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LIGHTSPEED SERVICE AGREEMENT

THIS SERVICE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN Lightspeed POS, INC. ("LIGHTSPEED") AND THE INDIVIDUAL OR LEGAL ENTITY ("CUSTOMER") USING OR ACCESSING THE LIGHTSPEED PRODUCT WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION OR A FREE TRIAL. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE AGREEING TO THESE TERMS. BY AGREEING TO THESE TERMS OR USING THE LIGHTSPEED PRODUCT, WHICHEVER OCCURS EARLIER, CUSTOMER IS AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

  • 1. Subscription to Lightspeed OnSite.
    Customer hereby agrees to license the Lightspeed product(s) (each a “Product”) identified in the subscription documentation (i.e., the quote or invoice), or the web form in the case of a Product trial (“Subscription”) exchanged by the parties in conjunction with Customer's acceptance of this Agreement. The specific Products and the fees payable with respect to such Products are set forth in the Subscription. Each Product may include updates, Internet-based services, support services, applications or documentation, each of which is subject to the terms of this Agreement as applicable. Lightspeed may add to, change or discontinue any component of the Products at any time; provided however, that no such change shall materially increase Customer's obligations or materially decrease Customer's entitlements under this Agreement. Customer is responsible for all actions taken under its Lightspeed account credentials, regardless of whether such actions are taken by Customer or a third party. Lightspeed is not liable for any loss or damage arising from any unauthorized use of Customer’s account.
  • 2. Grant of License.
    During the Term (as defined below), Lightspeed grants Customer a limited, non-exclusive, non-transferable, non- sublicensable, revocable license to use, and, in the case of Lightspeed OnSites that permit additional Users (as set forth in the Product specific terms below), to allow such Users to use, the Products on the terms set forth in this Agreement. Customer agrees that all rights, title and interest in and to all the intellectual property right in the Products, and all modifications, extensions, scripts and other derivative works of the Products provided or developed by Lightspeed are owned exclusively by Lightspeed or its licensors. All rights not granted to Customer in this Agreement are reserved by Lightspeed.
  • 3. License Restrictions.
    Customer and any Users shall not (and shall not allow any third party to): (i) decompile, disassemble, or otherwise 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; (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; or (xi) use the Products in any way that is contrary to applicable local, state/provincial, federal and foreign laws, including without limitation those relating to privacy, 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 documentation and materials.
  • 4. Term of Agreement.
    The "Initial Term" shall mean the number of full calendar months in the term as specified in the Subscription beginning on the date specified in the Subscription ("Activation Date"). Upon expiration of the Initial Term and unless otherwise stated in the Subscription, this Agreement will automatically renew on a yearly basis (each a “Renewal Term”, 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 thirty days prior to the end of the Initial Term or then-current Renewal Term, as applicable. 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 Subscription. Except as specified in Section 11.1 below, Customer may not terminate this Agreement prior to the expiration of the Initial Term. Following expiration of the Initial Term, Lightspeed may increase the fees payable by Customer under this Agreement, upon not less than 30-days' written notice.
  • 5. Fees and Payment.
    Customer shall pay Lightspeed the annual and/or monthly fees (“Fees”) specified in the Subscription, in accordance with the timing and currency specified in the Subscription. All payments by Customer to Lightspeed under this Agreement shall be non-refundable, and made via the automatic payment method specified by Customer in the Subscription, or as otherwise agreed by the parties. Customer shall undertake any additional actions reasonably requested by Lightspeed to implement the foregoing automated fee payment process. Any amounts past due from Customer under this Agreement shall accrue interest at a rate which is the lesser of two percent (2%) per month or, if less, the maximum rate allowable by law. Any applicable federal, state, provincial, or other goods and services or sales taxes will be added to fees owing pursuant to this Agreement.
  • 6. Confidential Information.
    Lightspeed and Customer (and its Users) shall each retain in confidence all information received from the other party pursuant to or in connection with this Agreement 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 the terms and during the term of 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 immediate 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 either of the parties, or (iv) information required to be disclosed pursuant to applicable law. The foregoing shall also not prevent Lightspeed from using Customer's name and/or trademark(s) in its marketing and training materials or Customer data on an aggregate, anonymized basis.
  • 7. Customer's Representations and Indemnification.
    Customer represents and warrants that currently and throughout the Term (i) it is fully authorized to enter into this Agreement and that Customer and any Users are fully authorized to utilize the Products, (ii) Customer and any Users are and will remain in compliance with all applicable laws and regulations with respect to its and their activities related to this Agreement, and (iii) if Customer or any of its Users imports lists into the Products for the purpose of sending electronic communications (e.g., emails, texts) to such list, or otherwise collects electronic addresses for the purpose of sending electronics messages, then Customer warrants that each person on such list has previously opted-in to receive promotional electronic communications from Customer and that the content of such communications by Customer will comply with applicable laws and regulations. Customer shall indemnify, defend and hold harmless Lightspeed and its officers, employees, agents and affiliates 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, employee, independent contractor, or affiliate thereof, of any representations, warranties or other obligations set forth in this Agreement. Customer and each of its Users agree to comply with all Lightspeed policies and all laws, rules and regulations relating to the use of the Products. Any violation of this section may result in loss of features, up to and including termination of Customer’s account. Customer will indemnify Lightspeed for any costs, fines or damages incurred by Lightspeed due to Customer's or its User's failure to comply with this section.
  • 8. Privacy.
    Lightspeed uses and protects Customer information, including information transmitted via the Products, in accordance with the Lightspeed Privacy Policy, located at [www.lightspeedpos.com/privacy-policy], and hereby incorporated by reference.
  • 9. Submissions.
    Customer agrees that any materials that it provides to Lightspeed, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information regarding Lightspeed or the Products, whether such materials are provided in email, feedback forms, or any other format, shall belong exclusively to Lightspeed, without any requirement to acknowledge or compensate Customer.
  • 10. Third Party Services.
    Customer may decide to enable, access or use any Third Party Services (as defined below). Customer agrees that access and use of such Third Party Services shall be governed solely by the terms and conditions of such Third Party Services, and that Lightspeed is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle data (including Customer’s 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 Lightspeed. Any use by Customer of Third Party Services shall be solely 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. “Third Party Services” means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which one or more Products link to, or which Customer may connect to or enable in conjunction with one or more Products.
  • 11. Termination and Suspension.
    • 11.1. Termination for Breach. 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. Notwithstanding the foregoing, if Customer is in breach of any material provisions of this Agreement, including the license restrictions of Section 3, the payment terms of Section 5, or the confidentiality restrictions of Section 6, then Lightspeed may immediately suspend or terminate Customer's use of the Products. Any such suspension shall not relieve Customer of any of its obligations under this Agreement or entitle Customer to any refund of payments previously made.
    • 11.2. Suspension. Lightspeed may suspend Customer’s access to the Products immediately without notice if Lightspeed, in its sole discretion, believes: (1) such suspension is required by law; (2) Customer has breached this Agreement; or (3) there is a security or privacy risk to Customer. 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.
    • 11.3. Effect of Termination. 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 other remedies available to it, including injunctive relief. Sections 3, 5, 6, 7, 9-13, and 15-19 shall survive termination of this Agreement, along with any other provisions that are intended by their terms to survive.
  • 12. Limitation of Liability.
    LIGHTSPEED AND ITS AFFILIATES’ 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. EXCEPT WITH RESPECT TO (i) ANY WILLFUL OR DELIBERATE INFRINGEMENT OR MISAPPROPRIATION BY CUSTOMER OF ANY OF LIGHTSPEED'S, ITS AFFILITIATES’ OR SUPPLIERS' INTELLECTUAL PROPERTY RIGHTS, AND (ii) CUSTOMER'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY 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. 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.
  • 13. Disclaimer of Warranties.
    CUSTOMER ACKNOWLEDGES THAT (i) LIGHTSPEED CANNOT GUARANTEE THE RESULTS GENERATED THROUGH THE PRODUCTS, OR THAT THE PRODUCTS WILL BE CONTINUOUSLY AVAILABLE FOR USE WITHOUT INTERRUPTION, AND (ii) THE PRODUCTS ARE PROVIDED "AS-IS", ON AN “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTION, WARRANTY OR CONDITION OF ANY KIND, AND LIGHTSPEED HEREBY DISCLAIMS ALL CONDITITIONS, 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, (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.
  • 14. Assignment and Contractors.
    Customer may not assign any of its rights or obligations under this Agreement without Lightspeed's prior written consent. 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 assigns. Lightspeed shall be free to perform all or any part of this Agreement through one or more subcontractors.
  • 15. Governing Law, Venue and Attorneys' Fees.
    This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the parties agree to submit to the exclusive jurisdiction of and venue in the courts of the Province of Quebec, in the judicial district of Montreal. Each party hereby waives all defenses of lack of personal jurisdiction and forum nonconveniens in connection with any action brought in the foregoing courts. If Lightspeed prevails in any action or proceeding (including for collection) under this Agreement, then Lightspeed shall be entitled to recover from Customer, in addition to all other relief, its reasonable attorneys' and other experts' fees and expenses incurred with respect to such action or proceeding.
  • 16. Export Compliance and Use Restrictions .
    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 or regulations 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.
  • 17. Severability, Force Majeure, Entire Agreement, Amendment.
    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. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies, 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. This Agreement 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. This Agreement may not be amended or waived, except pursuant to a written document signed by Customer and a duly authorized officer of Lightspeed. Any terms or conditions appearing on the face or reverse side of any purchase order, acknowledgment, or confirmation that are different from or in addition to those set forth in this Agreement shall not be binding on the parties, even if signed and returned.
  • 18. Miscellaneous.
    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. The provisions of this Agreement shall not be construed against either party by virtue of their authorship. The parties acknowledge that they require that this Agreement be drawn up in the English language only. Les parties reconnaissent qu’ils ont exigé que la présente convention soit rédigée en langue anglaise seulement.
  • 19. Provisions Applicable to Specific Lightspeed OnSites.
    • 19.1. Lightspeed OnSite.
      • a. Users. The Lightspeed OnSite Product may be utilized by additional, specifically-identifiable devices accessing the Product (“Users”) as specified in the Subscription. Customer shall be responsible for managing User access to Products.
      • b. License to Customer. The Lightspeed OnSite Product is licensed on a per copy per device basis. Customer may install one copy of the Lightspeed OnSite Product on one device. That device is the “licensed device.” Customer may only use one copy of the software on the licensed device at a time. Customer may not transfer the Lightspeed OnSite Product to a third party.
    • 19.2. Lightspeed POS.
      • Users. The Lightspeed POS Product may be utilized by additional employees/users on a concurrent- user basis (“Users”) as specified in the Subscription. Customer shall authorize access to and assign unique passwords and user names to the number of Users procured by Customer on the Subscription. User logins are for designated Users and cannot be shared by more than one User but any User login may be reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User’s passwords and user names.
      • License from Customer. Customer hereby grants Lightspeed a royalty-free, limited, non-exclusive right, authorization and license to use the name, logos, trademarks, copyrights and related intellectual property of Customer, its Users, or its licensors, solely as necessary to fulfill the purposes contemplated in this Agreement.
    • 19.3. Web Store.
      • Users. The Lightspeed Web Store or eCommerce Product may be utilized by additional users (“Users”).
      • License from Customer. Customer hereby grants Lightspeed a royalty-free, limited, non-exclusive right, authorization and license to use the name, logos, trademarks, copyrights and related intellectual property of Customer, its Users, or its licensors, solely as necessary to fulfill the purposes contemplated in this Agreement.
      • Customer’s Site. Customer will retain ownership of the URL and/or domain name applicable to any website utilized by Customer in connection with Lightspeed’s Web Store or eCommerce Product ("Customer's Site").
      • Customer's Representations and Warranties. Customer represents and warrants that currently and throughout the Term, Customer and any Users are fully authorized to publish, and authorize Lightspeed to publish, 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.
    • 19.4 Hardware
      • a. Purchase. If Customer agrees to purchase point-of-sale equipment and supplies (“Hardware”), Customer shall pay the purchase price set forth in the Subscription, including shipping/handling fees, duties, brokerage fees, and any applicable sales, use, harmonized, valued-added or similar taxes. Hardware will be shipped to Customer upon due receipt of payment. All sales of Hardware are final. 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 19.4 will be inapplicable.
      • b. Limited Warranty. In addition to any applicable manufacturer’s warranty, Lightspeed warrants to Customer that new Hardware will be free from defects in workmanship and materials 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 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.
      • c. Exclusive Remedy. REPAIR OR REPLACEMENT ARE THE EXCLUSIVE REMEDY PROVIDED IN CONJUNCTION WITH THE PURCHASE BY CUSTOMER OF THE HARDWARE. LIGHTSPEED, ON BEHALF OF ITSELF, ITS AFFILIATES, 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.

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