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Subscription Services Agreement

This agreement is between COMCASH, Inc., a California corporation (​COMCASH​), and the entity or individual agreeing to these terms (​Customer​). It is dated as of the date COMCASH signs below.

  • ERP SOFTWARE SERVICE​ . ​ This agreement provides Customer access to a proprietary web-based ERP software service, with the main functionality hosted by Amazon Web Services:

    COMCASH will provide this functionality through http://admin."Customer's URL".com within a hosted virtual server environment under the terms below
    (​Service​) and through a POS desktop software client that will act as one of the interfaces to the Service.

  • USE OF SERVICES​.
    1. COMCASH Customer Support. ​ COMCASH must provide customer support for the Services under the terms of COMCASH’s Customer Support Policy
      (​CSP​), which is incorporated into this agreement for all purposes.
    2. Employee and Contractor Access and Use. Customer may allow its employees and 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 its employees and contractors compliance with this agreement.
    3. C​ustomer Responsibilities. ​ Customer (i) is solely responsible for Customer Data (defined below) and all activity in its account in the Service, (ii) must use commercially reasonable efforts to prevent unauthorized access to its account in the Service, and notify COMCASH promptly of any such unauthorized access, (iii) may use the Services only in accordance with the Services online documentation and applicable law.
    4. Restrictions​: Customer ​ may not (i) sell, resell, rent or lease the Services, (ii) use the Services to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise 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 Services, or (iv) attempt to gain unauthorized access to the Services or their related systems or networks.
  • PAYMENT TERMS. Customer must pay all fees as specified on the Quote, but if not specified then on receipt of an invoice. Customer is responsible for the payment of all sales, use, VAT and other similar taxes. A deposit for the 1st month of service will be taken on signature of this contract and the regular monthly billing cycle for the services will begin on the sooner of Customer Go Live or 4 weeks from contract signature.
  • SERVICE LEVEL AGREEMENT, REMEDY and DISCLAIMER​.
    1. Services Availability Warranty. ​ COMCASH warrants to Customer, (i) that commercially reasonable efforts will be made to maintain the online availability of the Services for at least 99% of the hours in any given month (excluding scheduled outages (which shall occur between the hours of 12:00 a.m. and 3:00 a.m., Los Angeles time), force majeure, and outages that result from Customer equipment, software or other Customer technology), (ii) the functionality or features of the Services may change but will not materially decrease during a paid term, and (iii) that the CSP may change but will not materially degrade during any paid term.
      Availability Warranty Credit/Refund
      [<99% and ≥95%] =
      [<95% and ≥90%] =
      [<90%] =
      [10%] of monthly fee.
      [20%] of monthly fee.
      [100%] of monthly fee.

      Maximum amount of the credit/refund for any given month is 100% of service fees for that month.

    2. LIMITED REMEDY AND DISCLAIMER. CUSTOMER’S EXCLUSIVE REMEDY AND COMCASH’S SOLE LIABILITY FOR BREACH OF THE WARRANTY IN A
      ​ ( i ) WILL BE FOR COMCASH TO PROVIDE A CREDIT AS PROVIDED IN THE CHART ABOVE (IF THIS AGREEMENT IS NOT RENEWED, THEN A REFUND), FOR THE APPLICABLE MONTH; PROVIDED THAT CUSTOMER NOTIFIES COMCASH OF SUCH BREACH WITHIN 30 DAYS OF THE END OF THAT MONTH.

      COMCASH DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES MAY BE INTERRUPTED OR CONTAIN AN ERROR. COMCASH DOES NOT GUARANTY THAT THE SERVICE CANNOT BE HACKED.

  • MUTUAL CONFIDENTIALITY.
    1. Definition of Confidential Information​. Confidential Information means all confidential 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​). COMCASH’ Confidential Information includes without limitation the Services and Licensed Software and Documentation (defined below), its parts and pricing.
    2. 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 Disclosing Party 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.
    3. 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.
    4. Disclosure Required by Law​. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order. COMCASH will only disclose the limited information required to be disclosed by law or the court order.
  • PROPRIETARY RIGHTS​.
    1. Reservation of Rights by COMCASH​. The software, workflow processes, user interface, designs, know-how, Licensed Software and Documentation, and other technologies provided by COMCASH as part of the Services are the proprietary property of COMCASH and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with COMCASH. COMCASH reserves all rights unless expressly granted in this agreement.
    2. C​ustomer ​ Restrictions. Customer ​may not:
      1. Use the Services or the Licensed Software and Documentation beyond its internal operations;
      2. Reverse engineer the Services or the Licensed Documentation;
      3. Remove or modify any proprietary marking or restrictive legends in the Service or Licensed Software and Documentation; or
      4. Access the Service or use the Licensed Software and Documentation to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
    3. Customer Owned Data. All data uploaded by Customer remains the sole property of Customer, as between COMCASH and Customer
      (​Customer Data​), subject to the other terms of this agreement. Customer grants COMCASH the right to use the Customer Data for purposes of performing under this agreement. Customer grants COMCASH the royalty-free right to use non-identifiable transaction level Customer Data for purposes falling outside this agreement.
    4. Upon request, COMCASH will provide a downloadable SQL backup containing all the Customer’s data. The Customer may at any time export their Products, Vendors, Customers, and Sales Transactions directly using the Export tools available in the System.
    5. Licensed Software and Documentation. All online documentation, training material and other documentation and material provided through the Services and by COMCASH, are licensed (and not sold) to Customer as follows: COMCASH grants Customer a non-exclusive, license during the Term (defined below) to such items for use solely with the Services, with the right to make additional copies as necessary for such duration and purpose
      (​Licensed Software and Documentation​).
  • EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
    1. Exclusion of Certain Damages​. COMCASH 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 OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICES OR CONSULTING SERVICES).
    2. Limitation of Liability​. COMCASH’S LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING 12 MONTHS UNDER THIS AGREEMENT.
  • TERM, TERMINATION, SUSPENSION OF SERVICE AND RETURN OF DATA.
    1. Term​. This agreement shall remain in effect and renew automatically on a month to month basis (​Term​). Notwithstanding the foregoing, this agreement may be terminated at any time by the Customer upon not less than 30 days prior written notice to Comcash and Comcash may terminate the agreement at any time with not less that 120 days written notice to Customer.
    2. Mutual Termination for Material Breach​. ​ If either party is in breach of any material term of this agreement, the non-breaching party may terminate this agreement upon 30 days written notice to the breaching party if such breach has not been cured during such 30-day period.
      1. Actions upon Termination for Material Breach​.

        (w) Upon any termination as provided in Section 8(a) or 8(b) above by Customer, ​ COMCASH must refund any prepaid and unused fees covering the remainder of the Term, and the Services will be terminated as of the effective date of such termination.

        (x) Upon any termination as provided in Section 8(a) or 8(b) above by COMCASH, Customer must pay any unpaid fees covering the remainder of the Term, and the Services will be terminated as of the effective date of such termination.

    3. Upon Termination or Expiration (for any reason)​. ​ Upon termination or expiration of this agreement (for any reason), Customer must destroy or return all Software and Licensed Documentation and all other property of COMCASH. Customer will confirm its compliance with this requirement in writing upon request of COMCASH.
    4. Return of Customer Data​.
      1. Within 30-days after termination, ​ upon request COMCASH will make the Customer Data available for no charge, in the format specified in Section 6(d).
      2. After such 30-day period, ​ COMCASH has no obligation to maintain the Customer Data and may destroy it.
  • GOVERNING LAW​. ​ This agreement is governed by the State of California laws, without regard to conflict of laws principles. Any dispute arising out of or related to this agreement must be brought in the state and federal courts for Orange County, California. Customer consents to the personal jurisdiction of such courts and waives any claim that it is an inconvenient forum. The prevailing party in litigation is entitled to recover its attorney’s’ fees and costs from the other party.
  • INDEMNITY​.
    1. By COMCASH​. If a third-party claims that Customer’s use of the Services (other than related to the Customer Data) infringes that party's patent, copyright or other proprietary right, COMCASH must defend Customer against that claim at COMCASH’ expense and pay all costs, damages, and attorney's fees, that a court finally awards or that are included in a settlement approved by COMCASH, provided that Customer:
      1. promptly notifies COMCASH in writing of the claim; and
      2. allows COMCASH to control, and cooperates with COMCASH in, the defense and any related settlement.

      If such a claim is made, COMCASH could continue to enable Customer to use the Services or to modify it. If COMCASH determines that these alternatives are not reasonably available, COMCASH may terminate the Services (without any liability to Customer) upon notice to Customer and with the return of any prepaid and unused fees.

    2. By Customer​. If a third-party claims that the Customer Data infringes or violates a right of that third-party, Customer must defend COMCASH against that claim at Customer’s expense and pay all costs, damages, and attorney's fees, that a court finally awards or that are included in a settlement approved by Customer, provided that COMCASH:
      1. promptly notifies Customer in writing of the claim; and
      2. allows Customer to control, and cooperates with Customer in, the defense and any related settlement.
  • MISCELLANEOUS OTHER TERMS​.
    1. 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.
    2. Entire Agreement and Changes​. This agreement and the order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. No modification or waiver of any term of this agreement is effective unless both parties sign it.
    3. 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 as part of a merger, or sale of all or substantially all of the business or assets, of a party.
    4. Independent Contractors​. The parties are independent contractors with respect to each other.
    5. Enforceability​. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
    6. No Additional Terms​. COMCASH rejects additional or conflicting terms of any Customer form-purchasing document.
    7. Survival of Terms​. Any terms that by their nature survive termination or expiration of this agreement, will survive.
    8. CISG Not Apply​. The Convention on Contracts for the International Sale of Goods does not apply.