This End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Paerpay, Inc., a Delaware corporation (“Company”). This Agreement governs your full or partial use of the Paerpay Platform (the “Product”).
BY SIGNING THIS AGREEMENT, WHETHER BY TANGIBLE OR ELECTRONIC MEANS, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
1. License Grant. Subject to the terms of this Agreement, so long as you are current on all fees set forth in the Order Form, Company grants you a limited, non-exclusive and non-transferable license to:
(a) download, install and use the Product in connection with your restaurant at the specific location (the “Location”) set forth on the attached Order Form during the Term, as the Order Form may be modified from time to time strictly in accordance with the terms of the Order Form and this Agreement;
(b) access, download and use on such devices owned or otherwise controlled by you at the Location (“Devices”) the Content and Services (as defined in Section 5) made available in or otherwise accessible through the Product, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 5; and
(c) allow your guests to interact with the Product at the Location through your Devices or through their own mobile devices via the Product’s “Text to Pay” feature.
2. License Restrictions. You shall not:
(a) copy the Product, except as expressly permitted by this Agreement;
(b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Product;
(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Product or any part thereof;
(d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Product, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Product or any features or functionality of the Product, to any third party for any reason (other than to your restaurant guests at the Location);
(f) use the Product, or allow its use, transfer, transmission or export in violation of any export control laws or regulations administered by the United States government;
(g) use the Product for the purpose of developing competing products or technologies or assisting a third party in such activities;
(h) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, encryption, rights management or security features in or protecting the Product; or
(i) use the Product in violation of the Company’s Terms of Use.
3. Reservation of Rights. You acknowledge and agree that the Product is provided under license, and not sold, to you. You do not acquire any ownership interest in the Product under this Agreement, or any other rights thereto other than to use the Product in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company reserves and retains the entire right, title and interest in and to the Product, including all copyrights, trademarks, patents and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
4. Collection and Use of Information; Terms of Use. You acknowledge that when you download, install and/or use the Product and/or when your guests are provided access to the Product, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Devices and your guests’ mobile devices and about your and your guests’ use of the Product. You also may be required to provide certain information about yourself as a condition to downloading, installing or using the Product or certain of its features or functionality, and the Product may provide you with opportunities to share information about yourself with others. By being allowed to interact with the Product, your guests will be required to provide certain information about themselves in order to facilitate their experience at the Location. This information may include their first name, last name, mobile phone number, payment information and Google ID number, or other information pursuant to future Product updates. We will identify to your guests any future information that is required to be collected from them in order to use the Product. All information we use, collect through or in connection with this Product from you and your guests is subject to our Privacy at https://paerpay.com/privacy-policy (the “Privacy Policy”), our Cookie Policy at https://paerpay.com/cookie-policy (the “Cookie Policy”) and our Terms of Use at https://paerpay.com/terms-and-conditions (the “Terms of Use”, collectively with the Privacy Policy and Cookie Policy, the “Use Policies”). By downloading, installing, using and providing information to or through this Product, you agree to all terms and conditions of the Policies and your guests will be required to agree to the terms of the Policies in connection with accessing the Product to facilitate their experience at the Location. A message indicating such required acceptance by your guests and links to the Policies will be presented to your guests when they are provided with access to the Product.
5. Content and Services. The Product may provide you and your guests with access to Company’s website located at paerpay.com and paerpay.app (collectively, the “Website”) and products and services accessible thereon, and certain features, functionality and content accessible on or through the Product may be hosted on the Website to allow you to offer your guests a better experience while they are at the Location (collectively, “Content and Services”). Your and your guests’ access to and use of such Content and Services are governed by the Policies, which are incorporated herein by this reference. Your and your guests’ access to and use of such Content and Services will require you and them to each acknowledge acceptance of such Policies.
6. Content and Services Restrictions. The Content and Services are provided for access and use only in connection with the Location.
7. Updates. Company may from time to time in its sole discretion develop and provide Product updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Product. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features, functionality or support, except as set forth in the Order Form. Based on your Device settings, when your Device is connected to the internet either:
(a) the Product will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Product or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Product and be subject to all terms and conditions of this Agreement.
8. Third Party Materials. The Product may display, include, interact with or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, compliance with intellectual property rights of others (including copyright, trademark, patent rights), legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you, your guests or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you, your guests and you and your guests’ access and use them at entirely at your and their own risk and subject to such third parties’ terms and conditions. More information on how the Product interacts with Third Party Materials is included in the Privacy Policy.
9. Fees and Payment Terms. Your right to use the Product and your guests’ continued access to the Product are conditioned upon your timely payment of the full amount of fees due for the Product and your compliance with the terms of this Agreement.
(a) Fees. The applicable fee for the Product is specified in your Order Form. You agree to pay the fees according to the payment terms in your Order Form.
(b) Payment Terms. The payment terms and conditions for the fees payable to the Company are specified in the applicable Order Form. All monthly, yearly, and one-time fees paid to the Company are non-refundable. The Company may terminate this Agreement and invalidate your license to the Product if the billing or contact information you provide is false, fraudulent, or invalid. If the applicable Order Form does not contain specific payment terms for the fees in question, payment for those Product’s fees will be due within thirty (30) days of the Order Form being signed. If you do not pay an amount by the scheduled bill date, the Company will have the right to withhold the delivery of the Product, terminate your and your guests’ access to the Product or terminate this Agreement and accelerate the bill date of all remaining payments. In this event, you will owe the entire outstanding balance as soon as you receive written notice from the Company that your payment is due. You may not offset any amounts you believe Company owes you against any payments you make to the Company under this Agreement. You must make payments in U.S. Dollars, unless otherwise stated. If you do not pay an amount by the bill date, the Company may, in addition to other remedies provided herein, charge a late payment charge of one percent (1.0%) per month or the highest rate permitted by law, whichever is less.
(c) Taxes. You will pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties, and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial, or local government entity or any non-U.S. government entity on the transactions contemplated by this Agreement, excluding taxes based upon the Company’s net income.
10. Term and Termination.
(a) The term of this Agreement (“Term”) commences on the date set forth below and will continue in effect until terminated in accordance with the Order Form or by you or Company as set forth in this Section 10.
(b) You may terminate this Agreement on 30 days’ written notice to the Company at any time within sixty (60) days’ of the end of the initial one (1) year term set forth on your Order Form, and after such initial term, on at least thirty (30) days’ written notice to the Company.
(c) The Company may terminate this Agreement at any time upon notice to you. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will terminate;
(ii) you must cease all use of the Product and delete all copies of the Product, including from any Devices and account; and
(iii) your and your guests’ access to the Product shall immediately be denied.
(e) Termination will not limit any of Company’s rights or remedies at law or in equity, and you will be responsible for all amounts due under any Order Form for the period through the termination date. Sections 10, 3 and 11 through 18 of this Agreement shall survive the expiration or termination of this Agreement for any reason.
11. Disclaimer of Warranties. SUBJECT TO THE LIMITED WARRANTY PROVIDED BELOW, THE PRODUCT IS PROVIDED TO YOU (INCLUDING YOUR GUESTS’ USE AND INTERACTION THEREWITH) “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PRODUCT WILL MEET YOUR OR YOUR GUESTS’ REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, PRODUCTS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limited Warranty: Notwithstanding the foregoing, the Company warrants to you that (i) the Product complies in all material respects with Web Content Accessibility Guidelines (WCAG) 2.0, based on the W3C Recommendation dated December 11, 2008 and (ii) is PCI compliant.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY TO YOU ARISING FROM OR RELATED TO YOUR OR YOUR GUESTS’ USE OF OR INABILITY TO USE THE PRODUCT OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; AND/OR
(b) DIRECT DAMAGES,
PROVIDED THAT, IN NO EVENT WILL COMPANY BE LIABLE TO YOU FOR ANY IN AMOUNTS THAT IN THE AGGREGATE DO NOT EXCEEDIN EXCESS OF THE MOST RECENT TWELVE (12) MONTH’S FEES ACTUALLY PAID BY YOU FOR THE PRODUCT AT THE LOCATION WHERE SUCH DAMAGES ALLEGEDLY AROSE.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties, and absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including without limitation the economic terms set forth in the Order Form with respect to the Product, would be substantially different.
13. Indemnification. You agree to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses”), arising from or relating to your and/or your guests’ use or misuse of the Product or your breach of this Agreement, provided that such Losses did not arise out ofthe gross negligence or willful misconduct of Company. Furthermore, you agree that Company assumes no responsibility for the content you submit or make available through this Product. Company hereby agrees to indemnify and hold harmless you and your officers, directors, employees, agents, affiliates, successors and assigns from and against any and all Losses arising from or relating to Company’s breach of any third party intellectual property rights or Company’s gross negligence or willful misconduct in fulfilling its obligations under this Agreement.
14. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
15. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement, the Content and Services or the Product shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Massachusetts in each case located in Boston and Suffolk County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
16. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
17. Entire Agreement. This Agreement, the Order Form and our Policies constitute the entire agreement between you and Company with respect to the Product and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Product.
18. Amendment; Waiver. Any amendment of this Agreement or waiver of any term hereof will be effective only if in writing and signed by duly authorized representatives of each party. No failure to exercise and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
19. Injunctive Relief. You agree that a breach of any of the promises or agreements contained in this Agreement by you may result in irreparable and continuing injury to the Company for which monetary damages would may not be an adequate remedy and therefore the Company is may be entitled to seek injunctive relief as well as such other and further relief as may be appropriate.