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 SuperThursday Pty Ltd an Australian Company with ACN 648-535-326 (“Thursday”) and the entity designated by the registration data provided herewith (“Licensee”) and applies to Licensee’s use of software downloaded from Thursday and Licensee’s use of services provided by Thursday (“Thursday Services”).
READ THIS LICENSE CAREFULLY BEFORE LOADING ANY SOFTWARE FROM Thursday OR USING THE Thursday SOFTWARE OR Thursday SERVICES. BY LOADING THE Thursday SOFTWARE OR USING THE Thursday SERVICES, LICENSEE ACCEPTS AND AGREES TO BECOME BOUND BY THE TERMS OF THIS LICENSE.
Thursday RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT BY PROVIDING NOTICE OF CHANGES ON THE Thursday WEBSITE. LICENSEE AGREES TO INSPECT THE Thursday WEBSITE PERIODICALLY TO STAY INFORMED ABOUT SUCH CHANGES. LICENSEE AGREES THAT LICENSEE’S CONTINUED USE OF THE Thursday SERVICE AFTER SUCH CHANGES ARE ANNOUNCED CONSTITUTES ACCEPTANCE OF SUCH CHANGES.
Thursday shall retain the ownership of the provided copy of Thursday software, and the documentation provided in addition to that (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.
Subject to the terms hereunder, Thursday 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 Thursday 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 Thursday can license such the Third Party Rights.
Free Account License
A free account includes access to one Thursday Register and Thursday BackOffice license for one location. Thursday, at its sole discretion, may remove access, cancel or terminate your free account at any time for any reason. Reasons for such termination include, but are not limited to, accounts experiencing a period of inactivity or exceeding the usage and sales limits contingent with a free account. Thursday also reserves the right to contact you at any time regarding your free account and your options to upgrade to a paid software plan.
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 Thursday 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 Thursday’s prior written approval, (e) resell, rent or otherwise provide access to the Thursday services to a third party or (f) take any action in an attempt to obtain any other Thursday user’s data, cause malfunction, crash, tamper with or otherwise impair the Thursday website and related applications, and their services. Any rights not expressly granted hereunder are reserved by Thursday.
No rights in the Licensed Software or Thursday 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.
Licensee agrees to timely pay the monthly fee set out in the order form, otherwise agreed by written agreement. Licensee agrees to the Billing Policy, incorporated herein, and located. Failure to comply with or otherwise pay fees due is a material breach of this agreement.
End Customer Personal Information
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 Thursday 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 Thursday IN RELATION TO THIRD PARTY RIGHTS. ANY USE OF THE LICENSED SOFTWARE AND Thursday SERVICES IS AT LICENSEE’S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL Thursday OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS (“Thursday 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 Thursday SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, Thursday 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 Thursday 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. Thursday MAKES NO WARRANTY OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE LICENSED SOFTWARE OR Thursday SERVICES FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DUE TO THE HIGH DEGREE OF VARIANCE IN SALES TAX COLLECTION, CALCULATION, AND REPORTING REQUIREMENTS FROM STATE TO STATE, Thursday MAKES NO GUARANTEE THAT THE EXPECTED SALES TAX DUE AMOUNTS IN REPORTS WILL BE THE SAME AS THOSE CALCULATED BY THE LICENSEE’S TAX AUTHORITIES. Thursday PROVIDES AN ESTIMATE OF THE EXPECTED SALES TAX DUE SOLELY FOR THE CONVENIENCE OF THE LICENSEE.
GIVEN THAT LICENSEE IS IN A BETTER POSITION THAN Thursday 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 Thursday SERVICES AND THAT Thursday CANNOT ADEQUATELY ENSURE ITS POTENTIAL LIABILITY TO LICENSEE, LICENSEE ACKNOWLEDGES AND AGREES THAT THE EXCLUSIONS AND LIMITATIONS CONTAINED HEREIN ARE REASONABLE. TO THE EXTENT THAT THE preceding LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNREASONABLE, Thursday’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 Thursday 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 unless you have agreed to a more extended purchase commitment period. Thursday, 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 Thursday Services for any reason at any time. Licensee’s duties to (i) pay amounts due and payable, (ii) refrain from any reverse engineering or other act in violation of this agreement or (iii) indemnify Thursday, and the Thursday 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 Thursday shall terminate the Licensee’s access to their Thursday account, the account itself and the data residing therein.
LICENSEE MUST EXPORT THEIR ACCOUNT DATA BEFORE TERMINATION OF THE Thursday SERVICE. Thursday SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION. In addition, Thursday reserves the right and Licensee acknowledges such right for Thursday to terminate service of Licensee’s account on 30 days’ notice if Thursday 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 Thursday Services and its processes are the confidential information of Thursday and decides not to disclose such software or such maintenance 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 Thursday shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond.
From time to time, Thursday will have Beta Software Programs (“Beta Program”) to make pre-release software, pre-release services, and related documentation, materials, and information (collectively, the “Pre-Release Software”) available to Beta Program participants for the purpose of providing Thursday with feedback on the quality and usability of the Pre-Release Software. The participants in a Beta Programs’ confidentiality obligations include, but are not limited to (a) the Beta Product (b) Thursday development or marketing plans that you learn about as part of your participation as a tester, (c) your participation in the Beta Program (d) verbal or written communications from Thursday employees, agents, contractors or other representatives regarding Thursday Materials and the Beta Product.
Credit Card Processing Terms And Conditions
If Licensee has selected that credit card transaction processing will be provided automatically with the Thursday services, Licensee agrees to the following contractual provisions:
Licensee hereby authorizes Thursday to bind Licensee to the end-user license agreement proffered by its payment gateway provider(s) to establish Licensee as a customer of its payment gateway provider(s).
The licensee shall be responsible for the operation and connection of their point of sale equipment with the payment gateway provider(s)’s systems and services.
The licensee is liable for all fees charged to Thursday by its payment gateway provider(s) for Licensee’s use of the payment gateway provider(s)’s systems and services
Licensee shall: (i) make reasonable efforts to secure any credit card transaction data residing on the equipment owned, controlled or operated by Licensee from intrusion or unauthorized access, (ii) comply with all state and federal laws governing the disclosure and use of retail customer information, (iii) not use, disclose, store, sell or disseminate any credit/debit card-holder information obtained in a credit/debit card transaction processed through Thursday or its payment gateway provider(s), including but not limited to storing private cardholder credit/debit card information such as card numbers, expiration dates and CVV numbers, outside of the payment gateway, except as permitted by the card-holder, (iv) comply with the requirements of any debit/credit card or other payment brand rules, including those related to data security and customer data.
Licensee agrees that neither Thursday nor its payment gateway provider(s) shall 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.
Licensee agrees to immediately notify Thursday in the event of any security breach of Licensee’s systems or unauthorized access to Licensee’s transaction data.
YOU HEREBY INDEMNIFY AND AGREE TO HOLD Thursday HARMLESS FROM ANY CLAIM, (INCLUDING ANY ASSOCIATED DAMAGES, COSTS AND REASONABLE ATTORNEYS FEES INCURRED BY Thursday OR ITS AFFILIATES) BROUGHT AGAINST Thursday 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 Thursday, NOR ANY Thursday 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 Thursday IS NOT RESPONSIBLE FOR ITS PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS AND THAT NO WARRANTY FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED, ARISES ON THE PART OF Thursday. LICENSEE AGREES THAT LICENSEE’S SOLE RECOURSE IN THE EVENT OF ANY CLAIM IS AGAINST ITS PAYMENT GATEWAY PROVIDER(S) AND LICENSEE HEREBY IRREVOCABLY RELEASES AND WAIVES ANY CLAIM IT HAS OR MAY HAVE, WHETHER OR NOT INCHOATE, AGAINST Thursday AND THE Thursday PARTIES ARISING FROM USE OF ITS PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS.
Thursday reserves the right to amend these Terms and Conditions at any time in Thursday’s sole discretion.
The Licensee represents and warrants that it has the due right and power to enter into this Agreement, coming 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 Thursday is accurate in all respects.
Choice of Law and Forum
This Agreement shall be construed under the laws of Australia, 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 Australia. Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.