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Terms of Service

TERMS OF SERVICE

Depending on how you are interacting with AIMS ERP or using products or services that AIMS ERP provides, certain sections of these terms apply to anyone using the AIMS ERP services on behalf of a restaurant or retail store that uses AIMS ERP.

End User License Agreement

THIS END USER LICENSE AGREEMENT (THESE “TERMS OF SERVICE” OR THE “END USER LICENSE AGREEMENT” OR “EULA”) FORMS A BINDING AGREEMENT BETWEEN YOU (“YOU,” “YOUR”) AND AIMS ERP. (“AIMS ERP,” “WE,” “US,” “OUR”) PLEASE READ THESE TERMS OF SERVICE CAREFULLY, BECAUSE BY DOWNLOADING, ACCESSING OR USING THE AIMS ERP APPLICATION (“AIMS ERP APP”), PRODUCTS AND/OR SERVICES (COLLECTIVELY, THE “SERVICES”) YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND AIMS ERP’S PRIVACY POLICY (available at (“PRIVACY POLICY”). IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR AIMS ERP’S PRIVACY POLICY YOU MAY NOT DOWNLOAD, ACCESS OR USE THE SERVICES.

FROM TIME TO TIME WE MAY UPDATE OR MODIFY THESE TERMS OF SERVICE IN OUR DISCRETION, AND WILL POST THE UPDATED TERMS TO (available at WE MAY PROVIDE NOTICE TO YOU OF THE UPDATED TERMS OF SERVICE BY EMAIL, AND/OR AN ON-SCREEN NOTIFICATION THROUGH THE SERVICES. THE UPDATED TERMS OF SERVICE WILL BECOME EFFECTIVE AS OF THE EFFECTIVE DATE INDICATED IN THE TERMS OF SERVICE (“EFFECTIVE DATE”). ANY USE OF THE SERVICES AFTER THE EFFECTIVE DATE MEANS YOU HAVE ACCEPTED THE UPDATED TERMS. YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT YOU DO NOT ACCEPT THE UPDATED TERMS OF SERVICE IS TO CEASE YOUR ACCESS TO AND USE OF THE SERVICES.

1. Use of the Platform

1.1 You may only access and use the Services if you are an authorized employee of a AIMS ERP customer (“Merchant”) that has paid for a software subscription or free package for AIMS ERP Services pursuant to a merchant agreement entered into between AIMS ERP and Merchant (the “Merchant Agreement”). AIMS ERP grants you a limited, revocable, non-exclusive, non-transferable license to access and use the applicable Services during the course of your employment with Merchant, solely and exclusively for Merchant’s internal business purposes.

1.2 You agree to use the Platform only for the management and operation of Merchant’s business pursuant to the terms and conditions of the Merchant Agreement and not directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with AIMS ERP’s provisioning of the Services; (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the AIMS ERP App or otherwise provided or made available to Merchant; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third- party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Services or network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user interface.

2. Ownership of Content, Use of Trademarks

2.1 AIMS ERP owns or has license to all rights, title, interest, copyright and other worldwide intellectual property and trade secret rights in and to the Services (including all derivatives or improvements thereof). You may voluntarily submit suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services (“Feedback”) at any time. You irrevocably assign all right, title, interest and other worldwide intellectual property rights in and to the Feedback to AIMS ERP, Inc., and acknowledge that we are free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by you relating to the Services in our sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by AIMS ERP.

2.2 User Content. You, (or Merchant, if applicable) retain all rights, title and interest in and to any text, graphics, videos, images or other data that you upload to the Services (“User Content”). You grant to AIMS ERP a non-exclusive, royalty-free, fully paid-up, worldwide license to access, use, copy, modify (including the right to create derivative works of), display and transmit User Content solely for the purpose of our providing the Services and in accordance with our Privacy Policy. You are solely responsible for the accuracy, quality, content and legality of User Content, the means by which User Content is acquired, and any transfer of User Content outside of the Services by you, Merchant or any third-party authorized by you. You represent, warrant and covenant that you have all rights necessary to upload the User Content to the Services and to otherwise have such User Content used or shared, as applicable, in relation to the Services.

2.3 Third-Party Content. Through your use of the Services you may be presented with material provided by third-parties, not owned or controlled by us, from our partners, and/or from other users of the Services, including but not limited to software, text, graphics, videos, images, or advertising content (collectively referred to as “Third-Party Content”). All Third-Party Content and the Services are protected by United States and foreign intellectual property laws. Unauthorized use of the Services and/or Third-Party Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Services or Third-Party Content, and you will not use, copy or display the Services or Third-Party Content except as permitted under these Terms of Service. No other use of the Services or Third-Party Content is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the Services and Third-Party Content. You may not sell, transfer, assign, license, sublicense, or modify the Third-Party Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Third-Party Content in any way for any public or commercial purpose other than as permitted hereunder. The use or posting of any of the Third-Party Content on any other platform, or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of these Terms of Service, your right to access and/or use the Third-Party Content and Services will automatically terminate.

2.4 We do not review, pre-screen or filter all User Content, or Third-Party Content, but we do reserve the right to refuse to accept, or delete any User Content or Third-Party Content in our sole discretion. In addition, we have the right (but not the obligation) in our sole discretion to reject or delete any content that we reasonably consider to be in violation of these Terms of Service or applicable law. We do not guarantee the accuracy, integrity or quality of any Third-Party Content, regardless of whether such products or services are designated as “certified,” “validated” or the like. Any interaction or exchange of information or data between you and any third-party is solely between you and such third-party. You should take precautions when downloading files from any platform to protect your computer from viruses and other destructive programs. If you decide to access any Third-Party Content, you fully assume the risk of doing so. Under no circumstances will AIMS ERP be liable in any way for any Third-Party Content, including liability for any errors or omissions in any Third-Party Content or for any loss or damage of any kind incurred as a result of the use of any Third-Party Content posted, emailed or otherwise transmitted via the Services.

2.5 Each user must: (a) provide true, accurate, current and complete information on the AIMS ERP App’s registration form (collectively, the “Registration Data”) and (b) maintain and promptly update the Registration Data as necessary. If, after investigation, we have reasonable grounds to suspect that any user’s information is untrue, inaccurate, not current or incomplete, we may suspend or terminate that user’s account and prohibit any and all current or future use of the Services (or any portion thereof) by that user other than as expressly provided herein. Each user is wholly responsible for maintaining the confidentiality and security of his/her username and password, and is wholly liable for all activities occurring thereunder. AIMS ERP cannot and will not be liable for any loss or damage arising from a user’s failure to comply with this Sub-Section 2.5, including any loss or damage arising from any user’s failure to (a) immediately notify AIMS ERP of any unauthorized use of his or her password or account or any other breach of security, or (b) exit and close his or her account at the end of each session.

2.6 The trademarks, service marks, and logos of AIMS ERP (the “AIMS ERP Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of AIMS ERP. Other AIMS ERP product and service names located in the Services may be trademarks or service marks owned by third-parties (the “Third-Party Trademarks”, and, collectively with the AIMS ERP Trademarks, the “Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in the Services without the prior written consent of AIMS ERP specific for each such use. The Trademarks may not be used to disparage AIMS ERP or the applicable third-party, AIMS ERP’s or third-party’s products or services, or in any manner that may damage any goodwill in the Trademarks. Except as described herein, the use of any Trademarks is prohibited without AIMS ERP’s prior written consent. All goodwill generated from the use of any AIMS ERP Trademark or Third-Party Trademark will inure to AIMS ERP’s, or the applicable Third Party’s benefit, as applicable.

3. Privacy

AIMS ERP’s Privacy Policy describes what information we collect from you and other users of the Services, and how we use User Content and other information obtained through the Services. We encourage you to read the Privacy Policy carefully as it forms a binding part of these Terms of Service, and contains important information about your rights.

4. Limitation of Liability and Disclaimer of Warranties

4.1 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, AIMS ERP AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT AND QUALITY. AIMS ERP AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AIMS ERP AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER AIMS ERP NOR ITS THIRD- PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. AIMS ERP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, AIMS ERP DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY AIMS ERP, THE SERVICES ARE PROVIDED TO MERCHANT ON AN “AS IS” BASIS.

4.2 IN NO EVENT WILL AIMS ERP BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM OR IN CONNECTION WITH THE USE OR INABILITY TO USE TH. E SERVICES, EVEN IF AIMS ERP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW AIMS ERP’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO FIFTY DOLLARS ($50).

4.3 Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE AIMS ERP PARTIES WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

5. Indemnification

You agree to defend, indemnify and hold harmless AIMS ERP and its directors, officers, employees, affiliates and agents from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms of Service or your access to, use or misuse of the Third-Party Content or Services. AIMS ERP will provide notice to you of any such claim, suit, or proceeding. AIMS ERP reserves the right to assume the exclusive defence and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting AIMS ERP’s defence of such matter.

6. Termination of the Agreement

6.1 AIMS ERP reserves the right, in its sole discretion, to restrict, suspend, or terminate these Terms of Service and your access to all or any part of the Services or User Content at any time and for any reason without prior notice or liability. AIMS ERP reserves the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.

6.2Sections 1 (Use of the Platform), 4 (Limitation of Liability and Disclaimer of Warranties), 5 (Indemnification), 6 (Termination of Agreement) and 9 (Miscellaneous) will survive the termination of these Terms of Service.

7. Arbitration

7.1 Agreement to Arbitrate. This Section 7 is referred to as the Arbitration Agreement. You agree that any and all disputes or claims that have arisen or may arise between you and AIMS ERP, whether arising out of or relating to these Terms of Service or in connection with your use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. You agree that, by agreeing to these Terms of Service, you and AIMS ERP are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate, provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.

7.2 Prohibition of Class and Representative Actions and Non-Individualized Relief. You and AIMS ERP agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both you and AIMS ERP agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favour of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).

7.3 Pre-Arbitration Dispute Resolution. AIMS ERP is always interested in resolving disputes amicably and efficiently, and most participant concerns can be resolved quickly and to the participant’s satisfaction by emailing AIMS ERP’s support team at support@aimerp.net. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to AIMS ERP should be sent to AIMS ERP at M2-1082, Sydney Road, Fawkner, Victoria, AUS 3060, Attn: General Counsel. (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If you and AIMS ERP do not resolve the claim within ninety (90) calendar days after the Notice is received, you or AIMS ERP may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by AIMS ERP or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or AIMS ERP is entitled.

7.4 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

8. Miscellaneous

Any action, claim, or dispute related to these Terms of Service will be governed by the laws of the Commonwealth of Massachusetts, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to these Terms of Service. If any provision of these Terms of Service Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms of Service, which will remain in full force and effect. Failure of AIMS ERP to act on or enforce any provision of these Terms of Service will not be construed as a waiver of that provision or any other provision herein. No waiver will be effective against AIMS ERP unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by AIMS ERP and you, these Terms of Service constitute the entire agreement between you and AIMS ERP with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between you and AIMS ERP with respect to the subject matter. The section headings are provided merely for convenience and will not be given any legal import. These Terms of Service will inure to the benefit of our successors and assigns. You may not assign these Terms of Service without our prior written consent. Any information submitted or provided by you to the Services might be publicly accessible. Important and private information should be protected by you.

9. Google-Enabled Software Applications

As part of the Services, AIMS ERP may offer mobile applications that are intended to be operated in connection with products made commercially available by third parties that operate using the Android operating system, which is owned by Google Inc. (“Google”, and such software, “Google Software”).