GP or its designated agent the service fees for the Services as set forth on the MAA. Although the Services are billed on a monthly basis, the Services are purchased herein for the length of the Term as listed in the MAA and are not refundable. For clarity, there will be no refund of or credit given for any of the fees paid or owed for the Services for the length of the Term for as long as GP is able and willing to provide Services to Customer. In the event of Default on the part of the Customer, the total balance owed herein for the length of the Term shall become due and payable immediately.

 

2.2 TAXES; PAYMENT TERMS. The fees for the Services do not include any excise, sales, use or other taxes, and therefore are subject to increase in the amount of any such taxes (excluding any tax on GP's net income) that GP may be required to collect or pay upon the delivery of the Services. All purchases must be credit card at the time of an order unless a credit application has been submitted and approved by GP prior to ordering. Payment terms for all invoiced amounts will be thirty (30) days from the date of invoice as long as the account is current. Any invoiced amount which is not paid when due shall bear a late fee at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less. If Customer fails to pay any invoiced amount when due, or if for any other reason GP is not satisfied with the credit-worthiness of Customer, then GP shall be entitled to withhold the provision of any Services until Customer reestablishes its credit to GP's satisfaction.

 

 

3. TERM AND TERMINATION

 

3.1 INITIAL TERM. The term of this Agreement shall begin on the date that the Customer enrolls in GP's software maintenance program, and shall continue thereafter as described in the MAA. If Customer has an existing contract with GP for Help Desk services, the parties agree that the Initial Term shall expire as of the date such Help Desk contract will expire (not to exceed one year).

 

3.2 RENEWAL TERM. This term shall automatically renew and Customer shall continue the Services at GP's current price per Customer Location per month unless notice by either party of a change in service at least thirty (30) days in advance. GP reserves the right to terminate the Services by written notice to Customer at least thirty (30) days prior to each renewal date.

 

3.3 FAILURE TO RENEW. Customer acknowledges that this Agreement shall automatically renew in the absence of written notice at least thirty (30) days in advance of the Customer’s intent to cancel service. If this Agreement is not renewed for any reason and if Customer desires to obtain the Services for the Software at any later date, GP may require Customer to pay GP an instant enrollment fee, as well as full payment of the service fees for the lapsed period. If GP agrees to honor Customer's request to restart the Services, then, upon such payment: (a) this Agreement shall be deemed renewed retroactive to the renewal date, and (b) Customer shall be entitled to access any Software updates issued by GP during the lapsed period. GP has no obligation to honor any Customer request to restart the Services under this Section 3.3.

 

3.4 TERMINATION. If any of the following circumstances occur, GP shall have the right to terminate this Agreement by giving notice to Customer: (a) Customer fails to pay when due any sum owing hereunder and such failure continues for ten (10) days after the date when due; (b) Customer fails to perform any of its other obligations under this Agreement and such failure continues for a period of twenty (20) days after receipt by Customer of notice from GP specifying such failure; or (c) immediately upon the unauthorized, unilateral, adverse action of the Marketer including the breach of the Merchant Agreement, the unauthorized shutdown of the equipment, violation of the exclusivity provisions of this Agreement, or the unauthorized removal or reproduction of GP equipment or software. In addition, GP will have the right to terminate this Agreement as to particular Software by giving thirty (30) days written notice to Customer in the event GP ceases to maintain such Software for all its customers generally.

 

3.5 SURVIVAL. Notwithstanding anything to the contrary contained in this Agreement, Sections 2 (until all fees are paid), 3.3, 3.4, 3.5, 4, 5 and 6 shall survive any expiration or termination of this Agreement.

 

 

4. LICENSE; OWNERSHIP

 

4.1  LICENSE FEE. Customer shall pay directly to GP a Yearly License fee for the use of any version of GP Software as set forth on a separate signed Quote/Purchase Agreement between the Customer and GP. Such fees are mandatory and shall be paid on an annual basis. All fees are nonrefundable.

 

4.2  PAYMENT TERMS. Payment terms for all invoiced amounts will be thirty (30) days from the date of invoice as long as the account is current. Any invoiced amount which is not paid when due shall bear a late fee at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less. If Customer fails to pay any invoiced amount within Sixty (60) days when due, Customer must immediately discontinue use of the Software.

 

4.3 LICENSE. Customer acknowledges and agrees that GP is granting Customer a non-exclusive, non- transferable limited license to use the Software in the country, for which it was designed, for the sole purpose of using such Software at Customer's site. All Software updates provided pursuant to this Agreement shall be regarded as the "Software" for purposes of this Agreement. Any Software pre-loaded on GP Hardware, branded GP, HP or Otherwise prior to delivery to the end user will constitute a “Device”. GP Software is only Licensed for use on the Device in which it was sold.

 

4.4 OWNERSHIP; RESTRICTIONS. As between the parties, GP owns all right, title and interest in the Software, except for the limited right granted to Customer under Section 4.1 herein. Customer shall not reverse engineer, decompile, disassemble, translate, modify, alter or change the Software, or any part thereof. Customer shall not copy the Software, except to install the Software on the GP equipment at Customer's site. Except as permitted in connection with an assignment under Section 6 below, Customer shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer the Software. Customer shall have no right to obtain source code for the Software by any means. Customer shall not remove from the Software, or alter, any of GP's trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Software.

 

5. DISCLAIMER; LIMITATION OF LIABILITY

 

5.1 DISCLAIMER OF WARRANTIES. GP MAKES NO REPRESENTATIONS OR WARRANTIES HEREUNDER AND HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES OR WITH RESPECT TO ANY SOFTWARE UPDATES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GP DOES NOT WARRANT AND MAKES NO ASSURANCES THAT THE OPERATION OF THE SOFTWARE WILL BE SECURE, UNINTERRUPTED OR ERROR FREE AND HEREBY DISCLAIMS ALL LIABILITY ON ACCOUNT THEREOF.

 

5.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT: (1) GP'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND THE SERVICES, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE AGGREGATE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE INCIDENT UNDERLYING GP'S LIABILITY; (2) GP SHALL NOT BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF GP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (3) GP SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE SOFTWARE OR THE SERVICES, AND CUSTOMER SHALL DEFEND GP FROM, AND INDEMNIFY AND HOLD GP HARMLESS AGAINST, ALL SUCH CLAIMS. THE LIMITATIONS ON GP'S LIABILITY SET FORTH IN CLAUSES "(1)" AND "(3)" ABOVE SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY GP'S NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE FOREGOING STATES THE ENTIRE LIABILITY OF GP WITH REGARD TO THIS AGREEMENT, THE SOFTWARE AND THE SERVICES. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 5 ARE A FUNDAMENTAL PART OF THE BASIS OF GP'S BARGAIN HEREUNDER, AND GP WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.

 

 

6. GENERAL

 

This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter. Any term or condition in any order, confirmation or other document furnished by Customer which is in any way inconsistent with or in addition to the terms and conditions set forth in this Agreement is hereby expressly rejected. This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of Alabama, without regard to its conflicts of laws principles. Customer may not assign this Agreement, in whole or in part, without GP's prior written consent; except that Customer may assign this Agreement in its entirety without GP's consent to any entity that buys or otherwise acquires all or substantially all of Customer's assets, whether by merger, reorganization or otherwise, provided Customer give GP written notice of such assignment and the assignee agrees to be bound by the terms of this Agreement. Subject to the preceding sentence, this Agreement shall bind Customer and its permitted successors and assigns. Notwithstanding anything to the contrary herein, GP shall be free to assign this Agreement and may engage subcontractors to perform any of its obligations under this Agreement. Any modification, amendment, supplement, or other change to this Agreement must be in writing and signed by duly authorized representatives of GP and Customer. All waivers must be in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. Any notice required hereunder shall be in writing and shall be delivered in person or by courier, or sent by electronic facsimile (fax), and addressed to GP at 419 North Main Street, Suite 200, North Little Rock, Arkansas 72114, Attn: Legal Department, and to Customer at the address for Customer in GP's customer database, or to such other address as shall be given in accordance with this paragraph. Any such notice shall be effective upon receipt GP shall not be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, fires, floods, labor disturbances, riots or wars.

 

 

END OF TERMS AND CONDITIONS

FOR SOFTWARE MAINTENANCE

SERVICES

 

TERMS OF SERVICE AGREEMENT FOR FUEL SYSTEM APP SERVICE

 

This TERMS OF SERVICE AGREEMENT (“Agreement”) is made between GAS POS, INC. (hereinafter "GP") and any person or entity that completes the registration process (“YOU” or “YOUR”). YOU and GP are sometimes referred to individually as a “party” and collectively as the “parties.” 


BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU ARE A CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER ENTITY, THEN THE PERSON SIGNING THIS AGREEMENT ON THE ENTITY’S BEHALF REPRESENTS THAT HE OR SHE IS AUTHORIZED TO SIGN FOR AND BIND THE ENTITY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, GP WILL PROMPTLY CANCEL THIS TRANSACTION AND YOU MAY NOT ACCESS OR USE OR INSTALL ANY PART OF THE SERVICE.


1. DESCRIPTION OF FUEL SYSTEM APP SERVICE, EXCLUSIONS & RESPONSIBILITIES


1.1 GENERAL DESCRIPTION. GP provides a data transportation service to allow the sale of fuel at the pump and inside.


1.2 SUPPORT. GP will provide support to YOU for current versions of the Service through a dedicated e-mail address and a dedicated phone line listed on the support page that may change from time to time. 24/7 365 support plans may be purchased for the annual price described in the MAA. Calls to the technical support line for merchants without support plans will be at a per instance basis that will be disclosed at the time of service, and must be paid in advance. Onsite support for non-GP issues is billable at the rate of $ 79 dollars per hour plus 1.50 per mile, and the replacement cost of any device that is inoperable. Payment is due at the time of service via credit or debit card. Failure to pay any onsite service bill voids your right to use the Fuel System app, any warranty that may exist, and your rights to receive future service. Email support is available at no charge. GP will investigate YOUR questions and problems promptly. YOU agree to provide adequate information and access to GP to assist in the investigation and to confirm that any problems have been resolved. GP does not provide guaranteed response time, but will make good faith effort to answer emails and voice mails within twenty-four (24) hours or less during weekdays, excluding holidays.


1.3 Exclusions and Limitations.

1.3.1 YOU acknowledge that access to and use of the Service is dependent upon the availability and proper functioning of other third party products or services – including YOUR Fuel Dispensers, Fuel Controller, Tank Monitors, Credit Card readers, point-of-sale software, payment gateway service(s) or back office system, for example. GP has no control over these third party products or services. GP disclaims responsibility and liability for any inability to access or use the Service, or degradation of the performance of the Service, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, these third party products or services. You are solely responsible for the configuration of your instances of these third party products or services.

 

1.3.2 GP has no ability to regulate the accuracy of data provided by, or to YOU in YOUR use of the Fuel System App Service.

 

1.3.3 GP will have the right to terminate this Agreement upon reasonable written notice to YOU should, for any reason, the providers of YOUR 3rd party hardware (such as fuel dispensers, card readers, tank monitors, point of sale system, or any other hardware materially modify or terminate GP’s access to their products.

 

1.3.4 GP offers YOU access to the Fuel System App software (“GP Programs”) through the Internet, which is not owned, operated, managed by or in any way affiliated with GP. YOUR use of the Internet is solely at YOUR own risk and is subject to all applicable local, state, national and international laws and regulations. Access to the Internet is dependent on numerous factors, technologies and systems, many of which are beyond GP’s authority and control.

 

1.3.5 All hosted systems will be owned or leased by GP and will remain under the control of GP during the Term of this Agreement

 

 

1.5 YOUR RESPONSIBILITIES.

 

1.5.1 YOU will be responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, and other physical requirements for YOUR use of the Service, including, without limitation, telecommunications and Internet access connections and links, web browsers of other equipment, programs and services required to access and use the Service.

 

1.5.2 YOU will not access or use the Fuel System App Service in a way, intended or unintended, to avoid incurring fees or to exceed usage limits or that will cause, in GP’s sole discretion, inordinate burden on the Fuel System App Service or GP’s system resources or capacity.

 

1.5.3 YOU bear all responsibility for the confidentiality of YOUR passwords. YOU will not share passwords or other access information or devices or otherwise authorize any third party, to access or use the Fuel System App Service. YOU will be solely responsible for all activities in connection with the Service that occur under YOUR username(s) and password(s).

 

1.5.4 YOU will be solely responsible for the security, confidentiality and integrity of all messages and content that you transmit through the Service. You will be solely responsible for any authorized or unauthorized access to YOUR account by any person.

 

1.5.5 YOU agree not to disseminate, store or transmit any viruses, Trojan horses or any other malicious code or program.

 

1.5.6 YOU agree not to export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions.

 

1.5.7 YOU agree not to engage in any other activity deemed by GP to be in conflict with the spirit or intent of this Agreement.

 

1.5.8 YOU will obtain, at YOUR own expense, all rights necessary to use third party products and YOU acknowledge that GP is not the licensor or sub-licensor of any third party products.

 

1.5.9 YOU will at all times will be PCI Compliant.

 

1.5.10 In consideration of the goods and services outlined herein, YOU assign to GP any and all rebates, refinance, or bonus payments from the payment processing company or any other third party paid as the result of entering into this agreement, and disclaim any and all rights to said payments and/or proceeds so paid, if any, and further authorize GP to make decisions and act on YOUR behalf with regard to the contract between YOU and the payment processing company. YOU grant GP a limited power of attorney for the purpose of facilitating this provision and authorize GP to act as YOUR attorney in fact to authorize, contract, receive, endorse, or provide payment instructions to any payment processing company or any other third party to facilitate or amend the contract between YOU and the payment processing company, including the right to change payment processing company if GP chooses, and/or the assignment of any such payment or proceeds to GP.  

 

2. RIGHTS GRANTED.

 

2.1 Right to Use the Services. GP will provide the Service in accordance with the terms of this Agreement. For the duration of the Service term YOU will have the non-exclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for YOUR internal business operations and subject to the terms of this Agreement. The Services may not be resold to a third party. Subject to the terms of this Agreement.

 

2.2 No Software Delivery Obligation. GP has no software delivery obligation and will not ship copies of any of the GP Programs used to provide the Services to YOU as part of the Services. Upon the end of the Service Order, YOUR right to access or use the GP Programs specified in this Agreement and the Services will terminate.

 

3. FEES AND PAYMENT.

 

3.1 Customer shall pay GP or its designated agent the service fees for the Services as set forth on the MAA. Although the Services are billed on a monthly basis, the Services are purchased herein for the length of the Term as listed in the MAA and are not refundable. For clarity, there will be no refund of or credit given for any of the fees paid or owed for the Services for the length of the Term for as long as GP is able and willing to provide Services to Customer. All amounts are quoted in and must be paid in US dollars. GP reserves the right to suspend YOUR access to and use of the Service if YOU fail to pay any undisputed amount owed on or before its due date.

 

 

4. Ownership and Restrictions.

4.1 RESERVATION. GP or its licensors retain all ownership and intellectual property rights to the Services and the GP Programs and know-how. GP transfers no ownership or intellectual property interest or title to YOU. No licenses will be deemed to have been granted to the GP Programs or GP’s intellectual property rights, except as stated in this Agreement. YOU retain all ownership and intellectual property rights in and to YOUR data, provided that GP may compile statistical information related to the data and performance of the Services, and may make such information publicly available, so long as GP does not disclose YOUR Confidential Information. GP is specifically granted a license to compile, use for its own benefit, or resell merchandising, demographic, consumer, and statistical data obtained from YOUR use of the Services, so long as GP does not disclose YOUR Confidential Information.

 

4.2 FEEDBACK. GP welcomes YOUR feedback and suggestions about the Service. By transmitting any suggestions, information, material or other content (collectively “Feedback”) to GP, YOU represent that such Feedback does not infringe or violate the intellectual property of any third party and YOU grant GP the right to use such Feedback, however GP deems appropriate, royalty free without additional approval or consideration.

 

4.3 PROHIBITIONS. No part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, except as expressly provided in this Agreement. YOU agree to make every reasonable effort to prevent unauthorized third parties from accessing the Service.

 

5. DISCLAIMER OF WARRANTIES. The GP Programs comprise complex and extensive computer instructions and code. While GP endeavors to provide reliable information and services, the Service is provided on an “as is” and “as available” basis, and may include errors, omissions or other inaccuracies. GP makes no representations or warranties about the results that can be achieved from or the suitability, completeness, reliability or accuracy of the Services for any purpose and expressly disclaims all warranties, express or implied, including, without limitation, any warranty of merchantability or fitness for a particular purpose, or non-infringement or any other implied warranty. GP does not guarantee that the Services will be performed error-free or uninterrupted or that GP will correct all Service errors. YOU acknowledge that GP does not control the transfer of data over communications facilities, including the Internet, and that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities. GP is not responsible for any delays, delivery failures or other damage resulting from such problems. To the extent not prohibited by law, GP disclaims any warranties of merchantability, fitness for any particular purpose and non-infringement relating to anything provided under this Agreement.

 

6. LIMITATION OF LIABILITY. In no event will GP be liable for the following types of loss: loss of profits or revenue, loss of business or goodwill, or business interruption, or any indirect, special, or consequential damages arising out of this Agreement, whether based in contract, tort, or any other theory. In no event will GP’s aggregate liability for direct damages exceed or the actual fees paid by YOU to GP under this Agreement during the six (6) month period which shall be, (479.94 four hundred seventy nine dollars and 94/100) prior to any incident under which or in relation to which the liability arises. If you are dissatisfied with the Service, YOUR sole and exclusive remedy will be to discontinue use of the Service and terminate this Agreement in accordance with Section 8.

 

7. INDEMNIFICATION. YOU agree to indemnify, defend and hold harmless GP, its officers, directors, employees, shareholders and agents from and against all actions, claim, damage or liability, including reasonable costs and attorney’s fees, asserted by any third party in connection with, or based upon YOUR use of the Service.

 

8. TERM & TERMINATION. This Agreement takes effect the moment YOU click “I ACCEPT” as set forth below and will continue until terminated as that word is defined in the MAA. This Agreement will terminate automatically and you will not be granted access to the Service if YOU click “I REJECT.” The initial term of this Agreement will be the Term listed on the MAA. The Term will automatically renew for additional successive one (1) year terms at the then-current list price, unless terminated by YOU or GP, as described below.

 

8.1 YOU or GP may terminate this Agreement for any reason upon sixty (60) days’ prior written notice. GP also reserves the right at any time, for any reason, to (a) remove or disable access to all or any portion of the Service; (b) suspend YOUR access to or use of all or any portion of the Service; and (c) immediately terminate this Agreement if you have not complied with the terms of this Agreement. Upon termination of this Agreement for any reason, YOUR rights to use the Service will immediately terminate and YOU must immediately discontinue any use of the Service and destroy all copies of any aspect of the Service in YOUR possession. Termination will not relieve YOU of the obligation to pay any fees accrued or payable to GP prior to the effective date of termination.

 

8.2 Pre-paid subscription fees are non-refundable if YOU terminate this Agreement for convenience or GP terminates this Agreement because YOU failed to comply with its terms. Although the Services are billed on a monthly basis, the Services are purchased herein for the length of the Term as listed in the MAA and are not refundable. For clarity, there will be no refund of or credit given for any of the fees paid or owed for the Services for the length of the Term for as long as GP is able and willing to provide Services to Customer. In the event of Default on the part of the Customer, the total balance owed herein for the length of the Term shall become due and payable immediately.

 

8.3 The provisions concerning GP’s proprietary rights, feedback, indemnity, disclaimers of warranty, limitations of liability and governing law will survive the termination of this Agreement for any reason.

 

9. CONFIDENTIALITY. Each party agrees to safeguard the Confidential Information of the other party using the same measures it uses to protect its own Confidential Information, but in no event less than reasonable care. “Confidential Information” means information disclosed by either party to the other, whether orally, electronically or in writing, which is designated as confidential or would reasonably be considered to be confidential under the circumstances by a reasonable person. GP’s “Confidential Information” will include, but not be limited to, documentation, technology and technical information, product designs and business processes. Each party agrees to use Confidential Information solely to perform obligations and exercise rights under this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party without the other’s prior written consent except as specifically agreed to herein. Notwithstanding the foregoing, neither party bears responsibility for safeguarding information that is publicly available without breach of an obligation owed to the disclosing party hereunder, obtained from third parties not under confidentiality restrictions, independently developed or known to the recipient without breach of an obligation owed to the disclosing party, or required to be disclosed by order of court or other governmental entity. As used herein, Confidential Information does not include merchandising, statistical, consumer, or demographic data obtained by GP through YOUR use of the Services. If either party breaches, or threatens to breach the provisions of this Section 9, each party agrees that the non-breaching party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief.

 

10. GOVERNING LAW. This Agreement, and any and all claims arising under or in connection with the Agreement or related to any matter which is the subject of the agreement shall be governed by the laws of the State of Alabama, USA, and shall be subject to the exclusive jurisdiction of the federal and/or state courts located in Birmingham, Alabama. YOU also agree to waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. Any claim you might have against GP must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred.

 

11. PRIVACY POLICY. YOU understand, acknowledge and agree that the operation of the Service requires the submission, use and dissemination of personally identifiable information. Accordingly, YOU agree that YOUR use of the Service will constitute an acceptance of GP’s personal identifying information collection and use practices. Please see GP’s Privacy Policy for a summary of GP’s personal identifying information collection use and practices.

 

12. MISCELLANEOUS. This Agreement is personal to YOU and YOU may not assign YOUR rights or obligations to any other person or entity without GP’s prior written consent. No joint venture, partnership, employment or agency relationship exists between YOU and GP as a result of this Agreement or YOUR utilization of the Service. This Agreement, and the GP Privacy Policy represent the entire agreement between YOU and GP with respect to the Service and it supersedes all prior to contemporaneous communications and proposals between YOU and GP with respect to the Service.

 

 

 

BY ACTIVATING THE FUEL SYSTEM APP SERVICE YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD THE FOREGOING AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS AND REPRESENT THAT YOU ARE AT LEAST 19 YEARS OF AGE AND THAT YOU WILL AT ALL TIMES PROVIDE TRUE AND ACCURATE INFORMATION WHEN SUBMITTING INFORMATION UNDER THIS AGREEMENT.

Gas Pos

1-800-209-1241

419 Main Street

Suite 200
North Little Rock, AR 72114
USA

©2019 by Gas Pos, Inc.