The terms and conditions stated below, together with all other documents relating to or constituting every Order placed by Customer with Brilliant POS, are hereby made part of and together constitute the entire agreement between the Customer and Brilliant POS relating to such orders/products.
Payment of Charges
Customer is responsible for payment in full of all charges at the time the Order is placed. By making this purchase and agreeing to the terms and conditions of the sale, Customer hereby agrees to refrain from instituting any chargeback actions or stop payments in association with this purchase. Customer further agrees to rely solely on all the below-listed policies and procedures that have been outlined prior to purchase. Customer also agrees to pay for any and all costs related to shipping, customs, duties, taxes, collections fees, legal fees, and any other costs that are related to or associated with all actions that result in any payment not being completed or received in full by Brilliant POS for any transaction, or in any monthly payment(s) that Customer has agreed to pay in conjunction with this transaction not being received. Customer understands that in the event of any credit card chargeback or any stop payment order related to this transaction in violation of the above agreements, Customer’s account will be put on hold, and no further assistance, support or any credit will be provided by Brilliant POS until the matter is resolved and Brilliant POS receives the payment(s) to which such chargeback/stop payment was applied.
Title/Risk of Loss
Title to any product(s) ordered by Customer from Brilliant POS shall pass to Customer immediately upon Brilliant’s delivery of the product to the common carrier, whether at Brilliant’s dock or at such other location as directed by Customer. Customer assumes all risk of loss, damage, theft or destruction to the product(s) upon Brilliant’s delivery of the product to said common carrier, and any such loss, damage, theft or destruction of the product(s) shall be borne exclusively by the Customer F.O.B. the shipping point.
No such loss, damage, theft or destruction to the product, in whole or in part, shall impair the obligation(s) of the Customer under this agreement, including but not limited to payment, all of which shall continue in full force and effect.
No Refunds or Returns
Brilliant POS will provide no refunds or returns of any kind with respect to any hardware, products and/or systems purchased by Customer from Brilliant POS, regardless of the Customer’s method of payment. Refunds or returns will also not be granted to Customer with respect to any purchase of software, supplies, services, or labor that relate to any hardware, products or systems provided to Customer by Brilliant POS.
Shipping and Order Fulfillment
Orders from Customers will be processed by Brilliant POS within 1-2 business days from the time they are received. Once processed, the shipping method (i.e. speed of delivery) selected by Customer cannot be changed and will apply to the Order as originally submitted. The standard shipping timeframe for a complete system purchased from Brilliant POS is approximately 5-10 business days. If Customer requires an accurate arrival time for the delivery of any system, they are advised to contact Brilliant POS Customer Service prior to completion of their Order. Brilliant POS’ standard method of shipping orders to Customers is via Ground Transportation (est. 3-7 days).
Expedited shipping may also be purchased at the time of sale or prior to completion of the Order. The shipment of any completed product cannot be halted, nor expedited, for the Customer once placed into possession of the designated carrier. Brilliant POS and/or its affiliates will arrange for the shipping, crating and packaging of any order, based on the Customer’s selections. Brilliant POS neither accepts responsibility for the carrier’s performance/delivery, nor shall it be responsible for damages caused to or suffered by any products after they are placed into the possession of the designated carrier. If damage occurs in transit to the Customer, Brilliant POS will aid the Customer in handling the damage claim with the carrier; however, Customer will remain responsible for submitting and completing any such damage claim with the carrier. Inspection for concealed damage will be the sole responsibility of Customer upon receipt of the products/Order. Any and all damages to the products/equipment in the Order must be documented with the carrier before the driver departs Customer’s location, and reported to Brilliant POS immediately. Customer is advised to, and shall be solely responsible for, securing any insurance coverage for the contents of any Order while it is in transit from Brilliant POS to the Customer. If the item is shipped within South Carolina, or if you pick it up at our office in Fort Mill, South Carolina sales tax will be assessed on your Order as required by law.
Customer shall have the opportunity to order additional services, warranties, support, and/or training (collectively, the “Services”) from or through Brilliant POS in conjunction with any Order of products/systems. Certain Services may be sold by Brilliant POS as a distributor or sales agent, rather than as the direct provider of such services (“Third Party Services”). In the event Customer orders any Third Party Services through Brilliant POS, Customer agrees that the third party shall be the party responsible for providing the services to the Customer and, Customer agrees to look solely to that third party for any loss, claims or damages arising from, or related to, the provision of such Third Party Services. Customer hereby releases Brilliant POS and any Affiliates from any and all claims arising from, or relating to, the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by Brilliant POS will be collected solely in the capacity as an independent sales agent and shall not create any obligations to the Customer other than as set forth above.
Customer understands and agrees that Brilliant POS. is not the manufacturer of any of the products purchased by Customer but instead creates a POS system in accordance with Customer’s Order using products created by others. Brilliant POS represents, and Customer agrees, that and the only warranties offered on any Orders placed with Brilliant POS are those of the manufacturer of the equipment ordered, and NOT any offered by Brilliant POS. In purchasing the product, Buyer is relying on the manufacturers’ specifications only and is not relying on any statements, specifications, or photographs representing the products that may be provided by Brilliant POS. BRILLIANT POS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATED TO ANY/ALL PRODUCTS ORDERED BY CUSTOMER AND DELIVERED BY BRILLIANT POS OR ANY OF ITS AFFILIATES. BRILLIANT POS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION: THE CONDITION OF THE PRODUCTS; MERCHANTABILITY OF THE PRODUCTS; THE DESIGN, CAPACITY, MATERIALS, WORKMANSHIP, PERFORMANCE OR SUITABILITY OF THE PRODUCTS; THE PRODUCTS’ FITNESS FOR ANY PARTICULAR PURPOSE; OR ANY WARRANTY OF NON-INFRINGEMENT. This disclaimer is not intended to, nor shall it be deemed to alter or effect the terms of the manufacturer’s warranty, if any.
Governing Law and Jurisdiction
The Agreement shall be construed in accordance with and be governed by the laws of the State of South Carolina, USA, excepting the conflict of law rules, as if this contract were made and to be performed entirely within the State of South Carolina, USA. The parties consent to the exclusive jurisdiction and venue of the Federal Courts sitting in the state of South Carolina, USA, for all claims or actions arising under or relating in any way to this Agreement or the relationship between the parties, whether sounding in contract, tort, or otherwise, and regardless of whether persons or entities who are not party to this Agreement are parties to such action; provided, however, that for any claims or actions for which the Federal Courts sitting in the state of South Carolina would not have subject matter jurisdiction, the parties agree that all such claims or actions shall be brought in the state courts of the State of South Carolina, and hereby consent to the exclusive jurisdiction and venue of the state courts of South Carolina for all such claims or actions whether sounding in contract, tort, or otherwise, and regardless of whether persons or entities who are not party to this Agreement are parties to such action. CUSTOMER and BRILLIANT POS HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN THE PARTIES PURSUANT HERETO. THIS WAIVER EXTENDS TO ALL DISPUTES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, AND OTHER COMMON LAW OR STATUTORY CLAIMS.
Limitation of Liability – Scope of Damages
BRILLIANT POS, LLCAND ITS AFFILIATES SHALL NOT BE RESPONSIBLE TO THE CUSTOMER OR ITS AFFILIATES FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER INCIDENTAL, PUNITIVE OR ECONOMIC DAMAGES (INCLUDING THOSE ASSOCIATED WITH IMPROPER, UNDER-CALCULATED OR UNDER-ACCRUED TAXES OR GOVERNMENT LEVIES), WHETHER ARISING FROM THE CUSTOMER’S USE (OR INABILITY TO USE) OF THE PRODUCTS, AND SERVICES PROVIDED IN CONNECTION HEREWITH, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BRILLIANT POS, LLC SHALL NOT, BY REASON OF THE DISCONTINUATION OR MODIFICATION OF ANY SUPPORT SERVICES OR THE TERMINATION OR NON-RENEWAL OF A MAINTENANCE SERVICES AGREEMENT OR OF THIS AGREEMENT, BE LIABLE TO THE CUSTOMER FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PROSPECTIVE PROFITS, OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN CONNECTION WITH THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF THE CUSTOMER’S BUSINESS. IN NO EVENT SHALL THE CUSTOMER BE ENTITLED TO RECOVER OR COLLECT ANY DAMAGES IN THE AGGREGATE IN EXCESS OF AN AMOUNT EQUAL TO THE AMOUNT PAID TO BRILLIANT POS IN CONNECTION WITH ANY ORDER, TOGETHER WITH ANY ADDITIONAL FEES PAID BY CUSTOMER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CUSTOMER’S FIRST CLAIM OF ALLEGED DAMAGE, LOSS OR INJURY.
Viruses and Security
Customer acknowledges and agrees that Customer shall have sole and exclusive responsibility to have and maintain in place virus protection software and other electronic security measures for all products, systems and data used in its business, including but not limited to those purchased from Brilliant POS, which security may or should include firewalls, passwords, physical security, and access control policies. If Customer’s systems have persistent connections to the Internet, or transmit credit card or gift card transactions over the Internet, or otherwise have persistent connections to any network where there is potential for unauthorized access, Customer acknowledges that the security and protection of the network and the data and applications on that network, including protections against unauthorized access, is solely and exclusively Customer’s responsibility. Customer understands and agrees that a properly configured firewall is a necessity for each site using a persistent connection to the public Internet or any private network where there is a potential for unauthorized access. Customer acknowledges that, to be effective, virus protection software, system passwords, and other security software require periodic and routine updates, which Customer must obtain from its supplier or the manufacturer, as appropriate.
BRILLIANT POS, LLC REPRESENTS, AND CUSTOMER ACKNOWLEDGES, THAT AFTER THE INITIAL INSTALLATION BY BRILLIANT POS, LLC OF ANY SOFTWARE FOR CUSTOMER, BRILLIANT POS DOES NOT PROVIDE ANY WARRANTY, WHETHER EXPRESS OR IMPLIED, THAT THE SOFTWARE OR CUSTOMER’S DATA WILL REMAIN FREE FROM VIRUSES. CUSTOMER WAIVES ANY CLAIMS HEREUNDER AGAINST BRILLIANT POS, LLC TO THE EXTENT ARISING FROM CUSTOMER’S FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS PROTECTION, OR TO THE EXTENT ARISING AS A RESULT OF A FAILURE OR BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA, OR AS A RESULT OF ANY UNAUTHORIZED ACCESS TO CUSTOMER’S SYSTEMS.
In entering into the Agreement with Brilliant POS for products and/or services, Customer understands and agrees that Brilliant POS intends to designate various Brilliant POS representatives in locations close to the location of particular products to provide requested services to Customer. Brilliant POS reserves the right to change the Brilliant POS representative appointed for any or all products at any time and for any reason. The Parties agree that the services to be performed by any Brilliant POS representative under the Agreement are those of an independent contractor, and nothing herein shall be deemed to constitute any such Brilliant POS representative to be an agent, servant, or employee of Brilliant POS for any purpose whatsoever; nor shall any such Brilliant POS representative have the right or authority to make any warranties or promises or to incur any obligations on behalf of Brilliant POS. Brilliant POS shall also not be liable for the acts or omissions of any Brilliant POS. Pursuant to the terms and conditions as set forth herein, the methods, means, and times employed by Brilliant POS in fulfilling its obligations hereunder shall be at the sole discretion of Brilliant POS. Brilliant POS shall endeavor to respond in a reasonable time to meet the obligations set forth in the Agreement. In no event shall Brilliant POS or its servicing representatives be liable for failure to detect conditions or circumstances requiring repair or replacement of equipment covered by the Agreement.
If this transaction involves an export of items (including, but not limited to, commodities, software or technology) subject to the Export Administration Regulations, then the Parties agree that such items were exported from the United States by Brilliant POS in accordance with the Export Administration Regulations. Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government and Brilliant POS. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers’ warranties for exported Products may vary or may be null and void for Products exported outside the United States.
Right of Refusal
Brilliant POS reserves the right to limit, in its sole and exclusive discretion, quantities ordered by Customer and to reject any Orders, with or without cause.
The Parties agree that these Terms and Conditions, together with any Brilliant POSPurchase Order(s) and Invoice(s) respecting the products ordered by Customer, are the complete and exclusive agreement between Brilliant POS and Customer, and they supersede all prior or contemporaneous proposals, oral or written, understandings, representations, conditions, warranties, and all other communications between Brilliant POSand Customer relating to the subject products. This agreement may not be explained or supplemented by any prior course of dealings or trade by custom or usage, and may only be amended or changed in a writing signed by all Parties.