HARDWARE, SOFTWARE AS A SERVICE (SAAS) AND SERVICES TERMS AND CONDITIONS
These Hardware, Software as a Service (SaaS) and Services Terms and Conditions (“Terms” or this “Agreement”) govern the purchase of Hardware, the license to the Software and access to Services and the use of the Website by the Client and its Users (“you”, “your”, and terms of similar meaning) made available by LimeOrder Inc. (“we”, “us”, “Provider” and terms of similar meaning) and its suppliers.
By accepting this Agreement, by (a) clicking a box indicating acceptance; (b) accepting or executing an Order Form that references this Agreement; or (c) or by accessing or using the Services or the Website, you agree to be bound by these Terms, and all terms, policies and guidelines incorporated by reference in these Terms. If a Client registers for a free trial of the Services, the applicable provisions of these Terms will also govern that free trial.
If the individual accepting this Agreement is accepting on behalf of a company or legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Terms, in which case the term “Client” or “User” (as the case may be) shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these Terms, such individual must not accept this Agreement and may not use the Services or the Website.
The Order Form is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Order Form expressly conflict with these Terms, the conflicting provisions of the Order Form control and shall take precedence over the conflicting provisions of the Terms.
- “Administrator” means a person or persons assigned by the Client to have the authority to act as the administrator of the subscription on behalf of the Client.
- “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services or Hardware.
- “CASL” means any applicable federal, provincial and local laws, regulations and rules governing the sending of commercial electronic messages.
- “Client” shall mean the individual or organization who is bound by the terms of an Order Form and this Agreement.
- “Client Data” means any data or content inputted into the Website or the Software, or generated within the Software, by the Client or any of its Users and hosted on the servers of the Cloud Providers.
- “Cloud Providers” has the meaning given in Section 8.1.
- “Fees” means the fees to be paid by the Client pursuant to an Order Form, these Terms and any applicable Schedules.
- “Hardware” means the hardware/systems listed in an Order Form.
- “Order Form” means (i) the Final PosLimeOrder orProvider authorized reseller Order fForm; or (ii) an online order through the Website specifying the Hardware the Client is purchasing and the Services to be provided hereunder, that is entered into between the Client and the Provider or the Client and the Provider authorized reseller, including any Schedules, addenda and supplements thereto.
- “Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.
- “Privacy Laws” means any applicable federal, provincial and local laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (British Columbia), the Personal Information Protection Act (Alberta), and any similar legislation enacted by any province or territory of Canada.
- “Provider Data” means any data or content made available through the Software by the Provider and/or its licensors.
- “Schedule” means a schedule, which is attached to this Agreement, the Order Form, or which may be added hereafter by written agreement of the parties.
- “Services” means the Hardware, Software and services to be provided by the Provider to the Client as described in this Agreement, the Order Form and/or any Schedule and any additional services authorized by the Client that the Provider agrees to perform or is required to perform hereunder. The Services shall include, but are not limited to the delivery of the Hardware, the use of the Hardware and Software, and other related services to be provided by the Provider to the Client pursuant to the Order Form or any Schedule.
- “Software” means the LimeOrder software as a service (SaaS) platform (including the Provider Data) licensed to the Client and the number of User licenses purchased by the Client pursuant to the terms of the Order Form.
- “Specifications” means the specifications for the Hardware described in the Order Form.
- “Term” shall have the meaning given in Section 14.1.
- “Transactions” means the number of invoices the Client processes through the Software each month (if the Client is subject to a Monthly Subscription Term) or per annum (if the Client is subject to an Annual Subscription Term).
- “User” means an individual user who (i) accesses the Website, is permitted to use the Software and/or accesses the Software; and (ii) agreed to these Terms. Users may include employees or contractors of the Client who are authorized to use the Services
- “Website” means the LimeOrder website made available at https://limeorder.com or its subdomains or domains with identical names under other top domains owned by the Provider, however accessed by the Client, its Users or other individuals or entities.
PRIVACY AND SECURITY
- Hardware. The Provider, or Provider authorized reseller, shall sell to the Client, and the Client shall purchase from the Provider, or Provider authorized reseller, the Hardware, in accordance with this Agreement, the Order Form and the applicable Schedule(s).
- Delivery. The Hardware will be delivered by the Provider or the device manufacturer or their distribution facilities, their resellers or a third-party delivery company within a reasonable time after the Effective Date, unless a firm date is agreed to in a Schedule, subject to availability of the Hardware. The Hardware shall be delivered to the location specified in an Order Form (the “Delivery Point”) .
- Additional Hardware. The parties hereto may agree upon the purchase of additional Hardware and accompanying Services after the execution of this Agreement by entering into a new Order Form. Any such additional Order Form(s), if any, shall hereinafter be added as a Schedule to this Agreement, subject to the terms and conditions of this Agreement.
- Warranties. Upon the Client’s receipt of the Hardware there may be a warranty certificate or warranty coverage information (each a “Warranty Certificate”) provided (a) within the packaging of the Hardware; (b) in the Order Form; or (c) as otherwise provided by the Provider (pursuant to the Section 17.8 below). Depending on the type of Hardware purchased (i) the warranty provided and the duration of the warranty (the “Warranty Period”) may vary; and (ii) the warranty may be provided by the Provider or the manufacturer of the Hardware. If the warranty is provided by a third-party manufacturer, the Warranty Certificate shall not be considered a Schedule to this Agreement and shall in no way be deemed a part of this Agreement or the Order Form.
4-LICENSE TO SOFTWARE AND WEBSITE
- The Provider hereby grants to the Client and authorized Users a non-exclusive, non-transferable license to use the Software and the Website and solely permit the Client and its Users to use the Website functionality contained within the Software for legitimate purposes during the Term. The number of User licenses granted and/or Transactions allowed are specified in the Order Form and any changes thereto may result in a change to the Fees specified therein.
- Services. The Provider shall perform the Services in accordance with this Agreement, the Order Form and the applicable Schedule(s), and in a timely, diligent and professional manner. The Provider warrants to the Client that the Services will be performed by or on behalf of the Provider in a good, workmanlike and professional manner, in accordance with Applicable Law and in accordance with generally accepted industry standards for the provision of similar services.
- Work Schedule. Subject to Section 17.5 of these Terms, unless they are expressly described as firm deadlines, in which case the Provider’s obligation shall be to meet such dates, any schedules, deadlines or timeframes set forth in a Schedule represent estimates that the Provider shall use its reasonable commercial efforts to achieve. The Client acknowledges that the Provider’s successful and timely performance of the Services is dependent on the active participation and collaboration of the Client, its Users, employees and representatives. The Client shall, and shall cause its User, employees and representatives, to act reasonably and co-operate fully with the Provider with respect to the Provider’s performance of the Services. The Provider shall not be liable for any delay or cost or expense caused as a result of the delay of the Client, its Users, employees and representatives, provided that the Provider has notified the Client of such delay.
- Except as set forth in this Agreement, the Order Form, any Schedule and to the extent contrary by Applicable Law: the Client and any User may not (a) make or distribute copies of the Services or Website; (b) use the Services to provide services to third-parties; (c) alter, copy, merge, adapt, reformat, download, or translate the Software or Website, or decompile, reverse engineer, disassemble, or otherwise reduce the Software or Website through automated or other means to a human-perceivable form, including, without limitation, using the Services or Website in conjunction with, or combining content therefrom with, content obtained through scraping or any other means outside the Services or Website, or any part thereto; (d) sell, rent, share, lease, transfer, distribute, display, host or sublicense the Hardware or Software (except as is incidental or necessary for the provision of the Software to Users); (e) disassemble or modify the Hardware, Software or Website or create derivative works based upon the Hardware, Software or Website; provided however that the foregoing will not restrict Client’s rights to exploit any Client Data which may be incorporated into, reside in, or form a part of the Software; (f) use the Services or the Website in a manner that breaches the rights of any third-party, any contract (including this Agreement or Third-Party Licenses) or legal duty or violate any Applicable Law; (g) copy the Services or the Website or any part, feature, function or user interface thereof; (h) access or use the Services or the Website in any way for the purposes of competing with the Services or in order to build a competitive product or service; (i) use the Services or the Website other than for its intended purposes, including, without limitation, in a manner that, as determined by the Provider in its sole discretion, constitutes excessive or abusive usage; and/or (j) do anything to interfere with or impair the intended operation of the Website.
- Provisioning and User Accounts. Upon agreeing to an Order Form, the initial Administrator of the Client will be permitted to register for a User account. The initial Administrator may add other Administrators and authorize Users subject to the limitations and additional terms described in an Order Form. The Initial Administrator and other Administrators shall be deemed to have the authority to manage (including adding and removing) Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Software and related Services for any User. Access to specific features of the Software and related Services may only be available to specific user types.
- Free Trial. If a Client agrees to a free trial pursuant to an Order Form or registers for a free trial on the Website (“Free Trial”), the Provider will make the applicable Services available to the Client on a trial basis, free of charge until the earlier of (a) the end of the Free Trial period for which the Client registered to use the applicable Services, or (b) the start date of the Initial Term (as defined below) under an Order Form. Additional trial terms and conditions may appear on the Website’s Free Trial registration page. Any such additional terms and conditions are incorporated into these Terms by reference. Any Client Data accumulated by a User during a Free Trial will be permanently lost unless the User, on behalf of a Client, agrees to an Order Form before the end of the Free Trial period. Notwithstanding anything to the contrary in Sections 12 and 13, during the Free Trial, the applicable Services are provided “as-is” without any warranty, support or service levels and the Provider shall have no indemnification obligations nor liability of any type with respect to the applicable Services for the Trial Period unless such exclusion of liability is not enforceable under Applicable Law in which case the Provider’s liability with respect to those Services provided during the Free Trial shall not exceed $100
- Registration. Upon logging into the Software for the first time, the Administrators and Users will be prompted to register for a User account. Administrators and Users agree to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Software or the Website (“Registration Data”); (b) maintain the security of the their password; (c) maintain and promptly update the Registration Data, and any other information they provide to the Software or the Website, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information provided to Provider. The Client shall be responsible for all activity by Users on the Software, including the activity performed on the Software through the User accounts by an agent, representative, employee (including former employees who maintained access to the Services), or any other person acting on behalf of such User. It is the responsibility of the Client to delete User accounts or otherwise remove access to Users who should no longer be active (e.g. a User who is no longer an employee or contractor of the Client).
- Registration Cancelation: The Provider can accept or deny Client’s Registration for the free, trial and the paid versions in its own discretion .
8-HOSTING AND SUPPORT
- Hosting. The Provider will cause the Software to be hosted on a cloud server maintained by one or more reputable third-party providers (“Cloud Providers”). The Provider will be responsible for contracting with the Cloud Providers, and for paying all fees and charges of the Cloud Providers. All Client Data stored on the Services is located on servers operated by the Cloud Providers in Canada and/or the United States.
- Support, Maintenance and Training. Support, maintenance and training Services are provided to the Client and its Users in accordance with the terms of the Provider’s Service Level Agreement, as attached hereto in Schedule “A” only for the Paid Subscriptions.
- Backups. The Provider may create a backup or cause its Cloud Providers to create a backup of the Software (including all Client Data) only for the Paid Subscriptions.
9-CLIENT REPRESENTATIONS AND WARRANTIES AND RESPONSIBILITIES
- Client Representations and Warranties. The Client represents and warrants that the Client’s use of the Services and the Website and the use of the Services and Website by the Client’s Users will (a) be consistent with this Agreement, any licenses provided and any Third-Party Agreement; and (b) comply with Applicable Law, including Privacy Laws and CASL. The Client also represents and warrants that it has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. The Client shall be liable for the acts and omissions of any of its Users, directors, officers, employees, contractors, representatives or agents as if such act or omission were an act or omission of the Client.
- Responsibilities. The Client agrees (a) that it shall be responsible for providing and maintaining at least two separate points for its own Internet access (unless otherwise instructed by the Provider) with the necessary bandwidth speeds as recommended by the Provider and all necessary telecommunications equipment, services, software and other materials (collectively, “Client Equipment”) at the Client’s location(s) necessary for accessing the Services (including, without limitation, having separate Internet access with the necessary bandwidth speeds as recommended by the Provider; (b) the Client represents and warrants that it has the right to enter into this Agreement and to allow the Provider to provide the Hardware and perform the Services; and (c) the Client is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data. (d) the Client is responsible for maintaining the confidentiality of its Account login information and are fully responsible for all activities that occur under your Account. It agrees to immediately notify us of any unauthorized use, or suspected unauthorized use of its Account or any other breach of security. The website cannot and will not be liable for any loss or damage arising from its failure to comply with the above requirements. (e) It must not share your password or other access credentials with any other person or entity that is not authorized to access its account. (f) Without limiting the foregoing, it is solely responsible for any activities or actions that occur under its website account access credentials. (h) We encourage the Client to use a “strong” password (a password that includes a combination of upper and lower case letters, numbers, and symbols) with its account. (i) We cannot and will not be liable for any loss or damage arising from Client’s failure to comply with any of the above, its use of our services, willful act or omission. The Client shall keep us indemnified against all forms of liability, actions, proceedings, demands, costs, charges and expenses which LimeOrder may incur or suffer as a result of use of the Services through its account or as a result of its failure to comply with these Terms.
- Required Programs and Hardware. The Client acknowledges that the performance of the Services and/or operation of the Hardware may require that the Client obtain and/or install certain additional services, software programs or add-ons (“Required Programs”) and/or certain additional hardware (“Required Hardware”, collectively with Required Programs shall be referred to as “Required Programs and Hardware”). Unless indicated in a Schedule or the Order Form, the Client shall be responsible, at its own expense, to acquire, maintain, upgrade, and replace as necessary, the Required Programs and Hardware. The Client further acknowledges that the operation of the Hardware and/or the Required Programs and Hardware may require the Client’s own hardware (i.e. not the Hardware purchased under this Agreement) to be of a sufficient quality, condition and repair, and the Client shall be responsible, at its sole expense, to maintain its hardware in the appropriate quality, condition and repair as necessary to operate the Hardware and/or the Required Programs and Hardware.
- Client Indemnity Regarding Use of Services, the Website and Client Data. The Client shall be solely responsible for all inputs, selection and use of the Services, the Website and all Client Data or other data transmitted, received or created using the Services or the Website, even if transmitted, received or created by someone else, and the Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates harmless from any loss, damage or liability which may result therefrom or from any breach by the Client or its Users of this Agreement.
- Acceptable Use of the Services and the Website. The Client and its Users may not:
- use, or encourage, promote, facilitate or instruct others to use the Services or the Website for any illegal, harmful or offensive use or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive;
- use the Services or the Website to violate the security or integrity of any network, computer or communications system, software application, or network or computing device;
- interfere with or disrupt the Services, the Website or servers or networks connected to the Services or the Website or disobey any requirements, procedures, policies or regulations of networks connected to the Services or Website or misuse the Software or the Website by introducing viruses, defects, trojans, worms, logic bombs or other material or item which is technologically harmful or destructive in nature;
- remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials the Client or its Users receive or access pursuant to this Agreement;
- make network connections to any users, hosts, or networks unless the Client and its User have permission to communicate with them;
- distribute, publish, send or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising or solicitations (like ‘spam’), including commercial advertising and informational announcements; and/or
- use the Services or the Website in any way so as to bring the Services, the Website or any part thereof or any third-party related thereto, or the Provider into disrepute.
The Provider reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of the Services or the Website.
10- FEES, EXPENSES AND PAYMENT
- Hardware Fees. In consideration for the purchase of the Hardware and the Provider’s provision of related Services, the Client shall pay the Fees more particularly described in the Order Form and any applicable Schedules. Except as otherwise specified herein or in the Order Form, payment obligations are non-cancelable and Fees paid are non-refundable.
- Software Fees. In consideration for the licensing of the Software and the Provider’s provision of related Services, the Client shall pay the Fees more particularly described in the Order Form and any applicable Schedules. Except as otherwise specified herein or in the Order Form, (i) the Fees are based on the Services purchased and not actual usage; (ii) payment obligations are non-cancelable and Fees paid are non-refundable; and (iii) a subscription type (pertaining to certain User, Transaction quantities, software model etc ) cannot be decreased or downgraded during the relevant subscription term.
- Change to Fees. The Provider reserves the right to introduce or change any Fees on or related to the Services from time to time, upon providing you with thirty (30) days advanced written notice, by e-mailing the Administrator(s) of the Client. If the Client does not accept the changed or new Fees, the Client must terminate these Terms or amend its Services prior to the end of the thirty (30) day period. After such period, if the Terms are not terminated or the Services are not amended, the Client or any of its Users continued use or purchase of the Services after the effective date of the change indicates the Client’s agreement with the new or changed Fees.
- Invoices and Payments. The Client shall be invoiced, for the Services in accordance with the terms of the Order Form. The invoice shall be paid in one of the following ways: (a) the Client shall pay such invoices within five (5) calendar days of receipt (or such other time as specified in the Order Form or any Schedule) (“Manual Payment”), or (b) the Client’s credit card, payment method and/or banking information that the Client provides on the Website, adds to a User account or otherwise authorizes the Provider or an authorized Reseller of the Provider to charge automatically as it relates to the applicable invoice when it is issued will automatically be charged (“Automatic Payment”). Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of two percent (2%) per month on overdue amounts and interest thereon.
- Payment Processing. If and when you add a credit card, payment method and/or banking information to a User account or otherwise provide it to the Provider or an authorized reseller of the Provider (through the Website or otherwise), you authorize the Provider or the Provider authorized reseller to provide this information to its third party payment processor. You acknowledge and agree that the third party payment processor’s terms will govern your agreement and interactions with them and that the Provider has no liability arising from your use of or access to the payment processor. You agree to review the third party payment processor’s terms and policies. The Provider and the Provider authorized reseller reserves the right to switch payment processing vendors in its discretion.
- Taxes. The Client shall be responsible for all applicable sales, goods and services, harmonized sales, value added, use, excise, other similar taxes, levies and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Services hereunder. The Client shall pay such taxes, levies and charges which the Provider and/or the Provider authorized reseller is registered to charge and collect.
- Suspension of Service and Acceleration. If (a) any Manual Payment owing by the Client under these Terms or any other agreement is thirty (30) days or more overdue, or (b) any credit card, payment method and/or banking information associated with an Automatic Payment does not go through when charged and is not rectified with seven (7) days when first charged, the Provider or the Provider authorized reseller may, without limiting its other rights and remedies, accelerate the Client’s unpaid fee obligations under such agreements, so that all such obligations become immediately due and payable, and suspend the applicable Services until such amounts are paid in full.
11-INTELLECTUAL PROPERTY, CLIENT DATA AND PRIVACY
- Ownership of the Software and the Website. Except for any grant of licenses in this Agreement or as otherwise expressly provided in this Agreement, the Provider and its licensors, as applicable, shall retain all copyright, patent rights, trade secret rights, trademarks and other proprietary rights or interests (“Intellectual Property Rights”) in the Software and the Website. Nothing in this Agreement, the Order Form, or any Schedules shall be deemed to convey to the Client or any other party, any ownership right, in or to Software and Website.
- Ownership of Client Data. The Provider acknowledges and agrees that, as between the Parties, the Client is the sole and exclusive owner of the Client Data, and that no right or interest in the Client Data, other than pursuant to Section 11.3 of this Agreement, and will be collected, handled and used by the Provider only in compliance with the terms of this Agreement.
- License from Client to Provider. The Client hereby grants to the Provider a non-exclusive, royalty-free, non-transferable, limited right to use during the Term, Client Data provided to the Provider solely to perform Services pursuant to this Agreement, including, without limitation, allowing the Provider to fix any bugs or problems related to the Services, in accordance with the terms and conditions of this Agreement.
- All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or in the Order Form or a Schedule, all Intellectual Property Rights are expressly reserved by the parties. The Client or the Provider, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by the Provider or the Client, as applicable, from time to time in order to give effect to the provisions of this Article.
- Third-Party/Open Source Software and Sites. The Software and/or the Hardware may contain third-party software, firmware, services, products and/or open source software, which may be subject to third-party licenses and require notices and/or additional terms and conditions (“Third-Party Licenses”). By accepting these Terms, the Client and its Users are also accepting the Third-Party Licenses, if any, set forth therein. These Third-Party Licenses are made a part of and incorporated into these Terms .The Software may also contain links to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”). The Client and each User may use such links to Third-Party Sites and any Third-Party Content or service provided there at their own risk. The Client agrees that the Provider has no liability arising from such third-party software, firmware, services, products and/or open source software, Third-Party Content or Third-Party Sites. The Provider does not monitor or have any control over, and makes no claim or representation regarding, Third-Party Content or Third-Party Sites. A link to a Third-Party Site or Third-Party Content does not imply the Provider’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. The Provider accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content or Third-Party Sites. When a User leaves the Software, this Agreement no longer governs. The Client and each User are responsible for reviewing the applicable terms and policies, including, without limitation, privacy and data gathering practices of any Third-Party Site, and the Client and User should make whatever investigation he/she/it feels necessary or appropriate before proceeding with any transaction with any third-party.
- License by Client to Use Feedback. The Client grants the Provider a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Client or Users relating to the operation of the Software, the Website or the Services.
12-DISCLAIMER AND LIMITATION OF LIABILITY
- Disclaimer. Except as set out in the Order Form, the Website this Agreement or any Schedules, the Services are provided to the Client and authorized Users on an “as-is” basis, without warranties from the Provider of any kind, either express or implied. The Provider expressly disclaims all other warranties, express or implied, including, without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, unless otherwise specified in the applicable Order Form. The Provider disclaims all liability for any content posted on the Website that may be outdated, inaccurate or misleading. The Provider does not warrant that the Services will be error-free or will operate without interruption.
- No Indirect, Etc. Damages. Under no circumstances shall the Provider be liable for any claim for (i) indirect, incidental, special or consequential damages, (ii) loss or inaccuracy of data or cost of procurement of substitute goods, services or technology, (iii) compensation for loss of profits, anticipated revenue, savings or goodwill, or (iii) exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to this Agreement, the Order Form, any Schedules or any Services, even if advised of the possibility thereof.
- Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, the liability of the Provider for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from this Agreement shall not exceed the Fees paid or payable by the Client to the Provider under this Agreement in the six (6) months preceding the Loss.
- Reasonableness of Limitations. The Provider, the Client and Users agree that the limitations contained in this Section 12 are reasonable in scope and form an integral part of this Agreement.
Indemnity by Client. The Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Provider may incur as a result of or in connection with any third-party claim relating to or resulting from (a) any negligence, willful misconduct or breach by the Client or its Users of the Client’s or its Users obligations under this Agreement, including its obligation to comply with all Applicable Law; or (b) any third party claim that the Client’s use of any Client Data infringes, misappropriates or otherwise violates the intellectual property rights of any third-party.
- Term. The term of this Agreement (“Term”) shall commence on the Effective Date or date of acceptance of these Terms set out in the Order Form, and will continue for any term identified as a Free Trial period, and if not terminated prior to expiry of the Free Trial period, then the length of time described in the Order Form as the Monthly Initial Term or the Annual Initial Term, as applicable (each an “Initial Term”). Thereafter, this Agreement will automatically renew for successive terms equal to the length of time of the Initial Term (“Renewal Terms”), unless terminated in accordance with this Agreement.
- Prior to Renewal. Either party may terminate this Agreement by providing written notice to the other party at least thirty (30) days prior to the end of the then current term. For greater certainty, such notice may be given prior to the end of such current term, but will only take effect at the end of the then current term.
- Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within thirty (30) days after being given notice of the breach from the non-breaching party.
- Insolvency. Either party may terminate this Agreement, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.
- Early Termination. If this Agreement is terminated pursuant to Section 14.2 prior to the end of such current term, the Client shall pay to the Provider, as liquidated damages and not a penalty, an amount equal to the total monthly Fees (as described in the Order Form) multiplied by the number of months remaining prior to the end of such current Term.
- Termination and Suspension of Users. Notwithstanding any provision of these Terms, the Provider reserves the right, in its sole discretion, without any notice or liability to the Client or any User, to (a) terminate a User’s license to use the Software, or any portion thereof; (b) block or prevent a User’s future access to and use of all or any portion of the Software or the Website; (c) change, suspend, or discontinue any aspect of the Software or the Website; and (d) impose limits on the Software or the Website (e) .
- Upon Termination or Suspension of the Subscription, all the Client’s Data will be removed from the servers within 30 days by the Provider.
- Definition of Confidential Information. “Confidential Information” means all information, documentation, databases, software, designs, drawings, pictures or other images (whether still or moving), sounds and content disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information includes Client Data. The Provider’s Confidential Information includes the Software, the Services and the terms and conditions of this Agreement. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was in the lawful possession of or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third-party without breach of any obligation owed to the Disclosing Party; or (d) is independently developed by the Receiving Party, which independent development can be shown by written evidence.
- Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, by any court of competent jurisdiction or by any regulatory or administrative body to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.
- Destruction. The Receiving Party, upon the request of the Disclosing Party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives to return, all copies of Confidential Information belonging to or provided by the Disclosing Party or destroy such copies as directed by the Disclosing Party and certify their destruction.
- Indemnity. The Receiving Party agrees to indemnify and hold the Disclosing Party harmless from and against all loss or damage or any kind and nature suffered by the Disclosing Party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Section 15.
- Publicity. Neither party will issue any press release or other public statement disclosing the existence of this Agreement or any other information relating to this Agreement, the other party, or the transactions contemplated hereby, without the prior written consent of the other party. Notwithstanding this provision, each of the Client and the Provider shall be permitted to use the other party’s trademarks (registered and unregistered), trade names, designs, logos and/or other indicia of origin (“Marks”) for use on the other party’s website(s), social media accounts or in their retail location(s) (as applicable) solely for the purpose of indicating that the Client is a customer of the Provider. Further, the Provider’s Marks may appear on receipts or other documents printed or otherwise generated from the Software.
There are certain features of the App that do not require paid subscriptions and can be availed for free but however the following limitations apply to the free version of the App:
- The Free version of the App is not advertisement free and the Provider ,may run various Ads in different parts of the free version apps..
- The free version App shall store the transaction history ( Daily transactions like Orders, Payments, etc ) only for the preceding twelve (12) months and not from the beginning of the time. The transaction data from the beginning of the time shall be automatically deleted by the system. However if the client upgrades to the paid subscription then the App shall no longer delete the data that is already stored but at the time of upgrade only preceding 12 months data will be in store in the system of the Provider.
- The Limeorder’s logo on all the printed receipts IS NOT REMOVABLE in the free versions.
- Free version has its own limitations that may change from time to time.
- The Provider may at its sole discretion and in compliance to its any existing or amended policy decide not to provide the free version of the App at the time of the Sign up and the Provider shall not be responsible to give explanations or be liable for its decision. The Provider has in place a strong security check which can trace the users trying to create free version accounts by using different email ids. If the Provider finds any user doing this then it shall block all the accounts of that user and restrict its use of the free version accounts. Only one free version account can be created by a user and if the client tries to use different email addresses for different free account sign ups, the provider shall stop the use of all such accounts whether at the time of sign up or after the sign up, whenever it comes into the notice of the Provider.
- Free version has no support and the Client can use the user manuals and video tutorials provided in the LimeOrder’s website.
- The Provider can stop free service accounts or convert it to paid model at any time with a 30 days notice to the Client.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. This Agreement shall be treated, in all respects, as an Ontario contract.
- Survival. Any terms and conditions of this Agreement which by their nature extend beyond termination of this Agreement shall survive such termination. This includes, without limitation Section 11 (Intellectual Property, Client Data and Privacy) (but not section 11.3 (License from Client to Provider)), Section 12 (Disclaimer and Limitation of Liability), Section 13 (Indemnification), Section 14.5 (Effect of Termination), Section 15 (Confidentiality) and applicable provisions of Section 17 (General).
- Dispute Resolution.
- This Section 17.3 sets out the process (the “Dispute Resolution Process”) for resolving all disputes, issues, controversies, and/or claims arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement (“Disputes”).
- Either party may initiate the Dispute Resolution Process by sending a notice of a Dispute (a “Dispute Notice”) to the other party. Upon delivery of a Dispute Notice to either party, each party shall appoint a knowledgeable, responsible, non-lawyer, management representative to meet and negotiate in good faith with the representative of the other party in order to resolve the Dispute.
- All Disputes that are not resolved within thirty (30) days following delivery of a Dispute Notice shall be arbitrated and finally resolved, with no right of appeal, even on questions of law, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Ontario, Canada. The language of the arbitration shall be English.
- Notwithstanding anything contained in these Terms to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.
- Relationship. The relationship between the Client and the Provider will at all times be one of independent contractor and nothing herein shall be construed as implying an employment, partnership, or joint venture relationship. The Provider is not an employee of the Client and is not entitled to any benefits that the Client may provide to its employees. Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter into any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in this Agreement.
- Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which the Client or the Provider is required to perform under this Agreement, the Order Form, or a Schedule (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Client or the Provider, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party). The following events are deemed to be outside of a party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, epidemics, pandemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonably foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. The parties agree that an event shall not be considered to beyond reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the Order Form or Schedule would have put in place contingency plans to either materially mitigate or negate the effects of such event. A party seeking to rely on this Section must (i) notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available.
- Non-Solicitation. During the Term and for a period of one (1) year following termination of this Agreement for any reason, neither party may, directly or indirectly, (a) solicit for employment any employee or independent contractor of the other party who was materially involved in the performance of this Agreement; or (b) induce or attempt to induce any employee or independent contractor of the other party who was materially involved in the performance of this Agreement to leave his or her employ or contract, as applicable, with such other party. The foregoing will not prevent either party from hiring any employee or independent contractor who responds to a job posting or advertisement that is not specifically targeted at such employee or independent contractor.
- Currency. Unless otherwise specified in the Order Form, all references to amounts of money in this Agreement refer to United States Dollar (USD) currency.
- Notices. Notices that we give to you (other than notice of amendment of this Agreement), may be provided in any of the following ways. First, we may email the Administrator(s) at the contact information provided in the Order Form or any Registration Data. Second, we may post a notice on the Provider’s website. It is your responsibility to periodically review the Website for notices. The Client may provide notice to the Provider by emailing the Provider at info@LimeOrder.com.
- Successors and Assigns. This Agreement shall enure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Provider may assign this Agreement, the Order Form or any Schedule or any obligation hereunder, in its sole discretion. The Client may not assign this Agreement, the Order Form or any Schedule without the prior written consent of the Provider.
- Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
- Entire Agreement. This Agreement, the Order Form and the Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.
- Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
- Fully Negotiated Agreement. The Client and the Provider acknowledge and agree that all of the provisions of this Agreement have been fully negotiated, that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.
- Language. The parties have required that this Agreement and all deeds, documents and notices relating to this Agreement be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.
- Modification of Terms. The Provider may modify this Agreement at any time by (a) posting a notice on the Website or on the Software; or (b) by e-mailing the Administrator(s) of the Client. The Provider will also update the “Last Updated” date at the bottom of these Terms. You are responsible for checking these Terms whenever you access or use the Services. By continuing to access or use the Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services. Notwithstanding the foregoing, the information and material on the Website, and the Website, may be changed, withdrawn or removed at any time in the Provider’s sole discretion without notice.SCHEDULE “A”
SERVICE LEVEL AGREEMENT
THIS SERVICE LEVEL AGREEMENT (“SLA”) forms a part of the Order Form and the Terms (collectively, the “Agreement”), as a Schedule thereto. Capitalized terms used in this SLA but not defined in this Schedule are used as defined in the Agreement.
- Support Obligations. During the Term, the Provider will provide support, relating to the Software, to the Client and the Users, in accordance with this SLA (each request for support, a “Software Request”). During the Warranty Period, the Provider will provide support and maintenance to the Client and the Users, in accordance with this SLA and the Provider’s Warranty Certificate, relating to the Hardware for which the Provider covers and offers the warranty (“Provider Hardware”), (each request for support and maintenance, a “Hardware Request”). For greater certainty, if (a) there is no Warranty Certificate or warranty coverage provided for the Hardware purchased, no support and maintenance requests for such Hardware purchased should be submitted to the Provider; or (b) the warranty is being provided by a third-party manufacturer of the Hardware, all support and maintenance requests should be directed to such third-party manufacturer or as otherwise directed in the third-party manufacturer’s Warranty Certificate, as the Provider shall not offer any support or maintenance on or related to any such Hardware. Each Software Request or Hardware Request shall be referred to as a “Request” and collectively they shall be referred to as “Requests”.
- Helpdesk Support for Paid Subscriptions. The Client and the Users may submit Requests by e-emailing the Provider at support@LimeOrder.com . If there are any changes to the numbers or the email address stated above, the Provider shall notify the Client as indicated in the Notice section of the Agreement.
- Support Hours. Subject to the response timetable below, support for the Software or the Provider Hardware will be available during the business hours.
- Updates to Software. During the Term, the Provider will supply to the Client, at no extra charge, any improvements or modifications to the Software that the Provider generally makes available as a major release, minor release and any essential updates, enhances and fixed (“Updates”). Additional configuration and training services can be purchased from the Provider at an additional cost.
- Training. During the Term, the Provider will provide online training materials through its website, the Services or as otherwise provided to the Client and its Users by the Provider, including without limitation, frequently asked questions (FAQs), user Manuals and/or training videos.
- Additional Services. If at any time during the Term the Client requires additional services not covered by this SLA or the Agreement, including without limitation, assistance setting up or implementing the Software, importing any Client Data, completing data entry, further training, etc., the Provider, in its sole discretion, may provide such additional services for an additional cost.
- Extended Warranty. If so requested by the Client, upon the conclusion of the Warranty Period of the Hardware (i.e. the Provider Hardware or third-party manufacturer warranty provided Hardware), the Provider may, in its sole discretion, provide an extended warranty. The warranty support and services, duration, cost and any additional terms and conditions associated with such extended warranty shall be negotiated in good faith between the parties at the time of purchase.
- Limitations on Support. The Provider’s obligation to provide support and/or maintenance is contingent upon proper use of the Software and Hardware, as applicable, and full compliance with the Agreement and this SLA. Moreover, the Provider shall be under no obligation to provide maintenance and support should the maintenance and/or support be required due (i) to failure to operate the Hardware or Software within any recommended system requirements provided with the Hardware or Software and/or any part thereof; (ii) any modification or attempted modification of the Hardware or Software (or any part thereof) by the Client, its Users or any third-party; or (iii) the Client’s or its Users failure to implement Hardware or Software changes or upgrades recommended by the Provider or, for the Hardware, as otherwise instructed by the third-party manufacturer or on the Hardware.
These Terms And Conditions were updated on 30 December 2020.