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© 2015. SimplicityPOS by Pay(q)r LLC
Terms of Service
BY ACCEPTING THESE EVALUATION TERMS OF SERVICE (THIS AGREEMENT), EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM CUSTOMER SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SimplicityPOS (a Pay(q)r, LLC company) PROPERTY (AS DEFINED BELOW). This Agreement, by and between Customer and Pay(q)r, LLC, an Ohio Limited Liability Corporation (Payr), will be effective as of the date you accept this Agreement as set forth above (the Effective Date) and will govern Customers use of the Payr Property during the Evaluation Period (as defined below). Payr reserves the right, at its sole discretion, to change or modify portions of this Agreement at any time without further notice. If Payr makes any such material changes or modifications, Payr will notify Customer through a pop-up notice, e-mail or other reasonable means. Customers continued use of the Payr Property after any such changes or modifications constitutes acceptance of such changes or modifications. Each of Payr and Customer may be referred to herein individually as a Party or collectively as Parties.
1. Evaluation license grant
Subject to the terms and conditions of this Agreement, Payr hereby grants to Customer a non-exclusive, revocable, non-sublicenseable, non-transferable right, during the Evaluation Period, to (a) install and run Payr proprietary software (in object code format only) provided by Payr to Customer (the Payr Software) on Customers internal system(s) and (b) use Payr application program interface and other related materials provided or made available by Payr to Customer (collectively, the Payr API) solely to access Customers data from Customers internal system(s) (the Customer Data), in each case, solely for Customers internal research purposes to determine whether Customer desires to enter into a definitive agreement with Payr to use the Payr Property after the Evaluation Period (the Definitive Agreement). Customer shall not use the Payr Property for any purpose other than the purposes expressly set forth herein without Payr prior written consent. Customer may not, and may not permit or authorize any third party to, (i) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent such restrictions are expressly prohibited by applicable statutory law), modify or alter any part of the Payr Property, or (ii) otherwise use the Payr Property on behalf of any third party.
2. Ownership; Reservation of Rights
Customer acknowledges and agrees that, as between the Parties, Payr retains all right, title and interest in and to the Payr API and Payr Software, and any other materials provided by Payr to Customer hereunder, including any copies thereof, by whoever produced (collectively, the Payr Property) and all intellectual property rights therein. Pay grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Payr Property. Customer shall acquire no right, title, or interest in and to the Payr Property or any copies thereof (by whoever produced) other than the limited licensed rights expressly granted under this Agreement. Customer will not remove, obscure, or alter any intellectual property rights notices relating to the Payr Property. Notwithstanding the foregoing, Customer owns the Customer Data. Customer hereby grants Payr a non-exclusive right to copy, modify, distribute, display and otherwise use the Customer Data solely in connection with performing services on behalf of Customer hereunder.
3. No cost evaluation
During the Evaluation Period, Payr will not charge Customer for its authorized use of the Payr Property. If Customer wants to continue using the Payr Property after the Evaluation Period, the Parties must enter into the Definitive Agreement (which, for the avoidance of doubt, may take the form of a purchase order signed by authorized representatives of both Parties).
This Agreement will commence on the Effective Date and continue until the earlier of (a) Customer and Payr entering into the Definitive Agreement and (b) a Party terminating this Agreement as set forth herein. Either Party may terminate this Agreement at any time upon five (5) days written notice to the other Party. Upon the termination of this Agreement, all license rights with respect to the Payr Property shall immediately terminate, and Customer shall (a) cease use of the Payr Property, (b) uninstall the Payr Software, and (c) return or destroy, in Payr sole discretion, all copies or other embodiments of such Payr Property in whole or in part and all of Payr Confidential Information under Customers control. This Section and Sections 5 through 9 of this Agreement shall survive termination of this Agreement.
Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (Feedback) to Payr with respect to the Payr Property. Payr shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants to Payr a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
6.1. Definition of Confidential information
Confidential Information means, subject to the exceptions set forth in Section 6.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the Discloser) to the other party (the Recipient) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Disclosers business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 6.2 hereof. For the avoidance of doubt, the Payr Property is Confidential Information of Payr.
6.2. Exceptions to Confidential Information
Confidential Information shall not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known in the trade other than through the Recipients failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
6.3. Use and Disclosure of Confidential Information
The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and shall never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipients employees who are required to have access to such Confidential Information in connection with the Permitted Purpose, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient shall use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement. Notwithstanding anything to the contrary herein, in the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient shall first give written notice of such requirement to the Discloser, and shall permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
CUSTOMER ACKNOWLEDGES AND AGREES THAT CERTAIN THIRD-PARTY INTEGRATION SOFTWARE (SUCH AS THE INTEGRATION SOFTWARE OFFERED BY MICROS, POSITOUCH AND ALOHA) (THE INTEGRATION SOFTWARE) MAY BE NECESSARY TO EXERCISE CUSTOMERS LICENSE RIGHTS HEREUNDER, AND CUSTOMER SHALL BEAR ALL COSTS RELATED THERETO, INCLUDING WITH RESPECT TO OBTAINING A LICENSE TO USE SUCH INTEGRATION SOFTWARE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR THE SELECTION OF ANY SUCH INTEGRATION SOFTWARE. PAYR IS NOT RESPONSIBLE FOR ANY FAILURE OF ANY OF THE INTEGRATION SOFTWARE OR ANY OTHER THIRD-PARTY SOFTWARE, HARDWARE OR PRODUCTS. THE PAYR PROPERTY IS PROVIDED ON AN AS-IS BASIS AND PAYR MAKES NO AND DISCLAIMS ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THOSE OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. PAYR DOES NOT WARRANT THAT THE PAYR PROPERTY IS ERROR-FREE OR THAT OPERATION OF THE PAYR PROPERTY WILL BE SECURE OR UNINTERRUPTED.
8. Limitations of liability
REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES OF ANY KIND ARISING FROM THIS AGREEMENT OR CUSTOMERS USE OF THE PAYR PROPERTY DURING THE EVALUATION PERIOD, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSION OF LIABILITY SHALL NOT APPLY TO ANY LIABILITY ARISING FROM CUSTOMERS BREACH OF SECTION 1 (EVALUATION LICENSE GRANT).
The terms and conditions of this Agreement are severable. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Customer may not assign this Agreement without Payr prior written consent. Any assignment or attempted assignment otherwise than in accordance with the foregoing sentence shall be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. This Agreement shall be governed by the laws of the State of Ohio without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in Cleveland, Ohio and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the Payr Property will cause irreparable harm and injury to Payr for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Payr shall be entitled to injunctive relief in the event Customer uses the Payr Property in violation of the limited license granted herein or uses the Payr Property in any way not expressly permitted by this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys fees. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.