“Customer”, means any person and/or entity that has purchased the Subscription and has paid the applicable Subscription Fee.
“Subscription Fee”, means a fee stipulated by Pepperi, which shall be paid by the Customer, in order to receive the Subscription for the duration of the Subscription period.
“Services”, means a unique Pepperi solution and retail point-of-sale information system distributed under the trademark “Pepperi”, the implementation of which may include, the supply of certain Software (as described below) as well as the rendering of related Services.
“Software”, means any software (including but not limited to software as a service [SaaS]), utility, tool, or other computer or program code, as well as the related documentation, provided by Pepperi to the Customer in connection with the Services. Software includes software locally installed on the Customer’s systems and web-based software accessed by the Customer through the Internet.
“Named User” shall mean a single named individual who is the Customer’s employee or service provider and authorized by the Customer to use the license, for whom Subscription to the Service has been procured, and who has been supplied user identification and password by the Customer.
“Subscription”, means having the right to (a) use the Software during the period for which the Customer has paid the Subscription Fee (b) receive Software updates from Pepperi as they are made generally available from time-to-time during the Subscription period, and (c) use Pepperi’s online Support site.
If the Customer registers for a free trial, one or more services will be made available to the Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which the Customer registered or are registering to use or (b) the start date of any purchased services ordered by the Customer.
Any data the Customer enters into the services, and any customizations made to the Services by or for the Customer, during the Customer’s free trial will be permanently lost unless the Customer purchases a Subscription to the same services as those covered by the trial, purchase upgraded services, or export such data, before the end of the trial period.
During the free trial the Services are provided “as-is”.
PROTECTION OF CUSTOMER’S DATA
Pepperi shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer’s data. Pepperi shall not (a) modify the Customer’s data, (b) disclose the Customer’s data except as compelled by law or as expressly permitted in writing by the Customer, or (c) access the Customer’s data except to provide the services and prevent or address service or technical problems, or at the Customer’s request in connection with customer support matters. Pepperi might monitor the Customer’s account in order to optimize the performance of its servers, to optimize the operation of its services, and to make sure that the provisions of this Agreement are being followed by the Customer.
The Customer shall (i) be responsible for the Customer’s Named Users’ compliance with the Terms and Conditions, (ii) be responsible for the accuracy, quality and legality of the Customer’s data and of the means by which the Customer acquired the Customer’s data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the services, and notify us promptly of any such unauthorized access or use, and (iv) use the services only in accordance with our guidelines and applicable laws and government regulations. The Customer shall not (a) make the services available to anyone other than the Customer’s Named Users, (b) sell, resell, rent or lease the services, (c) use the services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the services or third-party data contained therein, or (f) attempt to gain unauthorized access to the services or their related systems or networks.
GRANT OF LICENSE
Subject to the limitations and restrictions provided in this Terms and Conditions, Pepperi grants the Customer a limited, non-exclusive, non-sub-licensable, non-transferable, license to install and use the Software provided to the Customer in connection with the Services in accordance with this Terms and Conditions. This Terms and Conditions do not convey to the Customer any interest in or title to the Software, but only limited rights to use the Software solely in accordance with the Terms and Conditions hereunder.
It is hereby clarified that each license cannot be used by more than one designated Named User at all times.
FREE MOBILE APPS
Pepperi provides, free of charge, native mobile applications that allow the Customer to access Pepperi web-based software on iOS, Android, and Windows 8 tablet devices.
Mobile devices must be purchased separately and are not included in the Customer’s Subscription. Pepperi mobile apps may incur data charges with the Customer’s wireless carrier, including roaming charges where applicable. Pepperi mobile apps may collect technical data, including information about application crashes and usage statistics, and may use certain third party libraries or modules. Any such mobile apps offered by Pepperi shall constitute part of the Software, and as such their usage is subject to the terms and conditions of this Agreement.
Pepperi only charges for Pepperi’s web-based software, which includes modules for system and user configuration, data upload and integration, order management, sales management and B2B e-commerce. Therefore, during the Subscription period, Pepperi mobile apps are provided to all of the Customer’s Named Users free of charge. Yet, once the Customer’s Subscription to the Pepperi web-based software expires and is not renewed, all the Pepperi mobile apps installed on devices of the Customer’s Named Users will be disconnected from the Pepperi web-based software.
CHANGES TO THE SITE AND SOFTWARE
Pepperi shall have the right at any time to change or discontinue any aspect or feature of the Software and/or Services, including, but not limited to, content, hours of availability, and equipment needed for access or use.
INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges and agrees that the Software is a proprietary product of Pepperi, protected under national and international intellectual property laws. The Customer further acknowledges and agrees that any and all rights, titles, and interests in and to the Software, including associated intellectual property rights, any patents, patent applications, copyrighted material and trade secrets, and all copies, revisions, modifications, updates and/or upgrades thereto, and all derivative works thereof, whether made by Pepperi, the Customer or on behalf of Pepperi or the Customer, shall remain the sole and exclusive property of Pepperi.
This Terms and Conditions and the license as set forth herein are effective until terminated. The Customer’s rights under this Terms and Conditions and the license will terminate automatically without notice from us if the Customer fails to comply with any of the term(s) of these Terms and Conditions. Upon the termination of these Terms and Conditions and license, the Customer shall cease all use of the Software and destroy all copies, full or partial, of the Software.
DISCLAIMER OF WARRANTIES
The Customer acknowledges and understands that the Software licensed is provided to the Customer “as is” without any warranties whatsoever concerning the installation, use or performance of the software. Pepperi expressly disclaims, and the Customer hereby expressly waives all other warranties, whether express or implied, including warranties of merchantability, fitness for a particular purpose, non-infringement, system integration, non-interference, accuracy, reliability and quality of the Software. Pepperi do not warrant that the Software will meet the Customer’s requirements or that the operation of the Software will be uninterrupted or error-free.
LIMITATION OF LIABILITY
Pepperi is not liable for direct, indirect, incidental, consequential, special, punitive, exemplary, or any other damages (including, without limitation, attorneys’ fees) (collectively, the “Damages”), arising out of the Customer’s use or inability to use the Software. By way of example and not of limitation, Pepperi is not liable for Damages for: (i) loss of revenue, anticipated profits, business, savings, goodwill or data, (ii) any failure of performance, error, omission, denial of service attack, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, and (iii) third party theft of, destruction of, unauthorized access to, alteration of, or use of the Customer’s information, equipment, or property. The Customer specifically acknowledges and agrees that Pepperi is not liable for the conduct of and information supplied by other site users or third parties (including, without limitation, defamatory, offensive or illegal conduct) and that the risk of injury from the foregoing rests entirely with the Customer.
Notwithstanding the above, if Pepperi is found to be liable by a final judicial ruling, Pepperi’s liability to the Customer or to any third party shall be limited to the sums actually paid by the Customer to Pepperi in connection with the Software and/or the services.
The Customer shall indemnify, defend, and hold Pepperi harmless from and against all Damages and liabilities that arise from a third party’s claim resulting from the Customer’s use of the services by violation of this Terms and Conditions or from any violation caused by the Customer of applicable law.
Pepperi’s website may contain links to external websites that are not within Pepperi’s control. If the Customer decides to use any of these external links, the Customer will be connected to a site not covered by Pepperi’s Terms and Conditions. Pepperi is not responsible for the privacy or security practices or the content of such websites.
This Terms and Conditions shall be governed by and construed in accordance with the laws of the State of New York. The parties to these Terms and Conditions submit to the exclusive jurisdiction of the Court of New York, New York.