​Lucas Systems, Inc. Master Services Agreement

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This agreement sets forth the default terms and conditions under which Lucas and Customer have agreed to do business.  This MSA incorporates Lucas’ Standard Terms and Conditions as provided at lucaspos.com/terms. By executing this Agreement, Lucas and Customer agree to be bound by the Terms and Conditions set forth herein.

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Applicability of Terms and Conditions. The terms and conditions below shall apply to all services rendered by Lucas Systems, Inc. (Lucas) and any products sold by Lucas to any Customer.

 

Customer Account Information.  Customer must complete and return the Customer Account Information (CAI) Form provided by Lucas prior to any services being provided. A location address/phone listing must be returned with completed CAI.

 

Payment Terms.  Unless otherwise stipulated, Payment Terms for all Systems/Equipment is 50% down payment with the balance due prior to system shipment.  Payment Terms for Help Desk Services, Required Services, or Optional Services are payable as indicated in the Lucas Help Desk Service Agreement. For any services paid monthly, it is required that a recurring payment be setup and to occur in advance.  Recurring payment can be set up via ACH or Credit Card (a 3% processing fee applies to all Credit Cards).  All shipping costs, if applicable, are the responsibility of the customer.  Invoices are considered past due at 30 days aged from date of invoice.  Invoices that are past due are subject to a 1½% late charge per month.  Lucas reserves the right to suspend all services and support for failure to pay invoices when due and/or to change customer to credit card terms.  If services and support are suspended due to non-payment, then a $150 reinstatement fee will be charged to restore service once the account is brought current.  If Customer fails to make any timely payment that is due under the Agreement, Lucas may, in its sole discretion, stop performing Services after providing written notice to Customer.  Lucas’s stoppage of services for non-payment is not a breach of this Agreement.

 

Travel Expense.  All travel costs, including but not limited to hotels, meals, airfare, car rental, etc., to or from the market and/or location by Lucas shall be billed as incurred. Trips to the market and/or location that are cancelled after Lucas employees have been deployed will result in a trip charge, in addition to any travel costs incurred.

 

Sales/Use Tax.   Sales/Use Tax is the sole responsibility of the Customer.  If Lucas does not have a physical presence in customer’s state, Lucas may not be required to charge and collect Sales or Use Tax on the purchases from Lucas, but customer’s obligation for paying its state’s Sales or Use Tax still exists. Under no circumstances is Lucas responsible for Customer’s Sales/Use Tax or any penalties for late payment. Any Sales Tax due will be indicated on the balance due invoice, as sales tax amounts are typically not included on the original proposal.   

 

Dedicated Hardware.  Lucas’s computer systems (the System), including the On-Site PC and the Headquarters PC, must be dedicated to their primary, Point of Sale (POS) related functions. Other non-POS software and functions, including but not limited to, internet access, must not conflict with primary POS function.  Lucas is not responsible for any customer-loaded or third-party software or hardware. Customer understands that dedicated wiring with isolated ground is recommended.  Warranty may be voided and additional service and support charges may apply if such service and support is provided for problems related to any electrical wiring issues.

 

Software License Agreements.  All software included in the System, including all source code and/or software applications, are being provided under Software License Agreements by Lucas and various manufacturers, and it is expressly forbidden to sell, transfer, disassemble, copy, duplicate, reproduce or remanufacture any of this licensed software, whether modified or unmodified. Customer has complete responsibility for complying with all terms and conditions of License Agreements. The Lucas software is not a work for hire, or a license in perpetuity.  Lucas retains all legal rights to the System, including, but not limited to, Lucas’s software and its source code.   

 

Changes to Software and System/Equipment Specifications.  Lucas reserves the right to make changes and improvements to the System, including, but not limited to, any equipment or software, without notice to any persons or entity of such changes or improvements, and without obligation to upgrade any previous versions of its software. In addition, Lucas reserves the right to provide alternative hardware due to unavailability or obsolescence. In addition, Lucas may require additional hardware in order to improve System security.

 

Annual Software Maintenance.  Annual Software Maintenance (ASM) has an annual fee per System (per location) and is required on all Systems purchased. ASM provides for routine software updates and annual fees which must be paid in order to keep all POS, BO, and HQ software up to date with the current release. ASM does not include updates to payment software, updates to any other third-party software, major software updates, or new programs developed by Lucas. The labor cost to implement and upload software updates will be provided at T&M rates in addition to the ASM fee.

 

Customer’s Database Information and Requirements.  Customer must provide Lucas the database information needed whether in preparation for programming and delivering a new System, or for providing database maintenance on existing Systems. These items include, but are not limited to, menu items, prices, recipes, inventory, employee information, and the current sales tax rate and calculation for each location.  As a service to Customer, Lucas will program the database information provided by Customer into the System; however, under no circumstances will Lucas be responsible for incorrect database information programmed into the system, whether in error by its staff, or erroneous or incomplete information provided by Customer, whether during the initial database build or afterward. All requests for database maintenance must be in writing by customer's authorized representative. After database changes are uploaded to Systems, the customer is responsible for verifying that all database information is accurate and correct, including sales tax calculations, surcharges, add-ons, recipes and any and all other elements of the database. Under no circumstances is Lucas responsible for any financial loss due to database errors, omissions, and inaccuracies (see limitations of liability below).  

 

Customer Responsibilities.  Customer has a responsibility for training its supervisory personnel and employees to understand the proper use, function and operation of the System. This includes, but is not limited to, entering, editing, changing, and manipulating the information in the POS; using the credit/gift card system; other elements of the system, including the customer’s responsibility for PCI-compliance.  The security, integrity, accuracy, and the results produced by the System, including, but not limited to, the POS system, the credit/gift card system, and the security of any connection to the Internet in order to process credit card payment, is the sole responsibility of customer.  In addition, Customer has complete responsibility for proper use, function and the output of the System including, but not limited to, the database information, System set-up, sales tax calculations, System operations, System procedures, System edits, System dates, the System’s connection to the Internet, and the System's protection from Internet threats such as unauthorized access, virus infection, identity-theft, and loss of cardholder data. 

 

Limitation of Liability.  Customer hereby agrees that Lucas assumes and has no liability for any financial loss that may occur while using the System or its components, including any software or hardware.  This includes, but is not limited to, incorrect program configuration (e.g. menu prices, discounts, sales tax, security levels, training mode), fines levied by any regulatory body, sales tax not collected, or under-collected, loss of credit card or gift card data, chargebacks, and fraud or theft of any kind.

 

TO THE EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY TO FULFILL ITS ESSENTIAL PURPOSE, IN NO EVENT, AND UNDER NO CIRCUMSTANCES, SHALL LUCAS, OR ITS AFFILIATES, BE HELD LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE/PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, BUSINESS INFORMATION AND THE LIKE, SUFFERED OR INCURRED BY CUSTOMER OR ANY THIRD PARTY ARISING FROM, OR IN CONNECTION WITH (I) ANY BREACH BY LUCAS, AND ITS AFFILIATES, OF ANY PROVISION OF THIS AGREEMENT; (II) THE DELIVERY, USE, PERFORMANCE OR NON-PERFORMANCE OF ANY ITEM SUPPLIED UNDER THIS AGREEMENT; (III) THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES; (IV) ANY CLAIMS AGAINST CUSTOMER BY ANY PARTY; OR (V) ANY OTHER OBLIGATION WE MAY HAVE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  LUCAS’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT, OR ON TORT, OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, IS LIMITED TO REPAIR OR REPLACEMENT OF THE HARDWARE; REPLACEMENT OF THE SOFTWARE, AND/OR RE-PERFORMANCE OF SERVICES.  IN NO EVENT SHALL THE LIABILITY EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE RELEVANT HARDWARE, SOFTWARE, OR SERVICE GIVING RISE TO THE LIABILITY.  THE FOREGOING LIMITATIONS HAVE BEEN SPECIFICALLY BARGAINED FOR; LUCAS’S PRICING AND GENERAL WILLINGNESS TO ENTER INTO THIS AGREEMENT, IS CONDITIONED ON SUCH LIMITATIONS.  THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY IF LOSS, DAMAGE OR INJURY IRRESPECTIVE OF CAUSE OR ORIGIN, RESULT DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS CONTRACT OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER ALLEGED FAULT ON THE PART OF LUCAS, ITS AGENTS OR EMPLOYEES.  IT IS FURTHER AGREED THAT THE LIMITATION OF LIABILITY, EXPRESSED HEREIN, SHALL INURE TO THE BENEFIT OF AND APPLY TO ALL AFFILIATED LUCAS COMPANIES.  IN THE EVENT ANY PERSON NOT A PARTY TO THIS AGREEMENT SHALL MAKE ANY CLAIM OR FILE ANY LAWSUIT AGAINST LUCAS IN ANY WAY RELATING TO THE SYSTEM/EQUIPMENT OR SERVICES THAT ARE THE SUBJECTS OF THIS AGREEMENT, INCLUDING FOR FAILURE OF ITS SYSTEM/EQUIPMENT OR SERVICES IN ANY RESPECT, CUSTOMER AGREES TO INDEMNIFY AND HOLD LUCAS HARMLESS FROM ANY AND ALL SUCH CLAIMS AND LAWSUITS INCLUDING THE PAYMENT OF ALL DAMAGES, EXPENSES, LOSSES, COSTS, AND ATTORNEY’S FEES.

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PCI Compliance Limitation of Liability.  Customer is solely responsible for Customer’s compliance with PCI standards and practices.  Lucas makes no representation that, solely through the use of the System, Customer is or will become PCI compliant. Customer hereby indemnifies and holds harmless Lucas for any and all damages related to PCI compliance. Lucas acknowledges its role in securing your environment according to the standards of PCI-DSS. During installation, systems are configured according to the PA-DSS and all subsequent software, modifications, and support provided by Lucas undergo security and risk analysis to ensure they meet PCI-DSS requirements. Customer and its employees, contractors, and third parties may make changes to the environment.  All changes made outside of the scope of this contract should be analyzed to ensure compliance standards are maintained. Lucas is not responsible for System changes made by the customer or third parties.

 

Indemnity by Customer.  Customer shall indemnify and hold Lucas harmless from, and defend it against, any and all claims, expenses, demands, liabilities, damages, losses, and/or debts by or to all persons or entities without limitation, arising from or relating to the following;

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a. customer’s ability to interact with the System;

b. customer’s ability to enter, change, edit, manipulate the System settings and database;

c. the System’s connection to the Internet;

d. customer’s use of the System over the Internet; 

e. customer’s use of third-party software and hardware; and/or

f.  other external influences.

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Each of the above affects the results, output, integrity and security of the System. Since the results produced by the System, and the security of the System, depend on many factors including human-error, the integrity of the persons using the System, Internet threats, other outside influences, Lucas does not warrant or accept responsibility for the accuracy, integrity or security of the System, the credit card software, or other software supplied by other manufacturers.

 

Limited Software Warranty.  Lucas warrants that its software in the System will be of merchantable quality and that Customer’s sole remedy is for replacement of the software.  Lucas does not warrant the performance or results obtained by customers using the software.  

 

THE LIMITED SOFTWARE WARRANTY SPECIFIED HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES BEYOND THIS LIMITED WARRANTY ARE EXPRESSLY DISCLAIMED. LUCAS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR DAMAGES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING, EVEN IF LUCAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

Limited Hardware Warranty.  Subject to the Limited Warranty provisions indicated herein, Lucas is providing a 1-Year (from date of installation) return for repair (or replacement) warranty only on the new hardware for the System it has provided.  This warranty covers defects in material and workmanship and is subject to, among other things, normal wear and tear use parameters, correct operating procedures, proper handling, installation, etc. Warranty exclusions include, but are not limited to, vandalism, breakage, electrical faults (including outages, storms, lightning strikes, etc.), misuse, abuse, fire, excessive heat, spillage, liquid damage, Acts of God, human-error, operational and procedural error, computer-virus and similar other external influences. The above hardware warranty will be facilitated by the customer returning defective equipment to Lucas’s facility for repair and return.  Warranty does not transfer to advance exchange equipment unless an Advance Exchange Service has been purchased. Whether or not the warranty applies will be determined only after Lucas has received the equipment and determined cause of failure.  Lucas, at its sole discretion, will determine if the warranty applies.  The above warranty does not include replacement of equipment prior to inspection and warranty determination.  In some instances, warranty will be provided by the OEM.  There is no warranty on repaired equipment after initial repair warranty has expired (90 days). 

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THE LIMITED HARDWARE WARRANTY SPECIFIED HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES BEYOND THIS LIMITED WARRANTY ARE EXPRESSLY DISCLAIMED. LUCAS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR DAMAGES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING, EVEN IF LUCAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

Third-Party Software and Hardware Limitations. Certain software and hardware that may be provided to customer are not owned by Lucas and instead are owned and/or licensed from third parties. All such third-party software and hardware is provided to customer on an "AS IS" and "AS AVAILABLE" basis unless otherwise specified in writing. Lucas makes no representations or warranties of any kind, express or implied, as to the operation of third-party software and hardware unless otherwise specified in writing. Customer expressly agrees that its use of third-party software and hardware is at customer’s sole risk.

 

TO THE FULL EXTENT PERMISSIBLE BY LAW, LUCAS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LUCAS DOES NOT WARRANT THAT THIRD PARTY SOFTWARE AND HARDWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULL EXTENT PERMISSIBLE BY LAW, LUCAS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY THIRD PARTY SOFTWARE OR HARDWARE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO CUSTOMER FROM THIRD PARTY SOFTWARE AND HARDWARE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.

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ANY USE OF THIRD-PARTY SOFTWARE OR HARDWARE SHALL BE SOLELY SUBJECT TO THE TERMS AND CONDITIONS OF THE THIRD-PARTY SOFTWARE OR HARDWARE AND CUSTOMER AGREES LUCAS SHALL HAVE NO RESPONSIBILITY OR OBLIGATIONS FOR SAME.

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Confidentiality.  The parties recognize that, from time to time, information may be disclosed by Lucas to Customer that is not generally known to the public, which is highly important to Lucas’s business, including information concerning the Lucas’s trade secrets, know how, designs, specifications, techniques, methods, concepts, inventions, developments, discoveries, improvements, knowledge, data, research, product development, manufacturing processes, purchasing information and strategies, product and material costs, sales and sales strategies, customer prospects, product pricing and pricing strategies, product information, customer lists, financial information (including, but not limited to, prices, costs, and revenues), business arrangements, and other plans, procedures, and strategies related to the business of Lucas, and of any affiliates of Lucas (collectively, the Confidential Information). Confidential Information includes all non-public proprietary or confidential information of Lucas in oral, visual, written, electronic or other tangible or intangible form, whether or not marked or designated as “confidential,” and all notes, analyses, summaries and other materials prepared by Lucas that contain, are based on or otherwise reflect, to any degree, any of the foregoing. Confidential Information does not include general skills, experience, or information that is generally available to the public, other than information which has become generally available as a result of Customer’s direct or indirect act or omission. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Customer’s breach of this Agreement; (b) is obtained by Customer on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) Customer establishes by documentary evidence was in Customer’s possession prior to Lucas’s disclosure hereunder; or (d) Customer establishes by documentary evidence was or is independently developed by Customer without using any Confidential Information. Lucas expressly disclaims any waiver of the right to rely on the protections of the South Carolina Trade Secrets Act, S.C. Code Ann. § 39-8-20, et seq., or the Federal Defend Trade Secrets Act of 2016.

 

Customers shall not disclose, divulge, publish to others or in any way use or apply any Confidential Information. Customers agree that all Confidential Information disclosed remains the property of Lucas. Customer agrees that it shall maintain confidentiality throughout the duration of this and subsequent Agreements of Confidential Information, and, upon the cessation or termination of this or subsequent Agreements, shall return or destroy any Confidential Information in its possession.  The permitted use of Confidential Information is limited to facilitating the business relationship between Lucas and Customer, and in no case may Confidential Information be disclosed to any third-party or used for any purpose other than facilitating the business relationship between Lucas and Customer. In the case that there is unauthorized disclosure or Confidential Information leakage, Customer shall immediately notify the Discloser in writing of the nature of the unauthorized disclosure, the party to whom the disclosure was made, and the contents thereof.

Customers shall also take all reasonable measures to identify the root cause of the unauthorized disclosure, mitigate its effects, and prevent a recurrence.  

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Non-Solicitation/Non-Hire.  Customer agrees not to solicit, hire or otherwise engage in any manner whatsoever, directly or indirectly, any of Lucas’s employees from the date of this agreement and for a period of two years thereafter. If Customer violates this provision, Lucas shall be entitled to injunctive relief for irreparable harm and/or the sum of one year’s current salary of each employee hired or engaged as liquidated damages and not as a penalty.

 

Reasonableness of Limitations of Warranties and Restrictions and Adequacy of Consideration.  Customer recognizes that the limitations of warranty and liability and restrictions for non-solicitation/non-hire and confidentiality set forth in this Agreement are reasonable and not burdensome and that adequate consideration is given for same under this Agreement and through the sale of the System and Lucas’s services. In the event that such limitations are deemed to be unreasonable by a court of competent jurisdiction, then the parties hereto hereof agree to submit to a modification or reduction of such limitations as such court shall deem reasonable. Customer further agrees that the non-solicitation and confidentiality agreements may be enforced through injunctive relief without the need for posting of bond by Lucas as violations of same will result in irreparable injury and permanent damages to Lucas.

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Standard Terms.  This Agreement incorporates Lucas’s Standard Terms and Conditions.

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Assignment.  Neither party may assign this Agreement without written consent of the other party, except that either party may assign this Agreement in conjunction with the sale of substantially all assets of the assigning party or a controlling ownership interest in the assigning party after ten (10) days’ advance written notice to the other party.  This prohibition against assignment does not preclude the use of independent contractors by Lucas.

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Execution by Counterparts and Electronic Signatures.  The Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same document.  If Customer executes this MSA by acceptance of an electronic symbol under S.C. Code Ann. § 26-6-10 et seq., Customer hereby acknowledges, agrees and represents that such acceptance constitutes an electronic signature of an electronic record, that such electronic signature and electronic record are secure, and that such acceptance has been performed by one with authority to act on behalf of and bind the Customer.

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Survival.  The terms and conditions of this Agreement that, by their sense and context, are intended to survive the termination, performance or completion of this Agreement shall so survive.

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Attorney’s fees and costs.  In the event Lucas must pursue legal action to enforce or address compliance with the terms of this Agreement, Lucas shall be entitled to recover from Customer reasonable attorney’s fees and costs, including, but not limited to, expert witness fees, deposition, and other litigation costs, as well as any collection costs incurred.

 

Entire Agreement & Modification. This Agreement represents the entire agreement between the parties as to the matters referenced herein and is not subject to change or modification, except (a) by written agreement signed by both parties, or (b) by the revision or change control procedure included within any exhibit, incorporated document, or SOW.

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Notices.  Communications in the ordinary course of performance will be delivered electronically via email, ticket, or similar. All notices made pursuant to this Agreement shall be sent both electronically and by certified mail, registered mail, or private carrier such that the notifying party can prove both delivery of notice and that the recipient received the notice (or refused to receive) and the respective dates thereof.

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Governing Law and Forum.  This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, without regard to its conflict of laws provisions.  The state and federal courts and any disputes arising or relating to this Agreement or the System shall be resolved solely and exclusively in the Court of Common Pleas of South Carolina in Greenville County.

 

Amendment.  These terms and conditions may not be modified except by written amendment signed by the Parties.  No agent, employee, or representative of Lucas or customer has authority to bind the Parties to any representation or warranty unless such is specifically included in these terms and conditions, the Agreement or written amendments thereto.

 

Force Majeure. Neither party shall be liable for any delay or nonperformance of any covenant contained in this Agreement, nor shall any such delay or non-performance constitute a default or give rise to any liability or damages if such delay or nonperformance is caused by an event of force majeure beyond the reasonable control of such party. All parties shall make a good faith effort to effectuate this Agreement where there is an occurrence of a force majeure during and after the occurrence to the extent commercially reasonable.

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Severability.  If any part or provision of this Agreement is held invalid, unenforceable or void, the remainder of the Agreement shall not be affected and shall continue in full force and effect.

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