Lightspeed Service Agreement

During the Term and in accordance with this Agreement, Customer may access and use the products offered by Lightspeed (each a “Product”), which Customer subscribed to, whether by subscription, free trial or promotion, as referenced in the order form, invoice, executed quote, or, for certain self-serve products, via confirmation email from Lightspeed (the “Order Form”). Each Product may include updates, cloud-based and support services, applications or documentation. Each Product is subject to the terms of this Agreement as applicable. Customer is responsible for all actions taken under its Lightspeed account credentials, regardless of whether such actions are taken by (i) Customer or its officers, employees, or agents, (ii) a third party, or (iii) Lightspeed upon Customer’s request. Customer will safeguard all account credentials (including any passwords and payment method details) in its possession or under its control. Lightspeed is not liable for any loss or damage arising from any unauthorized use of Customer’s account.

During the Term, Lightspeed grants Customer a limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use, and to permit its employees and all other individuals who access and use the Products on Customer’s behalf (collectively, the “Users”) to access and use, the Products to which Customer has subscribed, on the terms set forth in this Agreement. Customer agrees that all rights, title and interest in and to all the intellectual property rights in the Products, and all modifications, extensions, scripts and other derivative works of the Products provided or developed by Lightspeed, including the Beta Technology, are owned exclusively by Lightspeed or its licensors. All rights not granted to Customer in this Agreement are reserved by Lightspeed.

Customer and any Users shall not (and shall not allow any User or third party to): (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Products, by any means whatsoever; (ii) distribute viruses or other harmful or malicious computer code via or into the Products; (iii) engage in any conduct that disrupts or impedes a third party’s use and enjoyment of the Products; (iv) remove any product identification, copyright or other notices from the Products; (v) sell, lease, lend, assign, sublicense, grant access or otherwise transfer or disclose the Products in whole or in part, to any third party; (vi) use the Products for timesharing, service bureau or hosting purposes or otherwise use, resell, sublicense, distribute or transfer or allow others to use the Products to or for the benefit of third parties; (vii) modify or incorporate into or with other software or create a derivative work of any part of the Products, unless agreed to in writing by Lightspeed; (viii) use the output or other information generated by the Products for any purpose other than as contemplated by this Agreement; (ix) use the Products for any use other than Customer’s internal business use; (x) use unauthorized modified versions of the Products, including without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Product; (xi) use the Products in any way that is contrary to Lightspeed’s Acceptable Use Policy, located at https://www.lightspeedhq.com/legal/acceptable-use-policy/, as such policy may change from time to time (the “Acceptable Use Policy”); (xii) attempt to make identifiable any de-identified data derived from the Products or  provided by Lightspeed; or (xiii) use the Products in any way that is contrary to applicable local, state/provincial, federal, regional and foreign laws, including without limitation those relating to fiscal laws and VAT regulations, as well as privacy, data protection, electronic communications and anti-spam legislation. Lightspeed retains all title to, and except as expressly licensed herein, all rights to the Products, all copies, derivatives and improvements thereof, and all related materials.

4.1.  Unless otherwise agreed to in writing, the “Initial Term” shall mean the duration identified in the Order Form, beginning on the date identified in the Order Form (the “Subscription Start Date”). If the Subscription Start Date is not explicitly nor implicitly identified in the Order Form, the Subscription Start Date shall be the date Customer executes, where applicable, the initial Order Form, unless otherwise agreed to in writing. Some software Products may be made available to Customer on a date prior to the Subscription Start Date identified in the Order Form. If Customer uses such software Products to process taxable business transactions before such identified Subscription Start Date, then the Subscription Start Date will thereby be amended to such earlier date.

4.2. Upon expiration of the Initial Term and unless otherwise stated in the Order Form or herein, this Agreement will automatically renew for a duration equal to the Initial Term (each a “Renewal Term”, the “Current Term” being the Initial Term or the then-current Renewal Term (as the case may be); and the Initial Term and all Renewal Terms collectively, the “Term”) until terminated by Customer or Lightspeed by delivery of written notice to the other party at least (i) where the Current Term is more than ninety (90) days, ninety (90) days prior to the end of the Current Term; or (ii) where the Current Term is less than ninety (90) days, such period of notice equal to the Current Term. The preceding sentence shall only apply to the extent permissible by applicable law. If no Order Form has been provided, the minimum period of notice required to be given shall be thirty (30) days. In the case of Products licensed on a trial basis, the Term of this Agreement shall be limited to the duration of the trial period identified in the Order Form. Except as otherwise specified herein, Customer may not terminate this Agreement prior to the expiration of the Term. If Customer is located in the Province of Quebec, Customer expressly waives the application of Sections 2125 and 2129 of the Civil Code of Quebec.

5.1. Customer shall pay Lightspeed the fees (“Fees”) specified in the Order Form or otherwise arising under this Agreement, in accordance with the timing and currency specified in the Order Form or this Agreement. Fees shall include, but are not limited to, applicable fees relating to Customer’s use of a payment provider other than Lightspeed Payments. If no Order Form has been provided, the Fees will be as set out on the websites for the relevant Products. Unless required by applicable law, all payments by Customer to Lightspeed under this Agreement are non-refundable and made via the payment method specified by Customer in the Order Form, or as otherwise agreed in writing by the parties. Customer shall undertake any additional actions reasonably requested by Lightspeed to implement any automated Fee payment process. Customer will be billed by the applicable Lightspeed entity in accordance with applicable tax and accounting rules. Any amounts past due shall accrue interest at a rate which is the lesser of: one and a half percent (1.5%) per month or the maximum rate allowable by law. Any assessment of late fees shall be without prejudice to Lightspeed’s right to suspend Customer’s access to the Products. In the event that Fees are outstanding or were paid by Customer past due, Lightspeed may require Customer to revise the payment method specified in its Order Form or as otherwise agreed to between the parties. Any applicable goods and services or sales taxes will be added to Fees owing pursuant to this Agreement. If Customer is based in Germany, Customer hereby expressly provides its consent to accept any invoices in the format issued by Lightspeed and Customer expressly agrees to not request an e-invoice.

5.2. Customer acknowledges and agrees that by executing an Order Form, Customer is obligated to pay all of the Fees identified in (i) the Order Form or website (as applicable), and (ii) this Agreement, for the duration of the Current Term, and that any software subscription discounts or hardware discounts offered to Customer and/or identified on the Order Form are contingent upon the foregoing. Similarly, Customer acknowledges and agrees that, by renewing their subscription, whether implicitly or explicitly, Customer is obligated to pay all of the Fees due under the renewed contract at the then-current prices for the duration of the Renewal Term. Customer further acknowledges and agrees that any discounts offered under the initial Order Form shall not carry over or pertain to the Renewal Term, unless otherwise agreed to in writing.

5.3. Lightspeed Payments. Provided Customer (i) uses the Products (ii) is located in a jurisdiction in which Lightspeed Payments is offered and (iii) is eligible for Lightspeed Payments, Customer must use Lightspeed Payments unless otherwise agreed to by Lightspeed in writing.

5.4. Transaction Fees. If Customer falls within (i), (ii) and (iii) of Section 5.3 above and processes transactions through a payment processing service other than Lightspeed Payments, Customer will be charged a monthly Fee for each month in which Customer processes transactions through such service, which fee shall be calculated based on Customer’s estimated average monthly transaction volume in accordance with Fee table linked here (“Transaction Fee”). For Customers with an annual subscription, this monthly Fee will be assessed upon renewal.

Lightspeed and Customer (each a “Receiving Party”) shall each retain in confidence all information received from the other party (the “Disclosing Party”) pursuant to or in connection with this Agreement, the Products or the Beta Technology, that the Disclosing Party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under this Agreement. Each party shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its legal and financial consultants as required in the ordinary course of that party’s business. Notwithstanding the foregoing, the restrictions set forth above will not apply to (i) information previously known to the Receiving Party without reference to the Disclosing Party’s Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the Receiving Party, (iii) information that is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, or (iv) information required to be disclosed pursuant to applicable law by enforceable orders of the court or other governmental authority. Customer shall ensure that its Users fully comply with the terms of this Section and shall be responsible for any damages suffered by Lightspeed as a result of a User’s failure to do so.

Customer represents and warrants that currently and throughout the Term that:

(i) Customer has the right, power, and authority to enter into the Agreement. If Customer is an individual, Customer confirms that they are legally capable of entering into contracts. If Customer is an entity, organization, or company, then Customer confirms that the individual agreeing to this Agreement is fully authorized to enter into this Agreement on behalf of Customer;

(ii) Customer and any Users are fully authorized to utilize the Products to which Customer has subscribed;

(iii) Customer and any Users are and will remain in compliance with all Lightspeed policies, applicable laws and regulations with respect to its and their use of the Products and activities related to this Agreement, including but not limited to fiscal and privacy laws; and

(iv) if Customer or any of its Users imports lists into the Products for the purpose of sending electronic communication (e.g., email, text messages), or otherwise collects electronic addresses for the purpose of sending electronic messages, then Customer warrants that each person on such list has previously opted-in to receive promotional electronic communications from Customer (where applicable) and that the content of such communications by Customer will comply with applicable laws and regulations.

8.1. “Customer Content” means photos, images, graphics, written content, audio, files, materials, information, or any other data that Customer or its Users input into the Products for processing in connection with this Agreement.

8.2. Customer retains all right, title, and interest in the Customer Content. Customer grants Lightspeed a worldwide, royalty-free, sublicensable, transferable, and non-exclusive license to use, access, copy, reproduce, modify, create derivative works of, publish, communicate, transmit, translate, display, and/or otherwise exploit the Customer Content for the purpose of providing, operating, promoting, or improving the Products, including but not limited to creating benchmarking insights, market trend analysis, and recommendations using aggregate and de-identified Customer Content.

8.3. Customer may select the personal information (“Personal Data”) it inputs into the Products at its sole discretion; Lightspeed has no control over the nature, scope, origin, and/or the means by which Customer acquires Personal Data processed by the Products. Lightspeed will comply, and will ensure that its personnel comply, with the requirements of applicable privacy laws and regulations governing the Personal Data in Lightspeed’s possession or under its control. Customer is solely responsible for ensuring that it complies with any legal, regulatory or similar restrictions applicable to the types of data Customer elects to process with the Products. Customer remains responsible for properly handling and processing notices regarding Personal Data of Customer’s clients and Users.

8.4. The Products grant Customer the ability to independently backup and archive Customer Content. Accordingly, Customer is responsible for performing regular backups of Customer Content. Nevertheless, Lightspeed will regularly perform backups of Customer Content stored in the Products. Lightspeed will assist Customer in recovering and restoring Customer Content to the Products to the extent commercially feasible. Customer understands and agrees that Lightspeed is not responsible for any loss or corruption of Customer Content or other software.

8.5. Lightspeed uses and protects Personal Data in accordance with Lightspeed’s Privacy Policy, located at https://www.lightspeedhq.com/legal/privacy-policy/ (the “Privacy Policy”) and the Data Processing Agreement located at https://www.lightspeedhq.com/legal/data-processing-agreement/ (the “DPA”).

8.6. It is the policy of Lightspeed to respect the intellectual property rights of others. Lightspeed does not condone the unauthorized reproduction or distribution of third-party intellectual property. If a Customer or visitor believes that their work has been reproduced or distributed in a way that constitutes intellectual property infringement or are aware of any infringing material available through the Products, they may have recourse under Lightspeed’s Intellectual Property Infringement Policy, located at https://www.lightspeedhq.com/legal/intellectual-property-infringement-policy/ (the “Infringement Policy”). 

8.7. The Privacy Policy, the DPA, the Acceptable Use Policy and the Infringement Policy are incorporated into this Agreement by reference.

Customer agrees that any materials that it or any User provides to Lightspeed, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, modifications, improvements, original or creative materials or other information regarding Lightspeed or the Products or the Beta Technology, whether such materials are provided in email, feedback forms, or any other format (the “Feedback”), shall belong exclusively to Lightspeed, without any requirement to acknowledge or compensate any User or Customer. Customer agrees to assign, and hereby assigns, all right, title, and interest worldwide in the Feedback and the related intellectual property rights to Lightspeed and agrees to assist Lightspeed, at Lightspeed’s expense, in perfecting and enforcing such rights. Lightspeed may disclose or use Feedback for any purposes whatsoever without any obligation to any User or Customer.

10.1. For evaluation and testing purposes only (“Beta Testing Project”), Lightspeed may grant Customer a personal, non-exclusive, non-transferable, limited license to use certain technology, support services, accessories, and hardware (collectively, the “Beta Technology”). Customer’s participation in a Beta Testing Project is voluntary.

10.2. If Customer agrees to the Beta Testing Project, Customer shall (i) test and evaluate the Beta Technology as requested by Lightspeed, (ii) familiarize itself with the Beta Technology information provided by Lightspeed and to only use or test the Beta Technology as directed, (iii) notify Lightspeed of any and all functional flaws, errors, anomalies, and problems directly or indirectly associated with the Beta Technology known to, or discovered by Customer, (iv) respond to any and all reasonable inquiries, questionnaires, and other test documents submitted by Lightspeed and (v) designate to Lightspeed, in writing, an employee or representative who will serve as the single technical contact and who will be responsible for maintaining communication with Lightspeed. In addition, Customer agrees to bear all incidental costs (such as, costs for Internet and phone services, accessories, etc.) associated with its testing of the Beta Technology, unless otherwise agreed to in writing by both parties. Customer has the obligation to maintain backups of its own data. Customer agrees and acknowledges that, following termination of the Beta Testing Project, Lightspeed shall have no obligation to transfer Customer Content to any other Lightspeed product or service, including with respect to final release of the Beta Technology.

10.3. Lightspeed has no obligation to develop or provide any updates or revisions to the Beta Technology, and Lightspeed reserves the right to alter or adjust service specifications for the Beta Technology as it deems necessary or desirable. Customer understands and acknowledges that Customer will not, unless otherwise agreed to in writing, receive any payment, compensation or discount for participating in, or for providing any Feedback, comments, evaluations, reports or any other services during a Beta Testing Project. Customer shall maintain backups of its own data. Customer agrees and acknowledges that, following termination of the Beta Testing Project, Lightspeed shall have no obligation to transfer Customer Content to any other Lightspeed product or service, including with respect to final release of the Beta Technology.

10.4. The Beta Technology provided by Lightspeed is proprietary to Lightspeed and/or its licensors. Customer agrees and acknowledges that nothing contained in this Agreement shall be construed as granting any ownership or intellectual property rights to any Beta Technology, Feedback or Confidential Information. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the Beta Technology are and will remain in Lightspeed and Customer shall have no such intellectual property rights in the Beta Technology. Customer will not make, have made, use or sell for any purpose any product or item using, incorporating or derived from any Beta Technology or Confidential Information. Customer may not copy or reproduce the Beta Technology or reverse engineer, alter, modify, disassemble or decompile the Beta Technology, or any part thereof, without Lightspeed’s prior written consent.

11.1. “Third-Party Services” are products, applications, services, software, networks, systems, directories, websites, databases and information from third parties, including but not limited to Lightspeed NuORDER Inc., and Lightspeed Payments USA Inc., that one or more Products link to, or which Customer may connect to or enable in conjunction with one or more Products. Customer may decide to enable, access or use any Third-Party Services, or Lightspeed may recommend, provide with access to, or enable on Customer’s behalf certain Third-Party Services for Customer’s use, subject to the terms of this Section 11.1. Customer acknowledges and agrees that by enabling, connecting, accessing, or using any Third-Party Services, Customer gives Lightspeed permission to share Customer Content with the provider of such Third-Party Services. Customer agrees that access and use of such Third-Party Services shall be governed by the terms and conditions of such Third-Party Services, and that Lightspeed is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third-Party Services, including, without limitation, their content or data practices (including with regards to Customer Content and Personal Data) or any interaction between Customer and the provider of such Third-Party Services, regardless of whether or not such Third-Party Services are provided by a third party that is a member of a Lightspeed partner program or otherwise designated by Lightspeed as “certified”, or “approved” by or “integrated” with Lightspeed. Any use by Customer of Third-Party Services shall be between Customer and the applicable third-party provider. Customer irrevocably waives any claim against Lightspeed with respect to such Third-Party Services. Lightspeed is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third-Party Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third-Party Services.

11.2. In the event Customer’s Order Form includes on-site installation and/or remote installation (collectively, the “Implementation Services”), Customer understands that such Implementation Services are fixed rate and inclusive of certain defined services. Lightspeed retains ultimate control in deciding the price of the Implementation Services. With respect to on-site installation, the quoted price is an estimate based on the estimated labor and materials costs required for a technician to complete installation. Additional fees may apply on a case-by-case basis in order to complete the Implementation Services, including, without limitation: (i) additional Hardware (as defined below); (ii) cabling labor; (iii) cabling materials; and (iv) the performance of services which deviate from those items explicitly included within the Implementation Services (e.g. performance of certain non-standard menu builds outside of Customer’s use of the provided menu template) (the “Additional Implementation Fees”). In the event that additional services giving rise to Additional Implementation Fees are required, Lightspeed will provide Customer with a quote on a time and materials basis. It is Customer’s responsibility to ensure all site requirements are met in order to prevent cancellation of Customer’s scheduled Implementation Services. In the event that any Implementation Services are cancelled by Customer for any reason with less than forty-eight (48) hours’ prior written notice, Lightspeed will assess, and Customer agrees to pay, a cancellation fee on a per-cancelled-event.

12.1. It may be necessary for Lightspeed to perform scheduled and/or unscheduled repairs or maintenance, or remotely patch or upgrade the Product. This may temporarily degrade the quality of the services or result in a partial or complete outage of the Product. Lightspeed will endeavor to carry out such work during times that will cause the least disruption to Customer’s business. Customer shall cooperate, if necessary, to perform such work.

12.2. Lightspeed may, at any time and in its sole discretion, add to, remove, change or discontinue the Products or any component or version of the Products (the “Product Changes”), which may require Customer to take certain actions including, but not limited to, installing certain patches, fixes or updates, including to Customer’s own systems, upgrading to a new version of a Product and/or migrating to an alternative Product. Such Changes may be made for reasons including, but not limited to:  (i) to comply with applicable law or regulation, (ii) for security reasons, (iii) due to changes imposed by a third party supplier, and/or (iv) due to the termination of our relationship with a third party supplier which is material for the provision of the Products.

13.1. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by giving the breaching party written notice specifying the nature of the breach in reasonable detail and the non-breaching party’s intention to terminate (a “Termination Notice”). If the breach has not been cured within the period ending thirty (30) days following delivery of the Termination Notice, then this Agreement shall automatically terminate.

13.2. Notwithstanding the foregoing, Lightspeed reserves the right, at any time and without notice, to suspend or terminate this Agreement if Customer or any User violates the license restrictions under Section 3 of the Agreement.

13.3. Notwithstanding the foregoing, Lightspeed may suspend or terminate Customer’s access to the Products immediately without notice if Lightspeed, in its sole discretion, believes: (i) such suspension or termination is required by law; (ii) there is a security or privacy risk to Customer; (iii) Customer or any User is infringing or violating the rights of third parties, or acting in a manner that is abusive, profane or offensive; (iv) Customer does not pay its Fees or any invoices in a timely manner; or (v) Customer is in breach of any material provision of this Agreement, including its license restrictions or confidentiality obligations. Any suspension of Customer’s access to the Products will not limit or waive Lightspeed’s rights to terminate this Agreement or Customer’s access to the Products.

13.4. Upon termination of this Agreement, Customer shall discontinue its use of the Product(s). Notwithstanding the foregoing, termination of this Agreement by Lightspeed shall not limit Customer’s obligation to pay all of the applicable Fees, nor restrict Lightspeed from pursuing any available remedies, including injunctive relief. Customer agrees that following termination of Customer’s account and/or use of the Product, Lightspeed may immediately deactivate Customer’s account and delete Customer Content. Customer further agrees that Lightspeed shall not be liable to Customer nor to any third party for any termination of Customer’s access to the Product or deletion of Customer Content in accordance with this Agreement. Sections discussing license restrictions, Fees and payment, confidentiality, Customer representation, indemnification, and limitation of liability shall survive termination of this Agreement, along with any other provisions that are intended by their terms to survive.

13.5. Notwithstanding anything to the contrary in the Agreement, should the Agreement be terminated (a) by Customer prior to completion of the Current Term  for any reason other than breach by Lightspeed under Section 13.1, or (b) by Lightspeed for material breach by Customer under Section 13.1 or 13.2, Customer will be charged an early termination fee calculated as the sum of: (i) any non-recurring Fees relating to the terminated Agreement(s) which have not been paid to Lightspeed as of the effective date of termination; and (ii) any recurring Fees under the Agreement that would have otherwise become due during the remainder of the Current Term; and (iii) the difference between the list price (as indicated on our website), and the discounted price (if any) on either software and/or Hardware (as defined below) that the Customer may have received during or pertaining to the Current Term (collectively, the “Early Termination Fee”). The Customer (i) authorizes Lightspeed to collect the Early Termination Fee, and any applicable taxes due on such fee, according to the same payment methods and/or accounts for collecting amounts under the Agreement, and (ii) acknowledges that the Early Termination Fee shall be immediately due and payable in full. The Parties acknowledge and agree that the Early Termination Fee is a genuine and reasonable pre-estimate of the loss and damage suffered by Lightspeed in the event that the Customer terminates prior to completion of the Current Term and not a penalty.

14.1. Customer shall indemnify, defend and hold harmless Lightspeed and its officers, employees, and agents from and against all losses, expenses, liabilities, damages and costs including, without limitation, reasonable attorneys’ fees (collectively “Costs”), to the extent that such Costs are attributable to any breach by Customer or any User, independent contractor, or affiliate thereof, of any representations, warranties or other obligations set forth in this Agreement.

14.2. Lightspeed shall indemnify, defend and hold harmless Customer and its officers, employees, agents and affiliates from and against all Costs, to the extent such Costs are attributable to the Products infringing or misappropriating any registered third-party intellectual property right, including trademarks, patents and copyrights if Lightspeed is notified promptly in writing and given authority, information, and assistance for the defense or settlement of any related proceeding.

15.1. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, LIGHTSPEED’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE TO SUCH LIABILITY WAS FIRST ASSERTED. IF AND TO THE EXTENT THAT CUSTOMER PARTICIPATES IN A BETA TESTING PROJECT, IN NO EVENT WILL LIGHTSPEED’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THE BETA TESTING PROJECT INCLUDING ANY TRANSACTION PROCESSED THEREIN EXCEED $/£/€/CHF 100.

15.2. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.

15.3. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT AS BETWEEN THEM. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE PRODUCTS AVAILABLE TO CUSTOMER AND THAT, WERE LIGHTSPEED TO ASSUME FURTHER LIABILITY OTHER THAN AS SET FOR HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SIGNIFICANTLY HIGHER.

15.4. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, LIGHTSPEED WILL NOT BE LIABLE OR INDEMNIFY CUSTOMER IN ANY WAY FOR ANY DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM (i) CUSTOMER’S OMISSION TO INSTALL ANY PATCH, FIX, UPDATE OR UPGRADE, (ii)  ANY PRODUCT CHANGES PURSUANT TO SECTION 12.2 AND/OR (iii) CUSTOMER’S ALLEGED OR ACTUAL BREACH OF THIS AGREEMENT.

CUSTOMER ACKNOWLEDGES THAT (i) LIGHTSPEED CANNOT GUARANTEE THE RESULTS GENERATED THROUGH THE PRODUCTS OR THE BETA TECHNOLOGY, OR THAT THE PRODUCTS OR THE BETA TECHNOLOGY WILL BE CONTINUOUSLY AVAILABLE FOR USE WITHOUT INTERRUPTION, (ii) THE PRODUCTS AND THE BETA TECHNOLOGY ARE PROVIDED “AS IS”, ON AN “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, AND LIGHTSPEED HEREBY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY (a) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (INCLUDING, FOR THE AVOIDANCE OF DOUBT, ANY WARRANTY THAT THE PRODUCTS ARE FISCALLY COMPLIANT WITHIN CUSTOMER’S JURISDICTION), (b) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, (c) WARRANTY OF TITLE OR NON-INFRINGEMENT; OR (d) STATUTORY REMEDY, AND (iii) LIGHTSPEED IS NOT RESPONSIBLE FOR ANY PRODUCT CONFIGURATION SETTINGS OR PRODUCT CHANGES OR BETA TECHNOLOGY CHANGES APPLIED BY OR ON BEHALF OF CUSTOMER. LIGHTSPEED EXPRESSLY DISCLAIMS ANY SPECIFIC SERVICE LEVEL WARRANTIES OR COMMITMENTS. REGARDLESS OF ANY OTHER TERM OF THIS AGREEMENT, NOTHING IN THIS AGREEMENT EXCLUDES OR PURPORTS TO EXCLUDE ANY STATUTORY RIGHT OR WARRANTY THAT MAY NOT BE EXCLUDED BY LAW. IF ANY PART OF THE PRODUCTS IS GOODS OR SERVICES TO WHICH A GUARANTEE UNDER THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH) APPLIES, THEN SECTION 15 (LIMITATION OF LIABILITY) WILL NOT APPLY AND LIGHTSPEED’S LIABILITY IS LIMITED, AT LIGHTSPEED’S OPTION, TO: (A) REPAIR, REPLACEMENT OR RESUPPLY OF THE PRODUCT; OR (B) PAYMENT OF THE COST OF REPAIR, REPLACEMENT OR RESUPPLY OF THE PRODUCT.

Customer may not assign any of its rights or obligations under this Agreement without Lightspeed’s prior written consent. Lightspeed may, without Customer’s prior consent, assign its rights and obligations under this Agreement. Subject to the foregoing, the provisions of this Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and permitted assigns. Lightspeed shall be free to perform all or any part of this Agreement through one or more subcontractors.

18.1. This Agreement shall be governed by and interpreted in accordance with the laws of the applicable jurisdiction indicated in Section III below.

18.2. As a condition to either party initiating arbitration as provided for below, Lightspeed and Customer agree to undertake good faith efforts to resolve any claim, dispute, or controversy arising out of or relating to this Agreement (a “Dispute”). In order to make a good faith attempt to resolve a Dispute, the party seeking relief must notify the other party in accordance with the notice provisions provided for in this Agreement with a written statement (the “Dispute Notice”) which (i) describes the Dispute; (ii) identifies the provision(s) of the Agreement with which the party seeking relief contends the other party has failed to comply; and (iii) requests that the parties meet and confer on a mutually agreeable date and time within thirty (30) days after receipt of the Dispute Notice. The purpose of the meet and confer process is to try to arrive at a mutually agreeable resolution of the Dispute, which may include a compromise or settlement. The parties agree that any statements made by either party during the meet and confer process, including any proposed resolution of the Dispute, are confidential. Any such statements may not be relied upon or introduced as evidence for any purpose, including but not limited to impeachment, in any arbitration or other proceeding.

18.3. Any Dispute not resolved by the meet and confer process described in Section 18.2 within ninety (90) days of the first meeting set out in the Dispute Notice (or such longer period as the parties may mutually agree to in writing)  will be determined by confidential arbitration to the exclusion of the courts. The arbitration will be conducted pursuant to the Rules of the International Court of Arbitration of the International Chamber of Commerce that are in effect on the date of the receipt of the Dispute Notice (the “Rules”). The venue and the seat of the arbitration will be as indicated in Section III below. The arbitration will be determined by a sole arbitrator appointed pursuant to the Rules, and will be conducted in the English language to the extent permitted by applicable law. Evidentiary questions during the arbitration will be governed by the International Bar Association Rules on the Taking of Evidence in International Arbitration then in effect. The arbitrator’s award will be binding and final. 

18.4. Customer agrees to waive any right Customer may have to commence or participate in any class action or representative proceeding against Lightspeed related to any Dispute and, where applicable, Customer also agrees to opt out of any class or representative proceedings against Lightspeed.

18.5. Notwithstanding the foregoing provisions, (i) each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (ii) Lightspeed reserves the right to collect any outstanding amounts that Customer owes to Lightspeed in a court of competent jurisdiction.

18.6. The prevailing party in any action brought under this Agreement shall be entitled to recover from the other party, in addition to all other relief, its reasonable attorneys’ and other experts’ fees and expenses incurred with respect to such action.

Products which Lightspeed may provide or make available to Customer may be subject to U.S. export control and economic sanctions laws. Customer agrees to comply with all such laws and regulations as well as all laws and regulations applicable to the Customer’s jurisdiction of origin, as they relate to the access and use of Products. Customer agrees not to access the Product from any jurisdiction in which the provision of the Product is prohibited under U.S. or other applicable laws or regulations (a “Proscribed Country”) or provide access to the Product to any government, entity or individual located in any Proscribed Country. Customer represents, warrants, and covenants that (i) it is not a national of, or company registered in, any Proscribed Country; and (ii) it shall not permit third parties to access or use the Product in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions.

20.1. If one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of this Agreement shall be unaffected.

20.2. Unless otherwise required by applicable law, Customer may address all notices, statements and other communications to Lightspeed to the following address:

Lightspeed Commerce Inc.
700 Rue Saint-Antoine E Street
Montréal, QC, H2Y 1A6
Canada

With a mandatory copy to:
[email protected]

20.3. Lightspeed may provide any and all notices, statements and other communications to Customer through either email, posting on its website, an in-product message, or by mail or express delivery service. In all cases, these notices, statements and communications will be deemed received by Customer on the date that they are sent or posted.

20.4. During the term of this Agreement, Customer grants Lightspeed a free license to use, reference and display the Customer’s name and trademarks in any communications, including publications, press releases, stories, websites, social media posts, and public filings in connection with the promotion, marketing, distribution and public disclosure of the Lightspeed brand, activity and Products (collectively, the “Materials”). Following the termination of this Agreement, Lightspeed shall have sixty (60) days to remove all Customer’s name and trademarks from the Materials.

20.5. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than Customer’s payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party.

20.6. This Agreement, along with the applicable Order Form, the Acceptable Use Policy, the Infringement Policy, the Privacy Policy and the DPA, constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto.

20.7. In the event of any inconsistency or conflict between the terms of the Agreement and the terms of the Order Form, the terms of the Order Form shall govern.

20.8. Lightspeed reserves the right, at any time and upon thirty (30) days’ written notice, to amend this Agreement, including making changes to the Fees and scope of the Products. Such amendments may be made for reasons including, but not limited to: (i) complying with applicable law or regulation, (ii) security reasons, (iii) changes in market conditions, and (iv) changes imposed by a third-party supplier.

20.9. Customer has reviewed, understood and accepted the terms and conditions set forth in this Agreement and has either consulted with legal counsel prior to executing this Agreement or has knowingly forgone its right to consult with legal counsel prior to such execution.

20.10. The parties acknowledge that they require that this Agreement be drawn up in the English language, that the English language version prevails and that any translation is for information purposes only.

1.1. Customer will retain ownership of the URL and/or domain name applicable to any website utilized by Customer in connection with the Lightspeed eCom (C-Series) and Lightspeed eCom (E-Series) products (“Customer’s Site”).

1.2. Customer represents and warrants that currently and throughout the Term, Customer and any Users are fully authorized to publish, and authorize Lightspeed to publish on behalf of Customer, without the necessity of obtaining any further permissions from or payments to any third party, all of the materials provided for publication on Customer’s Site, including without limitation, text, logos, photos and other graphics.

1.3. For Customers in certain countries, certain Product functionality, such as the online shopping cart, can be added to social media networks, such as Facebook or TikTok (“Social Media Network”).

By connecting Customer’s account to a Social Media Network account, Customer acknowledges and agrees that they are consenting to the continuous release of information to others, including to the Social Media Network (in accordance with their privacy settings on the Social Media Network and Lightspeed account settings). Lightspeed and the Social Media Networks are continually making changes and improvements to this feature, and therefore the available features, and information that is shared, may change from time to time and without notice.

1.4. If Customer chooses to upgrade or downgrade its Lightspeed eCom (E-Series) subscription from one paid plan (“Old Plan”) to another paid plan (“New Plan”), their service will be switched immediately to the New Plan. The payment for the unused portion of service from Customer’s Old Plan will be credited toward the price of the New Plan. Customer’s future monthly billing date will always remain the same. If the Plan change is a downgrade, credit will be applied to future months and Customer’s next monthly fee will be charged when the credit from the Old Plan has been used. If the Plan change is an upgrade, Customer will be charged the remaining portion for the current billing period immediately, and subsequent months will be charged on Customer’s previously existing billing date. Remaining credit from the current billing period will be calculated based on the number of remaining days in the current billing month.

1.5. Notwithstanding other provisions of this Agreement, Lightspeed eCom (E-Series) Customers can cancel their paid subscriptions to Lightspeed eCom (E-Series)  at any time by downgrading to a free plan. There will be no subsequent charges to their credit card or Paypal account after cancellation.

The Lightspeed eCom (E-Series) account may be terminated by selecting the “Close my account” option in the account. Any paid subscription needs to be canceled before an account can be closed.

2.1. If Customer’s Order Form includes the purchase of Meraki routers, such purchase includes a one-year Meraki license. Upon expiration of that license, Customer agrees to pay to Lightspeed additional Meraki license fees on an annual basis for the remainder of the Term at the then-current price determined by Lightspeed. Customer agrees (and shall ensure that its Users agree) that use of its Meraki routers shall be governed by the Lightspeed Service Agreement herein and the End-User License Agreement and Product Specific Terms located at https://www.cisco.com/c/en/us/about/legal/cloud-and-software/end_user_license_agreement.html (the “Cisco Agreements”). If Customer or its Users breach the Cisco Agreements, Customer shall indemnify, defend and hold harmless Lightspeed and its officers, employees, and agents from and against all Costs arising from the breach.

2.2. If at any point during the Term Customer processes payments using a Third-Party Services provider of payment processing, Customer will be assessed a Fee in the amount of $/€/CHF 99.00 per month for each month in which Customer processes a transaction through such Third-Party Services provider (the “Gateway Fees”).

2.3. Notwithstanding anything to the contrary in Section 5 of this Agreement, (i) Fees attributable to recurring subscription services are paid in advance on a monthly basis, and Fees attributable to non-recurring services and Hardware (as defined below) shall be paid upon Customer’s execution of an Order Form referencing such non-recurring services or upon receipt of an invoice; and (ii) Customer authorizes Lightspeed to charge any credit card and/or bank account provided by Customer for all amounts arising under this Agreement.

3.1. If Customer agrees to purchase point-of-sale equipment and supplies (“Hardware”), Customer shall pay the purchase price set forth in the Order Form or website (as applicable), including shipping/handling fees, duties, brokerage fees, and any applicable sales, use, harmonized, valued-added or similar taxes. Hardware is subject to availability and will be shipped to Customer upon due receipt of payment. Lightspeed may fulfill a Hardware purchase order by shipping to Customer an equivalent Hardware product with same functionality. Customer must verify no later than five (5) business days from receipt of Hardware that shipment was accurate and complete, failing which the Product warranty under this section will be inapplicable.

3.2. In addition to any applicable manufacturer’s warranty, Lightspeed warrants to Customer that new Hardware will be free from defects in workmanship and materials (“Limited Warranty”) for thirty (30) days from the date that Hardware was shipped to Customer as original end-user (“Warranty Period”). This Limited Warranty is not transferable. During the Warranty Period, Lightspeed may, at its sole option, repair or replace Hardware without charge for either labor or parts. If Lightspeed is unable to repair or replace the Hardware, Lightspeed agrees to refund Customer the net purchase price paid by Customer for the affected Hardware. Hardware must be returned in good condition in the original packaging and include all related components. Charges for returning Hardware shall be for Customer’s account. A restocking fee may also apply. Following expiration of the Warranty Period, Customer must contact manufacturer for any repairs or replacement and adhere to manufacturer’s merchandise return procedures. The manufacturer’s warranty and contact information are included with the Hardware. Lightspeed’s Limited Warranty does not apply: (i) to normal wear and tear; (ii) if the Hardware is opened, tampered with or repaired by someone not authorized by Lightspeed; (iii) to any damage attributable to misuse, moisture or liquids, accident, abuse, neglect or misapplication; (iv) to physical damage to the surface of Hardware, such as scratches, dents or other cosmetic changes; or (v) if used with products or services not provided or licensed by Lightspeed. For the avoidance of doubt, Lightspeed shall have no responsibility for Hardware purchased directly from the manufacturer or another supplier, including but not limited to issues related to product defects, warranties, returns, or support.

3.3. Lightspeed may provide Customer with occasional help and guidance with regard to Customer’s network installation and setup, however, Customer remains at all times responsible for its own network.

3.4. REPAIR OR REPLACEMENT ARE THE EXCLUSIVE REMEDY PROVIDED IN CONNECTION WITH THE PURCHASE BY CUSTOMER OF THE HARDWARE. LIGHTSPEED, ON BEHALF OF ITSELF, ITS RESELLERS AND DISTRIBUTORS, HEREBY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND/OR FITNESS FOR PURPOSE.

3.5. Customer acknowledges and agrees that any and all hardware including but not limited to tablet(s), printer(s) and/or payment terminal(s) that are being provided to the Customer at a discount (or free of charge) are conditional upon Customer using the point of sale services and Lightspeed Payments, to the extent applicable, for at least twenty-four (24) months from the date of such discount. If the Customer (i) ceases to use the point of sales services within twenty-four (24) months of the date of such discount, (ii) does not begin processing transactions with Lightspeed Payments within thirty (30) days of the date of such discount or (iii) does not continue to processes bona fide transactions representing a minimum daily average of 100.00 in local currency in transaction volume, as measured monthly, with Lightspeed Payments for at least twenty-four (24) months from the date of such discount, then Customer agrees to immediately pay Lightspeed the value of the hardware, plus shipping costs.

Lightspeed Payments is a separate payment processing service governed by a different set of agreements, including those of third-party payments processors. To the extent applicable, these agreements are referenced in the Order Form and the online merchant application. By submitting a merchant application, Customer has been presented with, and consented to, these separate terms and conditions.

To the extent Customer’s Order Form includes access to Lightspeed’s application programming interfaces (the “Lightspeed APIs”), Customer’s access to and use of the Lightspeed APIs is governed by the Lightspeed API License Agreement located at https://developers.lightspeedhq.com/terms (the “API Agreement”), the terms of which are incorporated herein by reference. Customer acknowledges that the API Agreement provides Lightspeed with the latitude to limit or revoke Customer’s access to the Lightspeed APIs at any time in its sole discretion. Customer may engage a third-party developer to integrate into the Lightspeed APIs on Customer’s behalf, provided such third-party developer first enters into the API Agreement with Lightspeed and Lightspeed approves such third-party developer’s access in its sole discretion.  To the extent Customer engages such a third-party developer, Customer shall be liable for the acts and omissions of such third-party developer to the same extent Customer would be liable under the API Agreement if such acts and omissions were those of Customer.

6.1. If Customer chooses to use Lightspeed’s shipping labels feature, Lightspeed and any designated third parties will serve only as an intermediary between Customer and the shipping carrier (e.g., USPS), allowing Customer to purchase postage and print shipping labels. While Lightspeed will facilitate the purchase and production of shipping labels, Customer is responsible for shipping to its clients. Lightspeed is not responsible for picking up, transporting, delivering or otherwise dealing with any shipments. 

6.2. Customer’s use of postage is subject to, and each Customer is responsible for compliance with, all applicable carrier rules and all local and international shipping and customs regulations, charges, taxes and duties. If any such charges become due and are charged to Lightspeed by any competent authority as a result of Customer’s use of Lightspeed shipping labels feature, Customer agrees to reimburse Lightspeed fully in respect of the same within 7 days of demand.

6.3. Customer must maintain a valid payment method on file to use the shipping labels feature, and Customer authorizes Lightspeed to charge such payment method for any fees incurred in relation to the shipping labels feature. If payment is declined, or if Lightspeed is otherwise not able to collect payment, Customer will not be able to purchase any subsequent postage until such fees are paid.

6.4. Customer acknowledges and agrees that use of Lightspeed’s shipping labels feature, including information transmitted to or stored by Lightspeed, is governed by Lightspeed’s Privacy Policy. At the same time, any chosen shipping carrier will apply their own privacy policy to the information processed by that carrier.

7.1. Lightspeed may – in its sole and absolute discretion – accept the right to resell tee times at Customer golf courses as trade for Customer’s Fees (“Lightspeed Trade”). 

7.2. If Lightspeed accepts Lightspeed Trade as a method of payment for Customer’s Fees, Lightspeed and Customer will agree – in writing and as specified in an Order Form – on any applicable restrictions to  Lightspeed’s resale of tee times as trade for Customer’s Fees (“Lightspeed Tee Times”).

7.3. Lightspeed will only consider Lightspeed Trade as a potential payment option for the Fees if:

(i) Customer uses Lightspeed Products as the sole online reservation booking platform for tee times at Customer’s golf courses available via the Customer’s website;

(ii) Lightspeed Tee Times must be available for purchase via Customer’s website at all times; and

(iii) Lightspeed Tee Times must not – as determined by Lightspeed in its sole and absolute discretion – be disadvantaged or sold and/or marketed in a way that is less desirable to end-customers compared to Customer’s other available tee times.

7.4. Customer agrees that Lightspeed has sole and absolute discretion to set the price of Lightspeed Tee Times, whether purchased directly from Customer’s website, Lightspeed’s marketplace, or distribution partners. For the avoidance of doubt, Customer shall not be entitled to any revenue generated from Lightspeed’s sale of Lightspeed Tee Times, nor shall Customer be entitled to any data or information pertaining thereto, which is owned exclusively by Lightspeed. 

7.5. Lightspeed may, in its sole and absolute discretion, at any time, revoke all or part of Customer’s option to pay the Customer’s Fees using Lightspeed Trade. If Lightspeed decides to revoke Customer’s option to pay the Customer’s Fees using Lightspeed Trade, Lightspeed will notify Customer and Customer will immediately be required to pay the Fees listed in the Order Form, including any outstanding Fees, using a payment method determined by Lightspeed.

7.6. Customer consents to and hereby authorizes Lightspeed to use, share, publish, post, and release information on behalf of Customer on or through relevant Third-Party Services. Customer further authorizes Lightspeed to manage Customer’s advertising and marketing budgets on behalf of Customer. Customer represents that its use of Lightspeed’s digital marketing services (the “DMS Services”) does not conflict with or result in a breach of the terms and conditions of such Third-Party Services. In the event that Lightspeed is contacting the Customer’s clients by email, Customer represents that it has obtained the requisite consent to contact those clients.

7.7. Customer will retain ownership of the Customer’s name and trademarks and grants Lightspeed a free license to use, reference and display the Customer’s name and trademarks in any communications, including press releases, advertisements, stories, and social media posts (the “Posts”) in connection with the DMS Services offered by Lightspeed. Customer understands that Lightspeed shall not be responsible for any content provided by Customer and used by Lightspeed in any Posts. Unless otherwise agreed to by the parties in writing, Lightspeed will retain ownership of the intellectual property rights arising from or subsisting in the Posts.

8.1. The NuORDER product is a separate B2B service offered by Lightspeed NuORDER Inc. (“NuORDER”), a subsidiary of Lightspeed, and governed by a different set of agreements entered into between Customer and NuORDER. 

8.2. If the Customer enables the NuORDER Integration (as defined below) in accordance with Section 11.1 of this Agreement, Customer additionally acknowledges and hereby agrees that Lightspeed may collect, store, use, share and distribute Customer Content as well as transaction, sale and purchase data to other NuORDER customers and users in both identifiable and aggregate form. 

8.3. The “NuORDER Integration” means the services provided by Lightspeed that enable Customer to (i) link Customer’s Lightspeed Product  with Customer’s NuORDER account;  and (ii) share data, including Customer Content as well as transaction, sale and purchase data  directly between Customer’s NuORDER account and Customer’s Lightspeed  Product.