QSR Automations End User License Agreement

 

This END USER LICENSE AGREEMENT (“EULA”) is a legal agreement between QSR Automations, LLC (“QSR”), with its principal place of business at 2301 Stanley Gault Parkway, Louisville, Kentucky 40223, and you (“Licensee”), an individual person or a single legal entity who has purchased a limited license to use software owned by QSR and/or being provided by QSR. QSR and Client may be referred to in this Agreement, individually, as “Party” and, collectively, as “Parties.”

PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE ACCEPTING, AND/OR BEFORE USING THE SOFTWARE. THIS SOFTWARE IS COPYRIGHTED AND LICENSED. TAKING ANY STEP TO SETUP OR INSTALL THE SOFTWARE CONSTITUTES YOUR CONSENT TO AND ACCEPTANCE OF THIS EULA. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS EULA AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF LICENSEE SHALL BE CONSTRUED AS INFERENCE TO THE CONTRARY. LICENSEE’S USE OF THE SOFTWARE (DEFINED BELOW) IS EXPRESSLY MADE CONDITIONAL ON LICNESEE’S CONSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SOFTWARE.

QSR may revise and/or update this EULA from time to time, without notice. You may access the most current version of this EULA at any time by going to https://www.crunchtime.com/legal. By continuing to access or use the Software after any changes to this Agreement, Licensee agrees to be bound by the most current EULA.

1. DEFINITIONS. For purposes of this EULA, the following terms shall have the meanings described below:

1.1 “Software” shall mean the computer software programs owned by QSR and any software programs made generally available to QSR’s clients by QSR.

1.2 “Documentation” shall mean the operating, training, and reference manuals relating to the use of the Software.

1.3 “Site” shall mean each individual establishment owned and/or operated by Licensee, not Licensee as a whole. If Licensee owns and/or operates multiple establishments at a single address, each individual establishment shall be considered a separate Site.

1.3 “Upgrades” shall mean new versions or new releases of the Software, including any error corrections. Upgrades do not include separately priced or separately marketed QSR software, even if such QSR software is designed to interface with the Software licensed under this EULA.

1.4 “Use” or “Using” shall mean to access, install, download, copy, or otherwise benefit from using the functionality of the Software in accordance with the Documentation and the terms and conditions of this EULA. If Licensee does not agree to the terms and conditions of this EULA, Licensee may not Use the Software.

2. SOFTWARE LICENSE. As long as Licensee complies with the terms of this EULA, QSR grants Licensee a non-exclusive, non-transferable limited license to Use the Software only in a single Site for the purposes described in the Documentation. Licensee may only install and Use a copy of the Software on compatible computers as described in the Documentation.

3. UPGRADES. Upgrades are made available to Licensee if Licensee is currently participating in “QSR Software Maintenance”, a fee-based service offered by QSR which makes available regular Software updates and related Documentation based on QSR’s published release cycle. End User’s failure to pay annual Software Maintenance fees will result in the loss of QSR support services via phone or email, the ability to upgrade to the latest major version software release including enhancements and defect resolutions, and related Documentation based on QSR’s published release cycle. Should Licensee wish to purchase Upgrades without participating in QSR Software Maintenance, QSR may make available such Software Upgrade at then-current pricing. To use any Upgrade to the Software, Licensee must first have an existing and valid license for the Software, and after upgrading the Software, Licensee may no longer Use the product that formed the basis for Upgrade eligibility. Licensee acknowledges that any obligation QSR may have to support previous versions of the Software may be ended (in QSR’s sole discretion) upon availability of an Upgrade, whether Licensee chooses to implement the Upgrade or not.

4. BACKUP COPY. Licensee may make one (1) backup copy of the Software, provided the backup copy is not installed on any computer or Used (except for purposes of disaster recovery). All backup copies must contain all of the same copyright, patent, and other intellectual property markings that are contained on or in the original copy of the Software.

5. TITLE. The Software is the intellectual property of and is owned by QSR and/or its suppliers, and title to the same is not transferred to Licensee by this EULA or otherwise. The structure, organization, and code of the Software are the valuable trade secrets and confidential information of QSR and/or its suppliers. The Software is protected by copyright, including without limitation, by United States Copyright Law, international treaty provisions, and applicable laws in the country in which it is being used. Licensee acknowledges that QSR and/or its suppliers retain the ownership of all patents, copyrights, trade secrets, trademarks, and other intellectual property rights pertaining to the Software and that QSR’s and/or its suppliers’ ownership rights extend to any images, photographs, animations, videos, audio, music, text, and applets incorporated into the Software. Licensee shall take no actions that, directly or indirectly, may adversely affect QSR’s and its suppliers’ intellectual property rights in the Software. This EULA does not grant Licensee any rights in connection with any trademarks or service marks of QSR or its suppliers. All rights not expressly granted herein are reserved by QSR.

6. REVERSE ENGINEER AND DERIVATIVE WORKS. Unless expressly permitted by QSR in writing, Licensee agrees not to alter, merge, modify, adapt, or translate the Software or Documentation or any part thereof. Licensee also agrees not to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software, or disclose any of the foregoing. Licensee may not use the Software or Documentation, or disclose the Software or Documentation to any third party who may use the Software or Documentation, to create any software which is substantially similar to the expression of the Software.

7. RESTRICTIONS. Licensee may not rent, lease, lend, sublicense, assign, sell or distribute the Software, or otherwise authorize all or any portion of the Software to be copied onto another user's computer. Licensee may not, directly or indirectly knowingly take any action that would cause the Software to be placed in the public domain.

8. PRODUCT CHANGES. QSR reserves the absolute right, in its sole discretion, to discontinue or phase out any QSR product which is or may become a part of this EULA, with or without notice to Licensee.

9. DATA. Licensee agrees to indemnify and hold harmless QSR and its affiliates, directors, officers, employees, agents, independent contractors and counsel from and against all losses, costs and expenses (including attorneys’ fees) from any claim by any third party arising from the use or distribution of data Licensee has gathered from such third party through the Software or the Use of the Software.

10. WARRANTY DISCLAIMER. LICENSEE IS SOLELY RESPONSIBLE FOR THE ACCURACY AND ADEQUACY OF THE SOFTWARE FOR LICENSEE’S INTENDED USE. THE SOFTWARE IS BEING DELIVERED TO LICENSEE "AS IS". QSR AND ITS SUPPLIERS DO NOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY USING THE SOFTWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW, QSR AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE) AS TO ANY MATTER, INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, QUIET ENJOYMENT, INFORMATION OR CONTENT ACCURACY, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, LACK OF VIRUSES, FITNESS FOR ANY PARTICULAR PURPOSE, AND THE PROVISION OR FAILURE TO PROVIDE SUPPORT SERVICES. FURTHER, QSR AND ITS SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT IT WILL OPERATE WITHOUT INTERRUPTION. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE TO LICENSEE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QSR, ITS DISTRIBUTORS, AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN OR REQUIRED UNDER LAW. LICENSEE WILL INDEMNIFY AND HOLD HARMLESS QSR, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS AND COUNSEL FROM AND AGAINST ALL LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEY’S FEES) RESULTING FROM OR ARISING OUT OF ANY THIRD PARTY CLAIM TO THE EXTENT BASED UPON THE INACCURACY OF INFORMATION OR CONTENT CONTAINED IN THE SOFTWARE OR THE INADEQUACY OR FAILURE OF THE SOFTWARE.

11. LIMITATION OF LIABILITY. QSR SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY MISUSE, INCORRECT INSTALLATION OR MAINTENANCE, OR USE BY UNTRAINED PERSONNEL EMPLOYED BY OR OTHERWISE AFFILIATED WITH LICENSEE OF THE SERVICE(S) OR IMPROPER ENTRY OF DATA IN CONNECTION WITH THE SERVICE(S) OR ANY EXTERNAL ENVIRONMENTAL CONDITIONS THAT MAY AFFECT THE PERFORMANCE OF THE SERVICE(S). QSR, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND SHAREHOLDERS SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS AND GOOD WILL) OR PUNITIVE DAMAGES HOWEVER CAUSED OR UPON ANY THEORY OF LIABILITY WHATSOEVER ARISING OUT OF OR RELATING TO THIS EULA OR ITS PERFORMANCE HEREUNDER EVEN IN THE EVENT OF DEFAULT, TORT (INCLUDING THE NEGLIGENCE OF QSR), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY BY ANY OF THE FOREGOING, AND EVEN IF ANY OF THE FOREGOING HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR ANY DAMAGES TO THE OTHER EVER EXCEED THE AMOUNT OF FEES LICENSEE HAS PAID TO QSR DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD OF THE TERM, IRRESPECTIVE OF THE FORM OF ACTION OR THE LEGAL THEORY UPON WHICH THE UNDERLYING CLAIM MAY BE BASED.

12. SUPPORT SERVICES. QSR may, in its sole discretion, provide Licensee with support services related to the Software. Use of support services is governed by the policies and programs described in the Documentation or in other written materials from QSR.

13. TERMINATION; SURVIVAL. Without prejudice to any other rights, QSR may terminate this EULA if Licensee fails to comply with any term or condition of this EULA. In such event, Licensee must immediately cease all Use of the Software, destroy all copies of the Software and Documentation in its possession or under its control, and take such other actions as QSR may reasonably request to ensure that no copies of the Software or Documentation remain in its possession or control. All obligations and duties that by their nature reasonably should extend beyond the termination of this EULA shall survive the termination of this EULA.

14. ENTIRE AGREEMENT; MODIFICATION; SEVERABILITY. This EULA (including any amendment to this EULA which is agreed to in writing by QSR and Licensee) is the entire agreement between Licensee and QSR relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software or any other subject matter covered by this EULA. If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA shall remain in full force and effect. A waiver of any default hereunder or of any term or condition of this EULA shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.

15. NOTICES. All notices and other communications provided for hereunder shall be in writing, and shall be addressed to Licensee or QSR, as applicable, and shall be considered delivered when (i) delivered personally, (ii) sent by confirmed e-mail or facsimile, (iii) one (1) day after having been sent by commercial overnight courier with written verification receipt, or (iv) three (3) days after having been sent, postage prepaid, by first class or certified mail.

16. INJUNCTIVE RELIEF. Licensee acknowledges and agrees that its obligations and promises under this EULA are of a unique, intellectual nature giving them particular value. Licensee agrees that the breach of any promises under this EULA shall, in addition to any other relief which may be available and recoverable, entitle QSR (and/or its suppliers) to an immediate injunction and restraining order to prevent such violations or continued violation without having to prove damages. Such violation shall further subject Licensee to paying all reasonable expenses incurred by QSR (and/or its suppliers) during the enforcement of its (and/or their) rights hereunder including, but not limited to, payment of all of QSR’s (and/or its suppliers’) court costs and attorneys’ fees. No surety shall be required on any court bond required in the event QSR (and/or its suppliers) seeks court assistance in enforcing this EULA. Additionally, Licensee agrees that any disclosure of any information or the performance of any actions prohibited by this EULA will cause substantial damages that will have to be determined by a court of law.

17. GOVERNING LAW; VENUE. Irrespective of the country or other location in which Licensee is located or in which the Licensee uses the Software, Licensee agrees this EULA shall be governed by the laws of the Commonwealth of Kentucky, United States of America, with the exception of its conflict of laws rules. Subject to Section 20 of this EULA, the state and federal courts located in Louisville, Jefferson County, Kentucky shall have exclusive venue and jurisdiction with respect to any action arising out of or related to this EULA.

18. WAIVER. A waiver by either party of any default hereunder or of any term or condition of this EULA shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.

19. FORCE MAJEURE. Neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation under this EULA where such failure or delay arises out of any cause beyond the reasonable control, and without the fault or negligence of such party. Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, strikes or other labor unrest, epidemics, quarantine, embargoes and other governmental actions or regulations that would prohibit either party from ordering or furnishing products or from performing any other obligations hereunder. During the continuance of such cause(s), such party’s obligations hereunder shall be excused so long as and to the extent that such cause(s) prevent or delay performance and such party exercises reasonable diligence in attempting to fulfill its obligations notwithstanding such cause(s).

20. ARBITRATION AND WAIVER OF JURY TRIAL. All claims, disputes or controversies of whatever nature between the parties arising out of or in any way connected with the execution, interpretation, termination and performance and/or breach of this EULA (including the validity, scope and enforceability of this arbitration provision) or the relationship created thereby (each, a “Dispute”) shall, except as provided herein, be solely and finally settled by binding arbitration conducted in accordance with the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association and shall be held in Louisville, Kentucky. The parties agree that the arbitration award shall be final and shall not be subject to judicial review. Judgment on the arbitration award shall be entered and enforced in any court having jurisdiction over the parties or their assets. It is the intent of the parties that the arbitration provisions hereof be enforced to the fullest extent permitted by applicable law, including the Federal Arbitration Act, 9 U.S.C. § 2. Nothing contained in this Section 20 shall prevent the parties from seeking injunctive relief, or as otherwise permitted by law or equity. No person or entity except QSR or Licensee shall have the right to join in or participate in any arbitration proceeding arising under this EULA, and therefore the arbitrators will not be authorized to permit class actions or to permit any person or entity to be involved in or named a party to any arbitration proceeding brought by either party under this EULA. EACH OF QSR AND LICENSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS EULA OR THE TRANSACTIONS CONTEMPLATED HEREBY.

21. CONFIDENTIALITY. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. Confidential Information does not include information that is (a) previously known to the receiving Party, free from any obligation to keep it confidential, (b) publicly disclosed by the disclosing Party either prior to or subsequent to the receipt by the receiving Party of such information, (c) independently developed by the receiving Party without any access to Confidential Information, or (d) rightfully obtained from a third party lawfully in possession of Confidential Information who is not bound by confidentiality obligations to the disclosing Party. The receiving Party may disclose Confidential Information if the receiving Party is required to do so under applicable law, rule or order; provided that the receiving Party, where reasonably practicable and to the extent legally permissible, provides the disclosing Party with prior written notice of the required disclosure.

• EXPORT CONTROL. Licensee shall comply with all applicable government trade and export control laws and regulations with respect to the Software. Licensee agrees that the Software will not be transferred or exported into any country or used in any manner prohibited by any applicable laws in any jurisdiction.