365 RETAIL MARKETS TERMS AND CONDITIONS
365 RETAIL MARKETS, LLC – TERMS AND CONDITIONS
Last revised: June 17, 2022
The following agreement describes the terms and conditions (“Terms”) that apply to the purchase and use of the Products, as defined herein, from 365 Retail Markets, LLC and Avanti Markets, LLC (collectively “365”). By placing an order for the purchase of Products, you (the “Customer”) agree to the Terms. PLEASE READ THESE TERMS CAREFULLY. In the Terms, the words “including” and “include” mean “including, but not limited to.” Please keep a copy of the Terms for your records.
These Terms are posted at http://365retailmarkets.com/terms-and-conditions or such other sites or portals through which 365 Products (as defined below) are offered or supplied (each, a “Site”).
These Terms include the terms and conditions set out below as well as the following additional policies and terms, each of which are posted at the Site and incorporated herein by reference:
Supplemental terms may apply to certain services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable services. Certain Products purchased under the Avanti brand prior to applicability of these Terms may be covered by terms documented in contracts or exhibits, such as warranty, subsidy liability, leases or exclusive arrangements (“Legacy Terms”). In the event of inconsistency between any Legacy Terms and these Terms, the provisions that are most protective of 365 shall prevail. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable services.
365 reserves the right to change or modify these Terms and any Supplemental terms at any time and in its sole discretion. Any changes or modifications will be effective immediately upon posting the revisions to our Site, and you waive any right you may have to receive specific or separate notice of such changes or modifications. Your continued use of the Products will confirm your acceptance of such changes or modifications; therefore, you should frequently review these Terms to understand the terms and conditions that apply to your use of our Products. If you do not agree to the amended terms, you must immediately stop using the Products.
- Definitions. Capitalized terms have the meaning given them in these Terms, including the below:
1.1 “Acquisition” means situations whereby a customer sells kiosks and the kiosks are not relocated.
1.2 “Affiliate” of any party means any entity that directly or indirectly controls, is controlled by, or is under common control with such party.
1.3 “Authorized User” means (a) Customer, (b) any Customer Affiliate or (c) 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 to 365 or its Affiliates in connection with Products or otherwise under these Terms, including information for input into the Online Services or other Products.
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.
1.6 “Hardware” means the hardware, equipment, or other peripherals ordered by Customer in any Purchase Order.
1.7 “Intellectual Property Rights” means the 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 “Online Services” means the on-line data and transaction processing services ordered by Customer in any Purchase Order.
1.10 “Professional Services” means the integration, configuration, training or other professional services ordered by Customer and performed by 365.
1.11 “Products” means the Hardware, Software, Online Services, Support and Professional Services, if any, ordered by Customer, together with all related Documentation.
1.12 “Purchase Order” means any written Customer purchase order(s) for Products accepted by 365 (per Section 2.1). Customer’s written acceptance of a 365 quote (without any different or additional terms or conditions) shall be considered a Purchase Order.
1.13 “Reassignment” means when hardware that has already been made ready for a customer’s Online Services, has to be reconfigured for a new location.
1.14 “Reassignment Fee” of $250 will be charged for each Reassignment. In addition, PCI licenses of $250 will also be charged if a new license is required – does not pertain to Air Vend units and does not apply to Avanti Products.
1.15 “Relocation” means when hardware is moved to a new location
1.16 “Relocation Fee” of $250 will be charged for the required support services for each Relocation. In addition, PCI licenses of $250 will also be charged if a new license is required – does not pertain to Air Vend units and does not apply to Avanti Products.
1.17 “Software” means the object code version of any software ordered by Customer and provided by 365 that is used with the Hardware or Products.
1.18 “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.
1.19 “Update” means any software release containing error corrections, minor enhancements or new functionality, in object code form, which 365 offers as Support.
- Purchase and Use of Products.
2.1 Purchase. Acceptance of a Purchase Order by 365 requires both (a) completion of all required Customer, Purchase Order, and Location information and (b) one of either (i) a signed writing by Customer approving the specific Purchase Order, or (ii) an electronic communication by Customer acknowledging acceptance of a 365 quote. Unless expressly stated otherwise in a signed writing by 365, 365 rejects all conflicting and additional terms or conditions proposed by Customer. These Terms incorporate by reference such Purchase Orders and these Terms supersede conflicting terms and conditions in any Purchase Order.
From time to time, 365 may prescribe different methods of acceptance of Purchase Orders, all of which methods shall form part of these Terms.
2.2 Authorized Users. Customer may authorize Authorized Users to access and use the Products on behalf of Customer and its Affiliates. Customer represents, warrants, and covenants that it will bind all such Authorized Users to the Terms and be responsible for them. Customer shall comply with all applicable laws and regulations. Customer will notify 365 in writing who its Authorized Users are.
2.3 Credit Card Processing. 365, at its sole discretion, may (a) elect the credit card processor; or (b) 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: (i) such services are provided pursuant the processing terms set out on the Site and incorporated herein by reference and subject to applicable fees set out in the Purchase Order; and (ii) references to a payment processor of the 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.
Certain Products purchased through the Avanti order Site are subject to the Remittance Policy posted at the Site and incorporated herein by reference. In this instance, 365 will collect Customer funds processed for Customer, will deduct Fees and will remit the balance to Customer as set forth in the Remittance Policy. For Customers using those Products, as determined by 365, the Remittance Policy shall take precedence over these Terms in the event of any conflict or ambiguity.
2.4 Purchase Order Cancellation. Purchase Orders and line items of Purchase Orders may only be cancelled prior to shipment. Cancelled Purchase Orders or line items of Purchase Orders are subject to a product staging fee to reimburse actual costs of customization and non-recoverable software licenses, and a restocking fee equal to 20% of the Purchase Order amount. Customer will be immediately invoiced upon cancellation and payment will be due upon invoice receipt.
2.5 Returned Product. For any returned products, the original invoice must be paid in full. Customer is responsible for all shipping costs for any Returned Products. After Returned Products have been inspected and returned to stock, a credit equal to 60% of the equipment cost will be issued.
3.1 Delivery. All Products will be shipped in accordance with 365’s standard shipping terms. 365 will configure and activate the Products at Locations identified in the Purchase Order at agreed upon dates and times. 365 will perform its usual and customary diagnostic tests, which will be provided at no additional cost to Customer.
3.2 Software License. Subject to these Terms, 365 hereby grants to Customer a nonexclusive, nontransferable license, without the right to sublicense, during the Term, to use and operate the Software in connection with the Products solely for its internal use at the Locations in accordance with the terms of these Terms and all Documentation. The Software is licensed pursuant to a separate end user license agreement set out on the Site or included in the Product and incorporated herein by reference (“EULA”), not sold, to Customer, and may be used only as provided for in these Terms.
3.3 Online Services. Customer may access and use Online Services in connection with the Software and Hardware solely for its internal use and in accordance with these Terms and the Documentation. Use of and access to Online Services is permitted only by the number of Authorized Users of Customer specified in the applicable purchase process. Customer and its Authorized Users will keep user identification and password information strictly confidential. Customer is responsible for Customer’s accounts and passwords.
3.4 Support. 365 shall provide (a) support and maintenance for the Software and Online Services to Customer by phone or email. Contact information along with standard support hours are posted on our website (https://365retailmarkets.com/contact/) with the exception of 365’s standard holidays; and (b) Updates to Customer for the Software and Online Services at such time as 365 makes such Updates generally commercially available (“Support”).
3.5 Availability of Online Services. 365 will make the Online Services 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 or in an attached Statement of Work (“SOW”), which will set forth relevant pricing, deliverables, and any related specifications, milestones, testing, and scheduling parameters. If Customer desires to change a Purchase Order or SOW for Professional Services, Customer shall make such request to 365 in writing with an explanation. 365 will in good faith consider such request. Regardless of any discussions, agreements, .requests, or offers, 365 will retain ownership in any deliverables created in performance of Professional Services. To perform the Professional Services, Customer will timely provide 365 with reasonable access to Customer materials, resources, personnel, equipment, or facilities as necessary. Customer shall timely reimburse 365 for all expenses, which shall be reasonable and allowable in accordance with 365’s expense policies.
3.7 General Restrictions. Other than as expressly permitted in these Terms, Customer will not (and will not allow any third party to): (a) provide access to, transfer or sublicense to a third party any Product; (b) use any Product in any product or service provided to a third party, (c) reverse engineer, decompile, disassemble, or obtain or use the source code or non-public application programming interfaces (APIs) to any Product, (d) modify any Product or any Documentation, or (e) remove or obscure any notices contained in any Product. Customer shall cooperate with 365 in all respects in 365’s efforts to reproduce any errors reported by Customer to enable 365 to make necessary corrections.
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 Software, the Documentation, and the Transaction Data. Customer is obtaining only a limited right to access the Software and Online Services. 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.
- Customer Data. With respect to the use of select 365 Products for which use of Customer Data is a component of proper use, Customer accepts these Terms as related to sharing, formatting, accessing, using, and processing Customer Data.
4.2 Delivery of Customer Data. Customer will provide to 365 its current Customer Data in such format as specified by 365 for porting to the Online Services, or else 365 may format such Customer Data at Customer’s cost.
4.3 Data Representations. Customer will 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, use, sharing, processing, or transfer of Customer Data in accordance with these Terms does not infringe or violate the Intellectual Property Rights or other rights of any third party; and (iii) Customer has the authority to provide personal data to 365 and has provided and/or obtained all required notices and consents regarding the collection, use, sharing, processing, and transfer of personal data to enable 365 to perform under these Terms.
- Fees and Payment.
5.1 Fees. Customer agrees to pay 365 the purchase price, subscription, support, and other fees for the Products set forth in the applicable Purchase Order or 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 the pricing for Products (i) once annually up to a maximum of five percent (5%) after the Initial Term, upon 30 days prior written notice to Customer or (ii) at any time in connection with the purchase of additional Products under a new Purchase Order. All amounts payable under these Terms will be payable in U.S. Dollars, unless otherwise declared on the Purchase Order.
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 will be 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 (a) an ACH or SEPA account, with authorization permitting 365 to debit such account in full for each invoice on or after the date due, (b) credit card, (c) company check, or (d) deduction of fees from credit card transaction proceeds. Interest shall be charged and paid on past due amounts at the lower of (i) 1.5% per month; or (ii) 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 (a “Disputed Amount”), then Customer must submit a written notice with reasonable supporting documentation within 60 days of the date of the initial invoice on which the Disputed Amount appears, failing which Customer waives all rights to dispute such Disputed Amount and to file any claim. 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. In the event credit card proceeds are less than Fees owed and Customer fails to cure any remaining monetary breach, 365 has the rights ascribed in section 5.5.
5.5 Suspension. 365 may suspend the provision of the Online Services and/or the Support if Customer fails to cure any monetary breach related to the payment of Fees under these Terms within 10 days of when 365 sends notice of such breach. If Customer discontinues use of Product(s) at a Location within 180 days of beginning use of such Product(s) there, and if Customer is not then in breach of these Terms, then Customer may suspend the payment of recurring Fees applicable to such Product(s) one time and must communicate in writing the details and the timing of such a suspension not less than 15 days before initiating such suspension.
5.6 Taxes. In addition to the Fees payable hereunder, Customer agrees that it will be 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.
- Term; Termination.
6.1 Term. Unless earlier terminated, 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.” Notwithstanding anything in these Terms, upon providing notice to 365, Customer has the right during the Initial Term to suspend service for up to 180 days. Notwithstanding any such suspension of service, Customer is still obligated to make full payment for the entire 3-year Initial Term.
6.2 Termination for Cause. Either party may terminate use of the Products by giving written notice to the other party upon a material breach by the other party of any of its representations, warranties, or obligations under these Terms, unless the breaching party cures such breach within 30 days following receipt of such written notice.
6.3 Termination for Insolvency, etc. 365 may terminate the use of the Products by Customer upon written notice to Customer if (i) Customer becomes insolvent, (ii) Customer has filed against it a petition under any bankruptcy code (or any similar petition under any insolvency law of any jurisdiction), or (iii) 365 reasonably believes that Customer is not capable of meeting its obligations as they become due.
6.4 Effect of Termination.
(a) Termination or expiration of these Terms shall terminate the Software licenses, Support, Online Services, and all other rights and licenses granted by 365 to Customer under these Terms, 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.
(b) 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 the Customer will have no responsibility to pay ongoing software-related recurring fees. The Customer will be responsible for all other fees incurred prior to termination.
(c) 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 Online Services 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, except with the prior written consent of 365, which it may withhold or condition for any reason. Upon any transfer or sale (a “Transfer”) of Hardware by a Customer, at Customer’s sole cost and expense, Customer shall (i) provide to 365 prior written notice of any such Transfer, with details of such Transfer, and (ii) with the assistance of the transferee/purchaser, coordinate the Transfer of the Hardware with 365 and (iii) 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.
- 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 Software Warranty. 365 warrants that during such time as Customer is paying its Subscription Fees and other such applicable Fees for use of the Software (the “Software Warranty Period”), the Software and Online Services will operate in substantial conformity with the Documentation. 365 will at its option use reasonable efforts to correct the reported non-conformity, to replace any non-conforming Software, or to allow the Customer to terminate the use of the Products as to such defective Software or Online Services. This is the only remedy available to the customer
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 will, 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 no longer in effect after a Relocation.
Customer may have a negotiated warranty. If that warranty differs from this Hardware Warranty, that warranty shall supersede the Hardware Warranty for the period of time specified in their terms.
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. 365 will also 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 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, 365 MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Customer, at its own expense, will indemnify and hold harmless 365 and its Affiliates and assigns, and their directors, officers, employees, and agents, against any claims, damages, and costs (including reasonable attorneys’ fees) incurred by 365 because of a breach by Customer, its Affiliates, or Authorized Users of any of these Terms.
- Limitation of Liability.
IN NO EVENT WILL 365 BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES. IN NO EVENT SHALL THE LIABILITY OF 365 EXCEED THE AMOUNT PAID BY CUSTOMER TO 365 HEREUNDER DURING THE 12-MONTH PERIOD PRECEDING THE DATE OF LIABILITY. FOR ANY GIVEN BREACH HEREOF, CUSTOMER MAY MAKE ONLY A SINGLE CLAIM WITHOUT DUPLIATION UNDER ANY ADDENDA OR POLICIES THAT FORM PART OF THESE TERMS.
10.1 Definitions. For purposes of these Terms, “Confidential Information” will include these Terms and all other information designated by the disclosing party to the receiving party as confidential or proprietary. 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 the disclosing party’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 its own purposes (except as necessary for these Terms) or for anyone other than the disclosing party; 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.
10.3 Permitted Disclosure. 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.
10.5 Information without impairing any other right the disclosing party may have.
11.1 365 Retail Markets Responsibilities. – assist in a seamless transfer and work to avoid any service interruptions.
11.2 Timing – target 7 business days to process and complete transfer post receipt of written authorization and the customization deliverables.
11.3 Fees – customer will be billed for data moves, pci license (if applicable for 365 Products), branding, reconfiguration and special integrations and software.
11.4. Customer shall remain obligated for any debts or liabilities owed to 365 and not assigned in the event of a sale, merger, change of control or other transfer of ownership of some or all of Customer’s business or assets. This includes, but is not limited to, subsidy liabilities, rebates and lease liabilities.
- Customer Responsibilities.
12.1. 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.
12.2. Customer acknowledges that 365 has no control or responsibility over the physical premises or physical security of the premises at the Locations. Customer agrees to be solely responsible for the physical security of the Products at the Locations and shall be responsible for ongoing physical inspection and monitoring.
12.3. Customer is solely responsible for compliance with all federal, state and local laws related to Market Cards stored value prepaid cards. The Software functions 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.
12.4. Customer shall procure, and shall maintain in full force and effect during the term of this Agreement, 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, 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.
12.4.1 All such insurance policies shall provide that 365, even though named as an insured, shall nevertheless be entitled to recover under the policy for any loss caused by the actions of Customer or its servants, agents or employees.
12.4.2. 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.
12.4.3. 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.
13.1 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.
13.2 Severability. If any provision of these Terms is invalidated by a court, such provision will remain effective to the extent permitted by law.
13.3 Assignment. Customer may not assign or delegate the use of the Products or these Terms without prior written consent of 365. As a condition to providing any such consent, the assignee shall agree in writing to assume all obligations of Customer under these Terms, and Customer shall remain liable for the performance of all obligations under these Terms. 365 may freely assign or delegate its obligations under the Terms 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.
13.4 Governing Law; Waiver of Jury Trial; Arbitration.
These Terms 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 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, Bank, OR RELATED THIRD PARTIES; (ii) Customer IS GIVING UP ITS RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST 365, Bank 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 BANK OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST 365, Bank AND/OR RELATED THIRD PARTIES. Any claim, dispute, or controversy (“Claim”) by either Customer, 365 or Bank 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 to the relationship formed between the parties as a result of these Terms, 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 tort), fraud, agency, Customer’s, 365’ or Bank’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 and/or Bank. 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 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..
13.5 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.
13.6 Survival. The Terms that must survive the termination or expiration of the use of the Products to affect their intent do so survive.
13.7 Entire Terms. These Terms (including but not limited to these terms and conditions and all addenda and policies posted to the Site and incorporated herein by refenrece) apply to the Purchase Order(s) and, and constitute the complete and exclusive agreement between the parties relating to the Purchase Order(s).
13.8 Government Users. The Software is commercial computer software, and if used by a governmental user is subject to additional use restrictions pursuant to governmental regulation.
13.9 Remedies Cumulative. Unless stated otherwise, all rights and remedies under these Terms are cumulative, not alternative.