Terms of Service

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.

• AGREE: BY USING THE SERVICE OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER IS AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF ITS EMPLOYER, THEN CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON ITS EMPLOYER’S BEHALF.
• CANCEL: IF CUSTOMER DOES NOT WANT TO AGREE TO THIS AGREEMENT CLICK “REJECT,” BUT THEN CUSTOMER CANNOT USE THE SERVICE.

This agreement is between Trcked Up, LLC, a Texas corporation (Trcked Up), and the customer agreeing to these terms (Customer).

1. Software-as-a-service. This agreement provides Customer access to and usage of an Internet based software service as specified on an order and as further outlined at: www.mojopos.com (Service).

2. USE OF SERVICE

i. Customer Owned Data. All data entered by Customer remains the property of Customer, as between Trcked Up and Customer (Customer Data). Customer grants Trcked Up the right to use the Customer Data solely for purposes of performing under this agreement.

ii. Contractor Access and Usage. Customer may allow its contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.

iii. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Trcked Up promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s videos, wiki, and online help files and applicable law.

iv. Trcked Up Support. Trcked Up must provide customer support for the Service under the terms of Trcked Up’s Customer Support Policy (Support) which is located at www.mojopos.com/support, and is incorporated into this agreement for all purposes.

v. Trial. If Customer has registered for a trial use of the Service, Customer may access the Service via the website for the duration specified on the web for evaluation purposes only. The Service is provided AS IS, with no warranty during this time period.  All Customer data will be deleted after the trial period, unless Customer converts its account to a paid Service.

3. SERVICE LEVEL AGREEMENT & WARRANTY.

i. Warranty. Trcked Up warrants to Customer that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding maintenance outages, force majeure, and outages that result from any Customer technology issues). 

Ii. Limited Remedy.  Customer’s exclusive remedy and Trcked Up’ sole obligation for its failure to meet the warranty above will be for Trcked Up to provide a credit for the applicable month as provided in the chart above (if this agreement is not renewed, then a refund), for the month; provided that Customer notifies Trcked Up of such breach within 30 days of the end of that month.

iii. Price Changes. mojoPOS reserves the right to change subscription prices at any time, without notice. Any changes to subscription prices will take effect immediately unless otherwise stated. 

iv. Disclaimer. Trcked Up disclaims all other warranties, including, without limitation, the implied warranties of merchantability, title and fitness for a particular purpose. While Trcked Up takes reasonable physical, technical and administrative measureS to secure the Service, Trcked Up does not guarantee that the Service cannot be compromised. Customer understands that the Service may not be error free, and use may be interrupted. Trcked Up uses a third party credit card processor, and Trcked Up is not liable for any errors or interruptions of that service.

4. PAYMENT. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.

5. AUTO RENEWAL AND CANCELLATION OF SERVICE

All mojoPOS subscriptions are billed on a recurring basis in arrears and will automatically renew at the end of each billing cycle unless cancelled prior to the renewal date. Customers may cancel their subscription at any time through the secure mojoPOS Portal. Cancellation is a one-click process and must be initiated by the account holder using their login credentials. For your security, cancellations will not be accepted via phone, email, or through third parties. Once cancelled, service will continue through the end of the current billing period, after which no further charges will be applied.

6. MUTUAL CONFIDENTIALITY.

i. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Trcked Up’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and pricing information).

ii. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

iii. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.  The Recipient may disclose Confidential Information to the extent required by law or court order.

7. Trcked Up PROPERTY.

i. Reservation of Rights. The software, workflow processes, user interface, designs, know-how, and other technologies provided by Trcked Up as part of the Service are the proprietary property of Trcked Up and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Trcked Up. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Trcked Up reserves all rights unless expressly granted in this agreement.

ii. Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service; or (vi) access the Service  to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.

iii. Aggregate Data. During and after the term of this agreement, Trcked Up may use non-personally identifiable data and information within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes.

8. TERM and TERMINATION.

i. Term. This agreement continues until all orders have terminated.

ii. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

iii. Return of Customer Data. 30-days after termination, Trcked Up has no obligation to maintain the Customer Data and may destroy it.

iv. Return Trcked Up Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Trcked Up for any unpaid amounts, and destroy or return all property of Trcked Up (however, with respect to any hardware provided by Trcked Up to Customer, Customer must return such hardware to Trcked Up). Upon Trcked Up’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

v. Suspension for Violations of Law. Trcked Up may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law or any term of this agreement. Trcked Up will attempt to contact Customer in advance.

9. LIABILITY LIMIT.

i. Exclusion of indirect Damages. Trcked Up is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits or revenues), even if it knows of the possibility of such damage or loss.

ii. Total limit on Liability. Trcked Up’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 1 month period prior to the event that gave rise to the liability.

9.INDEMNITY.  If any third-party brings a claim against Trcked Up related to Customer’s acts, omissions, data or information within the Service, Customer must defend, indemnify and hold Trcked Up harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.

10. GOVERNING LAW AND FORUM. This agreement is governed by the laws of the State of Texas (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement.  Any suit or legal proceeding must be exclusively brought in the federal or state courts for Harris County, TX, and Customer submits to this personal jurisdiction and venue.  Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

11. OTHER TERMS.

i. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter.  Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing. 

ii. Surcharge and Cash Discount Programs. If Customer provides a Credit Card Surcharge Program or Cash Discount Program, Customer represents and warrants to TRCKED UP that (i) such programs are compliant with all contractual and legal requirements, (ii) Customer is operating such programs in compliance with its credit card processing agreements and all applicable federal, state and local laws and regulations, and (iii) has and will clearly disclose at the point of sale, both in-store and online, all surcharges and discounts and applicable terms in compliance with such programs, all credit card processing agreements and applicable laws and regulations.

iii. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.

iv. Independent Contractors. The parties are independent contractors with respect to each other.

v. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.

vi. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

vii. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.

viii. Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.

ix. Feedback. By submitting ideas, suggestions or feedback to Trcked Up regarding the Service, Customer agrees that such items submitted do not contain confidential or proprietary information; and Customer hereby grants Trcked Up an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.