365 RETAIL MARKETS OPERATOR TERMS AND CONDITIONS
Last revised: January 9, 2025
The following agreement describes the terms and conditions (“Terms”) that apply to the provision
of Products (defined below) from 365 Retail Markets, LLC (“365”) or any of its Affiliates (defined
below) to you (“Customer”). 365 and Customer are each a “Party” and collectively the “Parties”.
PLEASE READ CAREFULLY: 365 PROVIDES CUSTOMER AND AUTHORIZED USERS
ACCESS TO ITS SAAS SOLUTIONS, PROFESSIONAL SERVICES AND PRODUCTS SOLELY
ON THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS AND ON THE CONDITION
THAT CUSTOMER AND ALL AUTHORIZED USERS ACCEPT AND COMPLY WITH ALL
TERMS AND CONDITIONS IN THESE TERMS. BY CLICKING “ACCEPT”, OR BY ACCESSING
OR USING SAAS SOLUTIONS, PROFESSIONAL SERVICES OR PRODUCTS, OR AGREEING
TO A PURCHASE ORDER THE INCORPORATES THESE TERMS, CUSTOMER: (I) ACCEPTS
THESE TERMS AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS AND
CONDITIONS; AND (II) REPRESENTS AND WARRANTS THAT IT WILL CAUSE ALL
AUTHORIZED USERS TO COMPLY WITH ALL REPRESENTATIONS, WARRANTIES,
COVENANTS, RESTRICTIONS AND AGREEMENTS SET FORTH IN THESE TERMS. IF
CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THESE TERMS, (A)
365 MAY IMMEDIATELY SUSPEND OR TERMINATE CUSTOMER’S AND AUTHORIZED
USERS’ ACCESS TO THE SAAS SOLUTIONS, PROFESSIONAL SERVICES AND
PRODUCTS, (B) CUSTOMER MUST NOT ACCESS OR USE THE SAAS SOLUTIONS,
PROFESSIONAL SERVICES AND PRODUCTS, AND (C) CUSTOMER MUST NOT PERMIT
ANY AUTHORIZED USER TO ACCESS OR USE THE SAAS SOLUTIONS, PROFESSIONAL
SERVICES AND PRODUCTS. CUSTOMER MAY PROVIDE AUTHORIZED USERS ACCESS
TO THE SAAS SOLUTIONS, PROFESSIONAL SERVICES AND PRODUCTS IF, AND ONLY IF,
CUSTOMER CAUSES ALL AUTHORIZED USERS TO AGREE IN WRITING TO COMPLY AT
ALL TIMES WITH ALL REPRESENTATIONS, WARRANTIES, COVENANTS, OBLIGATIONS
AND RESTRICTIONS IN THESE TERMS AND 365 APPROVES OF SUCH AUTHORIZED
USERS. THE INDIVIDUAL ACCEPTING THESE TERMS ON BEHALF OF CUSTOMER
REPRESENTS AND WARRANTS THAT: (1) SUCH INDIVIDUAL IS AT LEAST 19 YEARS OF
AGE; AND (2) SUCH INDIVIDUAL HAS THE RIGHT, POWER AND AUTHORITY TO ENTER
INTO THESE TERMS AND BIND CUSTOMER TO ALL TERMS AND CONDITIONS SET FORTH
IN THESE TERMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE PARTIES
AGREE THAT NO TERMS AND CONDITIONS INCLUDED IN ANY CUSTOMER ISSUED
PURCHASE ORDER ARE BINDING UPON 365.
If Customer agrees to these Terms via a signed Purchase Order, each fully-executed Purchase
Order shall be deemed to incorporate by reference all of the terms and conditions of these Terms
and shall constitute a separate and binding contract between 365 or its Affiliate that is the
signatory to the Purchase Order and Customer. An Affiliate of 365 may contract under these
Terms by executing a Purchase Order. A 365 Affiliate executing a Purchase Order is agreeing to
be bound by the terms and conditions of these Terms. In such case, a 365 Affiliate shall be
deemed to be “365” and a “Party” for purposes of these Terms as applied to such Purchase Order. Notwithstanding anything to the contrary, there is no joint and several liability under these Terms by and among 365 and its Affiliates and 365 is not liable for the acts, omissions or breach of its Affiliates under these Terms or any Purchase Order.
1. Definitions. Capitalized terms have the meaning given to them in these Terms, including
below:
1.1 “Affiliate” of any party means any entity that directly or indirectly controls, is controlled by, or
is under common control with such party.
1.2 “Aggregated Data” means data that is aggregated with other data and anonymized in a
manner that such data does not identify any particular individual or entity.
1.3 “Authorized User” means (i) Customer, (ii) any Customer Affiliate or (iii) any director, officer,
employee, agent, independent contractor or subcontractor of any of the foregoing.
1.4 “Customer Data” means any business, customer, or employee information or other data of
any type which is provided by Customer or any Authorized Users to 365 or its Affiliates in
connection with Products or otherwise under these Terms, including information for input into the SaaS Solutions or other Products. Notwithstanding the foregoing, Transaction Data is not
included within the Customer Data definition.
1.5 “Documentation” means all specifications, manuals and documents relating to the
performance, operation and/or use of the Products made available by 365 to Customer. For
clarity, Documentation does not include marketing materials.
1.6 “Hardware” means the hardware, equipment, or other peripherals ordered by Customer in
any Purchase Order.
1.7 “Intellectual Property Rights” means the legal rights relating to anything customarily
considered intellectual property, including patents, inventions, trademarks, service marks, brands,
logos, corporate names, know-how and trade secrets, copyrights, designs and software.
1.8 “Locations” means the locations at Customer’s facilities and/or designated facilities identified
in a Purchase Order for the installation and use of the Products.
1.9 “MMF Program” means 365’s seller financing program for the sale of certain Hardware.
1.10 “MMF Program Documents” means the documents and agreements required to be signed
and agreed to by Customer if Customer purchases any Hardware under the MMF Program.
1.10 “SaaS Solutions” means the on-line SaaS solutions ordered by Customer in any Purchase
Order.
1.12 “Professional Services” means the Support, integration, implementation, configuration,
training or other professional services ordered by Customer and performed by 365.
1.13 “Products” means the Hardware, Software, SaaS Solutions and Professional Services, if
any, ordered by Customer, together with all related Documentation.
1.14 “Purchase Order” means a written purchase order, or other similar document, for Products
that references these terms and that is signed by 365 (or one of its Affiliates as set forth above)
and Customer.
1.15 “Relocation” means when Hardware is moved to a new location.
1.16 “Software” means the object code version of any 365 software embedded in Hardware
ordered by Customer.
1.17 “Transaction Data” means any data generated by or with the Products associated with the
execution of consumer purchases or account management by a consumer or an Authorized User.
1.18 “Update” means any software release containing error corrections, minor enhancements or
new functionality, in object code form, which 365 offers as Support.
2. Purchase and Use of Products.
2.1 Purchase. Unless expressly stated otherwise in a signed writing by 365, 365 rejects all
conflicting and additional terms or conditions proposed by Customer. These Terms, together with the applicable Purchase Order and MMF Program Documents (if any), are the entire agreement
between 365 and Customer and supersede any and all conflicting or additional terms and
conditions proposed by Customer. All Hardware sold by 365 and purchased by Customer under
the MMF Program shall be subject to the MMF Program Documents (as amended by 365 from
time to time) and incorporated herein by reference. The MMF Program Documents shall take
precedence over these Terms in the event of any conflict. Whether or not any purchase is eligible for the MMF Program is determined by 365.
2.2 Authorized Users. Customer may authorize Authorized Users to access and use the Products
on behalf of Customer. Customer shall cause all of its Authorized Users to comply with all of
Customer’s obligations, representations and warranties in these Terms.
2.3 Credit Card Processing. 365, at its sole discretion, may (i) elect the credit card processor; or
(i) allow Customer to elect a credit card processor from a pre-authorized list of processors as
determined by 365, in either case only if credit card processing is applicable to the Products
purchased by Customer. Unless otherwise expressly agreed, 365 does not take possession of
Customer funds processed for Customer by the credit card processor or other processor engaged by Customer. If Customer has indicated in its Purchase Order that 365 is to provide Credit Card Processing services, then: (a) such services are provided pursuant the processing terms available here:
365 Payment Processing Terms
(as amended by 365 from time to time, the ”Credit Card Processing Terms”) and incorporated herein by reference and subject to applicable fees set out in the Purchase Order; and (b) references to a payment processor of Customer shall be to 365. 365 retains the right and the authority to deduct, or to direct credit card processors to deduct, Fees for direct deposit services, excessive dispute charges, and for Fees owed to 365 by Customer that may be deemed as delinquent. Customer shall execute such other consents as 365 may require to duly authorize 365 or its payment processor to carry out such transactions. The Credit Card Processing Terms shall take precedence over these Terms in the event of any conflict.
2.4 Purchase Order Cancellation. Purchase Orders for Hardware and line items of Purchase Orders for Hardware may only be cancelled by Customer prior to shipment of the applicable Hardware. If Customer cancels a Hardware shipment in accordance with the preceding sentence, Customer shall pay to 365 a product staging fee to reimburse 365 for all actual costs of customization and non-recoverable software licenses and, in addition to the foregoing, a restocking fee equal to 20% of the cancelled Purchase Order amount. Customer will be immediately invoiced upon cancellation and payment will be due upon invoice receipt. 2.5 Returned Product. Customer may return Hardware to 365 if, and only if, all Fees for such Hardware are paid to 365 by Customer in full. Customer is responsible for all shipping costs for any returned Hardware. After returned Hardware has been inspected and returned to stock by 365, a credit equal to 60% of the Hardware cost will be issued to Customer on Customer’s next invoice.
3. Products.
3.1 Delivery. All Hardware will be shipped in accordance with 365’s then standard shipping practices. 365 shall configure and activate the Products at Locations identified in the Purchase Order at agreed upon dates and times. 365 shall perform its usual and customary diagnostic tests on the Products.
3.2 Software License. Subject to these Terms, 365 hereby grants to Customer a nonexclusive,
nontransferable, nonsublicensable, revocable, limited license during the Term to use and operate
the Software (solely as incorporated and embedded into the Hardware) solely to use and access
the Hardware and SaaS Solutions at the Locations for Customer’s internal business
purposes. Notwithstanding anything to the contrary herein or elsewhere, Software is licensed, not sold.
3.3 SaaS Solutions. Customer may access and use the SaaS Solutions solely for its internal use
and in accordance with these Terms and the Documentation. Use of and access to SaaS
Solutions is permitted only by the number of Authorized Users of Customer specified in the
applicable Purchase Order. Customer and its Authorized Users shall keep user identification and
password information strictly confidential. Customer is responsible for Customer’s accounts and
passwords.
3.4 Support. 365 shall provide (i) support and maintenance for the SaaS Solutions to Customer
by phone or email. Contact information along with standard support hours are posted on our
website (https://365retailmarkets.com/contact-us/) with the exception of 365’s standard holidays; and (ii) Updates to Customer for the Software and SaaS Solutions at such time as 365 makes
such Updates generally commercially available (“Support”).
3.5 Availability of SaaS Solutions. 365 shall use reasonable efforts to make the SaaS Solutions
available to Customer as continuously as possible, but subject to scheduled maintenance and uncontrollable unavailability.
3.6 Professional Services. If Customer elects to purchase Professional Services from 365,
Customer and 365 will define the Professional Services to be provided to Customer in the
applicable Purchase Order, which will set forth relevant pricing, deliverables, and any related
specifications, milestones, testing, and scheduling parameters. If Customer desires to change Professional Services set forth in a Purchase Order, Customer shall make such request to 365 in writing with an explanation. 365 shall in good faith consider such request. Regardless of any discussions, agreements, requests, or offers, 365 will retain ownership of all right, title, interest and Intellectual Property Rights in, to and covering any and all work product, deliverables or intellectual property created in performance of Professional Services. To perform the Professional Services, Customer shall timely provide 365 with reasonable access to Customer materials, resources, personnel, equipment, or facilities as necessary. Customer shall promptly reimburse 365 for all expenses, which shall be reasonable and allowable in accordance with 365’s expense policies.
3.7 General Restrictions. Customer shall not, directly or indirectly through any party: (i) use the
Products for any purpose other than its own internal business purposes; (ii) use or access the
Products in violation of any applicable law, rule, regulation or industry standard; (iii) sell, resell,
license, lease, transfer, redistribute, assign or otherwise commercially exploit or make the
Products available to any third party, other than to Authorized Users for Customer’s own internal
business purposes; (iv) send, store, submit or upload libelous, unlawful or tortious material on or
to the Products; (v) send, store, submit or upload malicious or harmful code on or to the Products;
(vi) interfere with or disrupt the integrity or performance of the cloud environment where the
Products is deployed; (vii) attempt to circumvent security restrictions or protocols for the cloud
environment where the Products is deployed; (viii) duplicate or reverse engineer the Products, in
whole or in part; (ix) disclose the results of any benchmarking test; or (x) remove or modify any
proprietary markings or notices on the Documentation, Products or other materials delivered by
365 in the performance of these Terms. All rights and licenses granted to Customer under these
Terms are conditioned upon Customer’s compliance at all times with all obligation in this Section 3.7
3.8 Ownership. 365 and/or its suppliers (as applicable) have and will retain all rights (including, without limitation, the Intellectual Property Rights relating to the Products), title and interest in and to the Products (and any component thereof) and Transaction Data, except for ownership of Hardware purchased by Customer (subject to the license of Software). Customer is obtaining only a limited right to access the Software and SaaS Solutions. All modifications of the Products will remain the property of 365. All rights not granted by 365 are reserved.
3.9 Audit Rights. 365 may on reasonable notice audit the use of the Products by Customer during regular business hours. Customer is responsible for such audit costs if the audit reveals that Customer has underpaid any Fees or if Customer is inappropriately using the Products.
3.10 Avanti Products. If Customer is purchasing any Products or receiving any services from 365’s Affiliate Avanti Markets, then Customer hereby agrees to the terms and conditions to the Remittance Policy available at
Avanti 365 Terms and Conditions - Remittance Policy
and the Software License for Avanti Markets System available at
Avanti 365 Terms and Conditions - Software License
both such document incorporated herein by reference. With respect to Avanti Markets Products, (i) 365 will collect Customer funds processed for Customer, deduct Fees and remit the balance to Customer as set forth in the Remittance Policy, and (ii) the Remittance Policy shall take precedence over these Terms in the event of any conflict.
3.11 Impulsify Products. If Customer is purchasing any Products or receiving and services from
365’s Affiliate Impulsify, then Customer hereby agrees to the terms and conditions to the Impulsify Terms of Service incorporated herein by reference and electronically signed during Customer’s online registration or through the online proposal/acceptance process depending on the Impulsify Products and/or services purchased. With respect to Impulsify Products and/or services, the Impulsify Terms of Service shall take precedence over these Terms in the event of any conflict.
4. Customer Data.
4.1 License. Customer hereby grants to 365 a sublicensable, transferrable, assignable, perpetual,
irrevocable, worldwide, fully paid, royalty free right and license to collect, process, use, reproduce,
display, distribute, disclose and modify Customer Data and Transaction Data for purposes of
providing Products and for all purposes set forth in 365’s Privacy Notice and Biometric Data Policy available at https://365retailmarkets.com/consumer-policy/, as may be amended by 365 from time to time. Such Privacy Notice and Biometric Data Policy are collectively the “Privacy Policy.”
4.2 Delivery of Customer Data. Customer shall provide to 365 Customer Data in such format as
specified by 365 for porting to the SaaS Solutions, or else 365 may format such Customer Data
at Customer’s cost.
4.3 Data Representations. Customer shall ensure that Customer’s use of the Products, and all
access, use, and processing by 365 of Customer Data, is at all times compliant with Customer’s
privacy policies and all applicable law, including those regarding the collection, use, and sharing
of personal data of Customer’s customers, employees, or other persons. If any applicable law
requires notice or consent for the processing of the personal data by the Products, Customer shall provide such notice and obtain consent. Upon request, Customer shall provide copies of such notices and/or consents to 365. Customer represents and warrants to 365 that: (i) Customer has sufficient rights to grant the rights granted to 365 in this Section 4; (ii) 365’s collection, processing, use, reproduction, display, distribution, disclosure and modification of Customer Data in accordance with these Terms does not and will not infringe or violate the Intellectual Property Rights or other rights of any third party; (iii) 365’s collection, processing, use, reproduction, display, distribution, disclosure and modification of Customer Data in accordance with these Terms does not and will not violate any law, rule, regulation or industry standard; and (iv) Customer has the authority to provide personal data to 365 and has provided and/or obtained all required notices and consents regarding the collection, processing, use, reproduction, display,
distribution, disclosure and modification of personal data to enable 365 to perform under these
Terms.
4.4 Data Protection Addendum. To the extent 365 processes Customer Data that is personal
information, the Parties agree to the 365 Retail Markets Data Processing Addendum available
here: (EU DPA / US DPA), as amended by 365 from time to time.
The foregoing 365 Retail Markets Data Processing Addendum is incorporated herein by
reference.
4.5 Aggregated Data. Customer hereby grants 365 a perpetual, irrevocable, fully paid, royalty-
free, worldwide, sublicensable license to reproduce, create derivative works from, distribute,
display, perform, and use Customer Data and Transaction Data to create Aggregated Data.
Customer hereby grants 365 a perpetual, irrevocable, fully paid, royalty-free, worldwide,
sublicensable license to reproduce, create derivative works from, distribute, display, perform, use,
sell and commercialize Aggregated Data for any and all reasons or purposes.
5. Fees and Payment.
5.1 Fees. Customer shall pay 365 the purchase price, subscription, support, and all other fees set
forth in the applicable Purchase Order or, if none, the applicable fees on 365’s then current
published rate schedule, and include reasonable expenses as defined by 365’s travel and
expense policies as expenses relate to Customer’s instance of purchasing and using the Products (“Fees”). All Fees are non-refundable. 365 may increase Fees under a Purchase Order once annually upon 30 days prior written notice to Customer, provided that no such increase shall exceed a 10% increase of the Fees in effect immediately prior to such increase. All amounts payable under these Terms will be payable in U.S. Dollars, unless otherwise declared on the Purchase Order. If a Relocation occurs, Customer shall pay a Relocation Fee of $250 for each Relocation and an additional fee of $250 if a new PCI license is required. 5.2 Method of Payment and Timing. Fees will accrue from the applicable invoice date(s) unless otherwise noted in the applicable Purchase Order as accepted by 365. Customer is liable for recurring Fees for the Initial Term and any Renewal Term. During the Term, Fees shall be paid monthly in full in advance for all Hardware and Software, unless otherwise noted on the Purchase Order. Customer may pay invoices from 365 by means of (i) an ACH or SEPA account, with authorization permitting 365 to debit such account in full for each invoice on or after the date due, (ii) credit card, (iii) company check, or (iv) deduction of fees from credit card transaction proceeds. Interest shall be charged and paid on past due amounts at the lower of (a) 1.5% per month; or (b)
the highest rate permitted by applicable law. Customer shall execute such additional consents are required to give effect to the consents contemplated in this clause. If applicable, the Remittance Policy shall set forth the method for payment of Fees and other Expenses. From time
to time, 365 may prescribe different methods of payment, all of which methods shall form part of these Terms.
5.3 Disputes. If the amount of any invoice is disputed by Customer in good faith within 30 days of Customer receiving the applicable invoice (“Disputed Amount”), then Customer must submit a written notice with reasonable supporting documentation to 365 on or before the date that is 30 days following the date Customer received the applicable invoice. If Customer fails to timely dispute an invoice in accordance with the preceding sentence, the applicable invoice shall be deemed accepted by Customer and Customer irrevocably waives any and all rights to dispute the invoice. The Parties will work together in good faith to resolve the Disputed Amount within 30 days after receipt by 365 of Customer’s notice.
5.4 Right to Set-off. 365 may deduct Fees or other amounts owed by Customer to 365 from credit card proceeds if Customer fails to cure any monetary breach related to the payment of Fees under these Terms within 60 days of invoice. Deducted amounts may not exceed the total of Fees and accrued interest charges owed by Customer to 365. Fees owed will be appropriately recorded as paid by Customer.
5.5 Taxes. In addition to the Fees payable hereunder, Customer is responsible for any sales, use, or similar tax in connection with the Products, but not for any tax based on the income of 365. All amounts payable by Customer to 365 under these Terms exclude Taxes. Customer agrees to increase any amount payable to 365 by the amount that Customer is required by law to deduct, withhold, or pay for Taxes, if any.
5.6 Accelerated Payments. If Customer breaches these Terms or any Purchase Order, repudiates
these Terms or any Purchase Order or 365 otherwise has reason to believe that Customer will
not perform its obligations under these Terms or any Purchase Order, then any and all payments
and Fees owed or to be owed under these Terms or any Purchase Order shall immediately accelerate and all such payments and Fees shall become immediately due and payable upon 365’s demand.
5.7 Cumulative Remedies. The remedies set forth in this Section 5 are in addition to, and not in
lieu of, all other remedies available to 365, including those under the MMF Program Documents.
6. Term; Termination.
6.1 Term. Unless earlier terminated in accordance with these Terms and unless otherwise set
forth in the applicable Purchase Order, the duration of any purchase and use of the Products
begins on the purchase date identified in the applicable Purchase Order and continues for 3 years (“Initial Term”), and thereafter automatically renews for successive 1-year periods (each, a “Renewal Term”), continuing to operate in accordance with these Terms, unless either Party
gives the other Party written notice of nonrenewal at least 60 days prior to the end of the Initial Term or current Renewal Term, as applicable. The Initial Term and all Renewal Terms, as applicable, are referred to in these Terms collectively as the “Term.”
6.2 Termination for Cause. Either Party may terminate the applicable Purchase Order immediately
upon delivery of written notice if the other Party materially breaches these Terms or the applicable Purchase Order and fails to cure such breach within 30 days following such Party’s receipt of written notice of breach from the terminating Party.
6.3 Termination for Insolvency, etc. 365 may terminate the applicable Purchase Order upon
written notice to Customer if (i) Customer becomes insolvent, or (ii) Customer has filed against it
a petition under any bankruptcy code (or any similar petition under any insolvency law of any
jurisdiction).
6.4 Effect of Termination.
(i) Termination or expiration of a Purchase Order shall automatically terminate all rights and
licenses granted to Customer under these Terms and the applicable Purchase Order, except as
expressly set forth in these Terms. Declining to terminate the Terms when permitted under these
Terms will not limit a Party’s ability to seek other remedies that such Party may be entitled to
against the breaching Party.
(ii) Termination of these Terms shall not relieve Customer of the obligation to pay all Fees
(recurring or otherwise) payable for the remaining Term, except in the case of Customer’s
termination of use of the Products for an uncured material breach by 365. In such case, all
services will be terminated and Customer will have no responsibility to pay ongoing software-
related recurring fees. Customer is responsible for all other fees incurred prior to termination.
(iii) For the avoidance of doubt, except as expressly set forth in these Terms, Customer’s transfer
or sale of any Hardware and/or discontinuation of the use of the SaaS Solutions or Software shall
not constitute a termination of these Terms or relieve Customer of Customer’s obligation to pay
all Fees (recurring and otherwise) payable during the full remaining Term. Upon any transfer or
sale of Hardware by Customer (“Transfer”), at Customer’s sole cost and expense, Customer shall
(a) provide to 365 prior written notice of any such Transfer, with details of such Transfer, and (b)
with the assistance of the transferee/purchaser, coordinate the Transfer of the Hardware with 365 and (c) upon receiving notice of a Transfer, 365 may require immediate payment of any subsidy liability, lease balances and/or rebate balances owed by Customer. Transfer shall specifically include the circumstance in which there is a change of control of more than ten percent (10%) of the equity of Customer or an asset sale on behalf by Customer consisting of ten percent (10%) or more if its assets.
6.5 Suspension. 365 may, with notice, suspend its performance under these Terms and any and
all Purchase Orders (including, without limitation, suspending performance of Professional
Services and suspending access to the SaaS Solutions) without liability if: (i) 365 reasonably
believes that any SaaS Solution is being used in violation of these Terms or the applicable
Purchase Order and such violation is not cured within sixty (60) calendar days of being notified
of such violation; (ii) any SaaS Solution or Customer Data are accessed or manipulated by a third
party without Customer consent and 365 reasonably believes that suspension is required for the
security of Customer Data; (iii) 365 is required by law, or a regulatory or government body to
suspend access to any SaaS Solution; or (iv) if any invoiced amounts remain unpaid by Customer
for more than sixty (60) calendar days past the due date.
7. Representations and Warranties.
7.1 General Warranties. Each Party represents and warrants that it is duly organized, validly
existing and may legally enter into and perform under these Terms.
7.2 SaaS Solutions Warranty. 365 warrants that during such time as Customer is paying its
Subscription Fees and other such applicable Fees for use of the SaaS Solutions (“SaaS
Solutions Warranty Period”), the SaaS Solutions will operate in substantial conformity with the
Documentation. 365 shall at its option use reasonable efforts to correct the reported non-
conformity. The remedy set forth in this section is Customer’s sole and exclusive remedy, and
365’s sole and exclusive liability, with respect to breach of the SaaS Solutions Warranty Period.
7.3 Hardware Warranty. 365 warrants that Hardware will, under normal use, be free from defects
in materials and workmanship from the date of its original factory shipment for a period of 12
months (“Hardware Warranty Period”). 365 shall, at its option, repair or replace such defective
Hardware or its internal components. Customer must return any warranted repaired or replaced
Hardware within 15 days or Customer shall be charged full price for the replaced Hardware. The
Hardware Warranty is void and no longer in effect upon a Relocation. The remedy set forth in this
section is Customer’s sole and exclusive remedy, and 365’s sole and exclusive liability, with
respect to breach of the Hardware Warranty Period.
7.4 Limitations. 365 will have no warranty obligations unless Customer submits a written warranty
claim within the applicable warranty period and within 30 days of when the condition giving rise
to the claim first appears. In addition, 365 will have no warranty obligations with respect to any
breach of warranty related to (i) any modifications or repairs that are not approved by 365; (ii) any
uses beyond the scope of the licenses or rights granted in these Terms; (iii) any uses in
combination or connection with other software, hardware, services, or equipment not provided by 365 or described in the Documentation; (iv) 365’s compliance with Customer’s designs, specifications, or instructions; (v) any unauthorized or unapproved re-purposing or re-locating
(including, without limitation, the improper or negligent packaging, shipping and/or handling) of the Products; (vi) any trial uses; or (vii) any breach by Customer of any representation, warranty or covenant in any Purchase Order or these Terms.
7.5 Third-Party Providers. CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS MAY
ENABLE OR ASSIST IT TO ACCESS THE WEBSITE CONTENT OF, CORRESPOND WITH,
AND PURCHASE PRODUCTS AND SERVICES FROM, THIRD PARTIES VIA THIRD-PARTY
WEBSITES AND THAT IT DOES SO SOLELY AT ITS OWN RISK. 365 MAKES NO
REPRESENTATION OR COMMITMENT AND SHALL HAVE NO LIABILITY OR OBLIGATION
WHATSOEVER IN RELATION TO THE CONTENT OR USE OF, OR CORRESPONDENCE
WITH, ANY SUCH THIRD-PARTY WEBSITE, OR ANY TRANSACTIONS COMPLETED, AND
ANY CONTRACT ENTERED INTO BY CUSTOMER, WITH ANY SUCH THIRD PARTY. ANY
CONTRACT ENTERED INTO AND ANY TRANSACTION COMPLETED VIA ANY THIRD-PARTY
WEBSITE IS BETWEEN CUSTOMER AND THE RELEVANT THIRD-PARTY, AND NOT 365.
365 RECOMMENDS THAT CUSTOMER REFERS TO THE THIRD-PARTY'S WEBSITE TERMS
AND CONDITIONS AND PRIVACY POLICY PRIOR TO USING THE RELEVANT THIRD-PARTY
WEBSITE. 365 DOES NOT ENDORSE OR APPROVE ANY THIRD-PARTY WEBSITE NOR THE
CONTENT OF ANY OF THE THIRD-PARTY WEBSITE MADE AVAILABLE VIA THE
PRODUCTS.
7.6 Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR THE
EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, 365 MAKES NO WARRANTIES
WHATSOEVER WITH RESPECT TO THE PRODUCTS. ALL OTHER WARRANTIES, EXPRESS
AND IMPLIED, ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, 365 DISCLAIMS ALL OF THE FOLLOWING: (I) WARRANTY OF
MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III)
WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW,
COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
CUSTOMER ACKNOWLEDGES AND AGREES THAT IN ENTERING INTO THESE TERMS IT
HAS NOT RELIED AND IS NOT RELYING ON ANY REPRESENTATIONS, WARRANTIES OR
OTHER STATEMENTS WHATSOEVER, WHETHER WRITTEN OR ORAL (FROM OR BY 365
OR ANY OF ITS AFFILIATES OR REPRESENTATIVES) OTHER THAN THOSE EXPRESSLY
SET FORTH IN THESE TERMS OR THE APPLICABLE PURCHASE ORDER AND THAT IT
WILL NOT HAVE ANY RIGHT OR REMEDY RISING OUT OF ANY REPRESENTATION,
WARRANTY OR OTHER STATEMENT NOT EXPRESSLY SET FORTH IN THESE TERMS OR
THE APPLICABLE PURCHASE ORDER.
7.7 Alcohol Disclaimer and Release. 365 MAKES NO WARRANTIES WHATSOEVER WITH
RESPECT TO THE LEGALITY, APPROPRIATENESS, OR USE OF ANY GOODS, INCLUDING
WITHOUT LIMITATION ANY ALCOHOL OR ALCOHOL PRODUCTS, CUSTOMER MAKES
AVAILABLE TO CUSTOMER’S CUSTOMERS, EMPLOYEES, OR OTHER PERSONS BY,
THROUGH, OR USING PRODUCTS. 365 MAKES NO WARRANTIES, REPRESENTATIONS
OR COMMITMENTS WITH RESPECT TO PRODUCTS’ COMPLIANCE, INCLUDING ITS USE
TO SELL ALCOHOL OR ALCOHOL PRODUCTS, WITH ANY ALCOHOL BEVERAGE LAWS OR
REGULATIONS. 365 MAKES NO WARRANTIES, REPRESENTATIONS OR COMMITMENTS
AND SHALL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER IN RELATION TO, AND
CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT CUSTOMER IS AND SHALL
BE SOLELY RESPONSIBLE AND LIABLE FOR: (I) OBTAINING AND MAINTAINING ANY AND
ALL LICENSES, PERMITS, CONSENTS, VERIFICATIONS, AUTHORIZATIONS, AND/OR
APPROVALS AS MAY BE NECESSARY AND/OR REQUIRED BY LAW, AND FOR
COMPLIANCE WITH ALL LOCAL, STATE AND FEDERAL LAWS, RULES, AND
REGULATIONS, INCLUDING BUT NOT LIMITED TO ALL DATE AND TIME AND LOCATION
RESTRICTIONS FOR CUSTOMER TO MAKE ALCOHOL AVAILABLE FOR SALE TO CUSTOMER’S CUSTOMERS, EMPLOYEES, OR OTHER PERSONS BY, THROUGH, OR USING PRODUCTS; (II) THE PURCHASE, RESALE, SERVICE, STOCKING OR RESTOCKING
OR MANAGEMENT OF ANY INVENTORY OF ANY GOODS, INCLUDING WITHOUT
LIMITATION ALCOHOL, TO BE SOLD BY CUSTOMER BY OUR THROUGH PRODUCTS; (III)
VERIFYING THE LEGALLY-REQUIRED AGE OF CUSTOMER’S CUSTOMERS AND DENYING
SALE TO ANY AND ALL UNDERAGE INDIVIDUALS ATTEMPTING TO PURCHASE ALCOHOL
FROM CUSTOMER BY, THROUGH, OR USING PRODUCTS; (IV) ANY AND ALL COLLECTION
AND/OR PAYMENT OF ADDITIONAL TAXES AND OR FEES RELATED TO CUSTOMER’S
SALE OF ALCOHOL BY, THROUGH, OR USING PRODUCTS; (V) MONITORING THE SALE ,
SERVICE, USE, CONSUMPTION, ADVERTISING, AND PROMOTION OF ALL ALCOHOL
SOLD BY CUSTOMER BY, THROUGH, OR USING PRODUCTS; (VI) THE ACTS OR
OMISSIONS OF PERSONS THAT USE OR CONSUME ANY ALCOHOL PROVIDED OR MADE
AVAILABLE BY OR ON BEHALF OF CUSTOMER OR ANY OF ITS AFFILIATES BY OR
THROUGH PRODUCTS; AND (VII) CUSTOMER’S CHOICE TO SERVE ALCOHOL OF ANY
TYPE IN ANY QUANTITY TO ANY INDIVIDUAL AND ALL RESULTING CLAIMS ARISING
FROM, RELATED TO, OR IN CONNECTION WITH CUSTOMER’S FAILURE TO COMPLY
WITH ANY APPLICABLE LAW OR REGULATION INCLUDING WITHOUT LIMITATION
RESPONSIBLE SERVICE, SERVER TRAINING, OR THE DRAM SHOP LAWS OF ANY
JURISDICTION; AND (VIII) CUSTOMER AGREES TO ESTABLISH A REASONABLE PRE-
AUTHORIZATION AMOUNT FOR EACH CONSUMER TRANSACTION. THE AMOUNT OF
SUCH PRE-AUTHORIZATION SHALL BE DETERMINED IN GOOD FAITH BY CUSTOMER
BASED ON APPLICABLE INVENTORY LEVELS, HISTORICAL TRANSACTION DATA,
INDUSTRY STANDARDS AND OTHER INFORMATION THAT IS REASONABLY APPLICABLE
THERETO. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONTINUED USE OF
365’S PRODUCTS OR PROFESSIONAL SERVICES CONSTITUTES THE CUSTOMER’S
ACCEPTANCE OF THIS PRE-AUTHORIZATION REQUIREMENT AS PART OF THE OVERALL
TERMS. CUSTOMER, FOR ITSELF, ITS CURRENT AND FUTURE AFFILIATES AND ITS AND
THEIR RESPECTIVE PARENTS, SUBSIDIARIES, REPRESENTATIVES, EMPLOYEES,
SUCCESSORS, ASSIGNS, OWNERS, MEMBERS, OFFICERS, DIRECTORS AND
SHAREHOLDERS, DOES HEREBY AND FOREVER RELEASE 365, ITS CURRENT AND
FUTURE AFFILIATES AND ITS AND THEIR RESPECTIVE PARENTS, SUBSIDIARIES,
REPRESENTATIVES, EMPLOYEES, SUCCESSORS, ASSIGNS, OWNERS, MEMBERS,
OFFICERS, DIRECTORS AND SHAREHOLDERS, FROM ANY AND ALL CLAIMS, DEMANDS,
ACTIONS, CAUSES OF ACTION, OBLIGATIONS, COSTS AND EXPENSES, ATTORNEYS’
FEES, DAMAGES, LOSSES AND LIABILITIES OF ANY KIND, WHETHER KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED, MATURED OR CONTINGENT, WHICH
CONCERN, ARISE OUT OF, OR ARE IN ANY WAY CONNECTED WITH OR RELATED TO THE
PURCHASE, SALE, SERVICE, OFFERING OF SALE, ADVERTISING, PROMOTION, OR
DISTRIBUTION OF ALCOHOL OR ALCOHOL PRODUCTS VIA THE PRODUCTS.
7.8 Third-Party Products. “THIRD-PARTY PRODUCTS” ARE ANY PRODUCTS, OR ANY
COMPONENT THEREOF, THAT ARE NOT PROPRIETARY TO 365 OR ARE PROVIDED BY A
THIRD-PARTY. 365 MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE
THIRD-PARTY PRODUCTS. ALL WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY
DISCLAIMED IN CONNECTION WITH THIRD-PARTY PRODUCTS. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, 365 DISCLAIMS ALL OF THE FOLLOWING WITH
RESPECT TO THIRD-PARTY PRODUCTS: (I) WARRANTY OF MERCHANTABILITY; (II)
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY OF TITLE; OR
(IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A
THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING,
COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. IF LEGALLY AND CONTRACTUALLY ABLE, 365 WILL PASS THROUGH TO CUSTOMER ANY WARRANTIES FROM THIRD-PARTIES IT RECEIVES THAT COVER THIRD-PARTY PRODUCTS.
8. Indemnification.
To the maximum extent permitted under applicable law, Customer hereby does, and shall,
release, defend, indemnify and hold harmless 365, its Affiliates, and its and their respective
officers, directors, employees, agents, successors and assigns from and against any and all
claims, actions, causes of action, suits, litigation, proceedings, investigations, damages, losses,
liabilities, judgments, fines, fees, penalties, settlements, costs and expenses of any nature
whatsoever (including without limitation attorney fees) that arise from, relate to, result from, are
based upon or allege: (i) breach of these Terms or any Purchase Order by Customer or any of its
Authorized Users or Affiliates, (ii) violation of any law, rule, regulation, directive or industry
standard by Customer or any of its Authorized Users or Affiliates, (iii) negligence or more culpable conduct by Customer or any of its Authorized Users or Affiliates, (iv) collection, processing, use,
reproduction, display, distribution, disclosure and modification of Customer Data as permitted in
these Terms by 365 or any of its Affiliates, (v) the use of Products by Customer or any of its
Authorized Users or Affiliates, (vi) the purchase, sale, service, offering for sale, advertising,
promotion, or distribution of any alcohol or alcohol products by or on behalf of Customer or any
of its Affiliates, or (vii) the consumption of any alcohol or alcohol products provided or made
available by or on behalf of Customer or any of its Affiliates by or through any Products. 365 shall
indemnify and hold harmless Customer and its Affiliates and permitted assigns, and their
directors, officers, employees, and agents, against any third-party claims, damages, and costs
(including reasonable attorneys’ fees) actually incurred by Customer to the extent arising from a
third-party claim alleging that the SaaS Solutions, as provided by 365, infringe such third party’s
Intellectual Property Rights. 365 will have no obligations under this section in connection with any claims that arise from or relate to data privacy, data security, violation of any law, unauthorized use of the SaaS Solutions or combination of the SaaS Solutions with any other hardware, software, technology, products, goods or services.
9. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ELSEWHERE, IN NO
EVENT SHALL 365 OR ITS AFFILIATES BE LIABLE TO CUSTOMER, ITS AFFILIATES OR ANY
THIRD PARTY FOR LOST PROFITS, COVER COSTS, LOSS OF DATA OR ANY SPECIAL,
CONSEQUENTIAL (INCLUDING LOST PROFITS AS CONSEQUENTIAL DAMAGES),
EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING
LEGAL FEES AND EXPENSES) IN CONNECTION WITH THE SUPPLY, USE OR
PERFORMANCE OF, OR INABILITY TO USE, THE PRODUCTS, OR IN CONNECTION WITH
ANY CLAIM ARISING FROM THESE TERMS (INCLUDING WITHOUT LIMITATION ANY AND
ALL DOCUMENTS AND AGREEMENTS INCORPORATED HEREIN BY REFERENCE), ANY
PURCHASE ORDER OR ANY TRANSACTIONS CONTEMPLATED HEREUNDER OR
THEREUNDER (INCLUDING, BUT NOT LIMITED TO, INDEMNITY, BREACH OR FAILURE OF
EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION,
NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) AND WHETHER OR NOT 365
OR ITS RESPECTIVE AFFILIATES SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR COSTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN OR ELSEWHERE, THE TOTAL CUMULATIVE LIABILITY OF 365 AND ITS
AFFILIATES FOR ANY AND ALL DAMAGES AND LIABILITIES THAT ARISE FROM OR
RELATE TO THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE PRODUCTS, OR IN CONNECTION WITH ANY AND ALL CLAIMS ARISING FROM THESE TERMS (INCLUDING WITHOUT LIMITATION ANY AND ALL DOCUMENTS AND
AGREEMENTS INCORPORATED HEREIN BY REFERENCE), ANY PURCHASE ORDER OR
ANY TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER (INCLUDING, BUT
NOT LIMITED TO, INDEMNITY, BREACH OR FAILURE OF EXPRESS OR IMPLIED
WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE) SHALL NOT, IN THE AGGREGATE, EXCEED THE
FEES ACTUALLY PAID BY CUSTOMER TO 365 UNDER THE APPLICABLE PURCHASE
ORDER IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH CAUSED THE
DAMAGE RELATING TO CUSTOMER’S FIRST CLAIM MADE UNDER THESE TERMS
(INCLUDING WITHOUT LIMITATION ANY AND ALL DOCUMENTS AND AGREEMENTS
INCORPORATED HEREIN BY REFERENCE) OR ANY PURCHASE ORDER. THE
EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF AN
EXCLUSIVE REMEDY OF CUSTOMER UNDER THESE TERMS (INCLUDING WITHOUT
LIMITATION ANY AND ALL DOCUMENTS AND AGREEMENTS INCORPORATED HEREIN BY
REFERENCE) OR THE PURCHASE ORDER HAS FAILED OF ITS ESSENTIAL PURPOSE.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND
LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS (INCLUDING WITHOUT
LIMITATION ANY AND ALL DOCUMENTS AND AGREEMENTS INCORPORATED HEREIN BY
REFERENCE) ARE MATERIAL, BARGAINED FOR BASES OF THE AGREEMENT AND THAT
THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE
CONSIDERATION TO BE GIVEN BY EACH PARTY AND IN THE DECISION BY EACH PARTY
TO ENTER INTO THESE TERMS (INCLUDING WITHOUT LIMITATION ANY AND ALL
DOCUMENTS AND AGREEMENTS INCORPORATED HEREIN BY REFERENCE) AND THE
APPLICABLE PURCHASE ORDER.
10. Confidentiality.
10.1 Definitions. “Confidential Information” means nonpublic or proprietary information
disclosed or made available by 365 or Customer to the other. Confidential Information does not
include information that is (i) generally known or available through no fault of the receiving Party;
(ii) known by the receiving Party, without violation of any confidentiality, prior to the time of
disclosure; or (iii) independently developed by the receiving Party without access to or reference
to the disclosing Party’s Confidential Information. 365 may disclose and Customer may receive
Confidential Information directly or indirectly through its Affiliates or other representatives and all
such disclosures and receipts shall be deemed disclosures by 365, and receipts by Customer, of
365’s Confidential Information.
10.2 Restrictions. The receiving Party agrees: (i) that it will keep all Confidential Information in strict confidence, using reasonable care to prevent unauthorized use or disclosure; (ii) that it will not disclose any Confidential Information to anyone, except with the disclosing Party’s prior written consent or as required by applicable law (provided the receiving Party provides prompt notice of such disclosure to the disclosing Party); (iii) that it will not use any Confidential Information for any purpose except to perform under these Terms or as otherwise permitted in these Terms; and (iv) that (a) upon the expiration or termination of these Terms; or (b) at any time the disclosing Party may so request, the receiving Party will promptly return to the disclosing Party all documents and materials regarding any Confidential Information that the receiving Party may then possess or control. 365 has no obligation under this section to delete Customer Data or Transaction Data, except as otherwise required by applicable law.
10.3 Permitted Disclosure. Notwithstanding anything to the contrary herein, the receiving Party
may disclose Confidential Information to its officers, employees, and agents who have a need to
know such information if they are bound by confidentiality obligations comparable to this Section
10 and the receiving Party is responsible for their breaches.
10.4 Remedies. The receiving Party acknowledges that a breach of this Section 10 may cause
irreparable injury and damages for which there is no adequate remedy. Accordingly, the disclosing Party is entitled to injunctive relief to protect and recover its Confidential Information without impairing any other right the disclosing Party may have.
11. Customer Responsibilities.
11.1. Internet. Customer is responsible for establishing and maintaining internet connectivity. If
offline transactions have been enabled, Customer is also financially liable for transactions that
occur while connectivity is lost, such as declines, fraudulent transactions, chargebacks and the
like.
11.2. Locations. Customer acknowledges that 365 has no control or responsibility over the
physical premises or physical security of the premises at the Locations. Customer is solely
responsible for the physical security of the Products at the Locations and shall be responsible for
ongoing physical inspection and monitoring.
11.3. Market Cards. Customer is solely responsible for compliance with all federal, state and local
laws related to Market Cards stored value prepaid cards. SaaS Solutions function to keep track
of expenditures and balances, but does not issue Market Card stored value prepaid cards;
Customer is the issuer of all such Market cards, if any and retains exclusive financial and
regulatory liability for them. This section is inapplicable to Global Market Cards, which are stored
value cards not issued by Customer.
11.4. Insurance. Customer shall procure, and shall maintain in full force and effect during the
term of the applicable Purchase Order, at Customer’s expense, Comprehensive General Liability
Insurance, including broad form contractual liability, broad form property damage, personal injury,
completed operations, and products liability, in the amount not less than One Million Dollars
($1,000,000) combined single limits, and liquor liability or dram shop insurance in the amount not
less than One Million Dollars ($1,000,000) per occurrence and not less than Two Million Dollars
($2,000,000) in the aggregate protecting Customer, 365, and their respective officers, directors,
partners, agents and employees, against any demand or claim or any loss, liability or expense
whatsoever arising or occurring at or in connection with any Market owned or operated by
Customer.
11.4.1. If Customer for any reason fails to procure or maintain the required insurance, 365 shall have the right (but not the obligation) to procure such insurance for its own benefit and to charge the cost of same to Customer, which shall be due for payment to 365 immediately.
11.4.2. 365 shall maintain appropriate Cyber Liability Insurance and Commercial General Liability
Insurance (including coverage for Crimes) at all times. Customer acknowledges that 365 has not
procured any insurance that names Customer as an Additional Insured or otherwise provides
coverage for Customer as an Insured.
12. General.
12.1 Relationship of the Parties. The acceptance of a Purchase Order does not create any
partnership, joint venture, agency or other similar relationship between the Parties, beyond the
relationship of independent contractors.
12.2 Severability. If any provision of these Terms is invalidated by a court, such provision will
remain effective to the extent permitted by law and all other provisions of these Terms shall remain in full force and effect.
12.3 Assignment and Change of Control. Notwithstanding anything to the contrary herein or
elsewhere, Customer may not assign, transfer or delegate these Terms or any Purchase Order,
or any rights or obligations under these Terms or any Purchase Order, whether by operation of
law, merger, consolidation or otherwise, without 365’s prior written consent. Any assignment or
purported assignment in violation of this section is null and void. 365 may freely assign, transfer,
subcontract or delegate its rights or obligations under the Terms or any Purchase Order without
prior notice to or consent from Customer. These Terms will be binding upon and will inure to the
benefit of the Parties, their successors and permitted assigns. If Customer undergoes any change of control (whether by stock sale, membership interest sale, sale of voting securities, operation of law or otherwise), 365 may terminate these Terms and any and all Purchase Orders by delivery of notice to Customer.
12.4 Governing Law; Waiver of Jury Trial; Arbitration.
12.4.1 USA. If the 365 entity that entered into the applicable Purchase Order is organized
in the United States of America (and its states), this section shall apply. These Terms and the
applicable Purchase Order will be governed by and construed in accordance with the laws of the
State of Michigan without reference to conflict of law provisions. Any action, proceeding,
arbitration hearing or mediation relating to or arising from these Terms or the applicable Purchase Order must be brought, held, or otherwise occur in the State of Michigan. PLEASE READ THIS
PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE RESOLVED BY BINDING
ARBITRATION AND THAT (I) CUSTOMER IS GIVING UP ITS RIGHT TO HAVE A TRIAL BY
JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST 365, ITS AFFILIATES OR RELATED
THIRD PARTIES; (II) CUSTOMER IS GIVING UP ITS RIGHT TO HAVE A COURT RESOLVE
ANY CLAIM ALLEGED AGAINST 365, ITS AFFILIATES OR RELATED THIRD PARTIES; (III)
CUSTOMER IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE
ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO
PARTICIPATE IN A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED
AGAINST 365, ITS AFFILIATES AND/OR RELATED THIRD PARTIES. Any claim, dispute, or
controversy (“Claim”) by either Customer or 365 against the other, or against the officers,
directors, employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents, successors,
or assigns of the other, arising from or relating in any way to these Terms or the applicable
Purchase Order or to the relationship formed between the Parties as a result of these Terms or
the applicable Purchase Order, including Claims regarding the applicability of this arbitration
clause or the validity of the entire Terms, shall be resolved exclusively and finally by binding
arbitration administered by the American Arbitration Association (“AAA”) in the County in
Michigan where 365 is located. All Claims are subject to arbitration, no matter what theory they
are based on. This includes Claims based on contract, tort (including intentional to rt), fraud,
agency, Customer’s or 365’s negligence, statutory or regulatory provisions, or any other source
of law. Claims and remedies sought as part of a class action, private attorney general, or other
representative action are subject to arbitration on an individual (non-class, non-representative)
basis only, and the arbitrator may award relief only on an individual (non-class, non-
representative) basis. Customer and 365 will agree on another arbitration forum if the AAA ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Customer and 365. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this section shall be non-severable from the remainder of this section. If either Party prevails in the arbitration of any Claim against the other,
the non-prevailing Party will reimburse the prevailing Party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing Party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the Parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained, and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-778-7879. This arbitration agreement is made pursuant to a transaction involving interstate
commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration
agreement applies to all Claims now in existence or that may arise in the future. Nothing in these
Terms or the applicable Purchase Order shall be construed to prevent any Party’s use of (or
advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial
foreclosure or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either Party to the other.
IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, Customer MAY OTHERWISE HAVE
HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A
JUDGE OR A JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED
IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE
PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE
WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.
Notwithstanding anything to the contrary, the Parties hereby disclaim the 1980 United Nations
Convention on Contracts for the International Sale of Goods.
12.4.2 Other Jurisdictions. If the 365 entity that entered into the applicable Purchase Order is
organized in any jurisdiction other than the United States of America (and its states), this section
shall apply. These Terms and the applicable Purchase Order will be governed by and construed
in accordance with the laws of the jurisdiction where the 365 entity is organized, without reference to conflict of law provisions. Any action, proceeding, arbitration hearing or mediation relating to or arising from these Terms or the applicable Purchase Order must be brought, held, or otherwise occur in the capital city of the country where the 365 entity is organized.
PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE RESOLVED BY BINDING ARBITRATION AND THAT (i) Customer IS GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST 365 OR RELATED THIRD PARTIES; (ii) Customer IS GIVING UP ITS RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST 365 OR RELATED THIRD PARTIES; (iii) Customer IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST 365 AND/OR RELATED THIRD PARTIES. Any claim, dispute, or controversy (“Claim”) by either Customer or 365 against the other, or against the officers, directors, employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents, successors, or assigns of the other, arising from or relating in any way to these Terms or the applicable Purchase Order or to the relationship formed between the Parties as a result of these Terms or the applicable Purchase Order, including Claims regarding the applicability of this arbitration clause or the validity of the entire Terms, shall be resolved exclusively and finally by binding arbitration administered by the International Court of Arbitration of the International Chamber of Commerce (“ICC”) in capital city of the country where the 365 entity is organized. All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, Customer’s, 365’s negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis only, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. Customer
and 365 will agree on another arbitration forum if the ICC ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Customer and 365. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section shall be non-severable from the remainder of this Section. If either Party prevails in the arbitration of any Claim against the other, the non-prevailing Party will reimburse the prevailing Party for any fees it paid to the ICC in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing Party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the Parties, and judgment may be entered in a court of competent jurisdiction. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this these Terms or the applicable Purchase Order shall be construed to prevent any Party’s use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either Party to the other.
IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, Customer MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.
Notwithstanding anything to the contrary, the Parties hereby disclaim the 1980 United Nations
Convention on Contracts for the International Sale of Goods.
12.4.3 Equitable Relief. Notwithstanding anything to the contrary herein or elsewhere, 365
may seek equitable or injunctive relief in any court or administrative body of competent
jurisdiction.
12.5 Notices. Any notice provided pursuant to these Terms must be to the receiving Party’s
address in writing and will be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if
certified mailed, 5 days after deposit in the mail; (iii) if sent via overnight courier, upon receipt; or
(iv) by electronic mail to the email address on file with 365 for Customer, which Customer is
responsible for updating as needed.
12.6 Survival. The terms that must survive the termination or expiration of the use of the Products
to affect their intent do so survive. Without limiting the generality of the foregoing, the following
sections survive any termination or expiration of these Terms or any Purchase Order: 3.7, 3.8,
7.5 through 7.8 (inclusive), 8, 9, 12 and all perpetual licenses.
12.7 Entire Terms. These Terms (including but not limited to these terms and conditions and all
addendums and policies posted to the Site and incorporated herein by reference) apply to the
Purchase Order(s) and constitute the complete and exclusive agreement between the Parties
relating to the Purchase Order(s).
12.8 Government Users. SaaS Solutions are SaaS solutions powered by commercial computer
software, and if used by a governmental user is subject to additional use restrictions pursuant to
governmental regulation.
12.9 Remedies Cumulative. Unless stated otherwise in these Terms, all rights and remedies
under these Terms are cumulative, not alternative.
12.10 Changes to Terms. 365 may amend these Terms from time to time by posting an amended
version at its website or by sending Customer written notice thereof. Such amendment will be
deemed accepted and become effective 30 days after such notice (“Proposed Amendment
Date”) unless Customer first gives 365 written notice of rejection of the amendment. In case of
such rejection, these Terms will continue under the original provisions, and the amendment will
become effective at the start of Customer’s next renewal term following the Proposed Amendment Date or the start of the next Purchase Order, whichever comes first. Customer’s continued use of the Products following the effective date of an amendment will confirm Customer’s consent thereto. These Terms may not be amended in any other way except through a written agreement by authorized representatives of each Party; provided, however, 365 may amend the EU Data Protection Addendum, US Data Protection Addendum, Privacy Policy and Credit Card Processing Terms from time to time at its discretion.
12.11 Force Majeure. 365 shall have no liability to Customer under these Terms or any Purchase
Order if it is prevented from or delayed in performing its obligations under these Terms or any
Purchase Order, or from carrying on its business, by acts, events, omissions or accidents beyond
its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes
(whether involving the workforce of 365 or any other party), failure of a utility service or transport
or telecommunications network, act of God, war, riot, civil commotion, malicious damage,
compliance with any law or governmental order, rule, regulation or direction, accident, breakdown
of plant or machinery, fire, flood, storm or default of 365 or sub- contractors.
12.12 Conflicts. If there is a conflict between any term or condition in these Terms and any term
or condition in any Purchase Order or any document or agreement incorporated herein by
reference, the term or condition in the applicable Purchase Order or document or agree ment
incorporated herein by reference will prevail; provided, however, notwithstanding anything to the
contrary, the following sections of these Terms will prevail over any conflict term or condition in
any Purchase Order or any document or agreement incorporated herein by reference: 3.7, 3.8, 8,
9 and 12.