U.K. TERMS & CONDITIONS – SOFTWARE & SUPPORT

1. Definitions. Capitalized terms have the meaning given them in these Terms and Conditions, including the below:

“365 Retail” means 365 Retail Markets, LLC, a Delaware limited liability company.

“Affiliate” of any party means any entity that directly or indirectly controls, is controlled by, or is under common control with such party.

“Agreement” means these Terms and Conditions together with the Quote and/or relevant Purchase Order (as applicable) issued to the Customer from time to time.

“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.

“Confidential Information” means the definition as described in Section 10.1 of this Agreement.

“Customer” means the customer identified in the applicable Quote.

“Customer Data” means any business, customer or employee information or other data of any type which is provided by Customer to 365 Retail or its Affiliates in connection with Online Services or otherwise under this Agreement, including information for input into the Online Services or other Products and Personal Data.

“Data Controller” has the meaning given to it under the Data Protection Act.

“Data Processor” has the meaning given to it under the Data Protection Act.

“Data Protection Act” means the Data Protection Act 1998.

“Documentation” means all specifications, manuals and documents relating to the performance, operation and/or use of the Products made available by 365 Retail to Customer.

“Fees” means the definition as described in Section 5.1 of this Agreement.

“Hardware” means the hardware or equipment purchased by Customer from SV365 Technologies Ltd.

“Initial Term” means the definition as described in Section 6.1 of this Agreement.

“Insolvency Event” means either: (i) a resolution is passed to wind up the Customer; (ii) a liquidator or provisional liquidator takes possession or control of all or any of the Customer’s assets; (iii) a trustee, receiver, administrative receiver or other similar officer is appointed to the Customer or any other steps are taken to appoint the same; (iv) an administrator is appointed to the Customer, a resolution that an administrator be appointed to the Customer is passed or any other steps are taken to appoint an administrator to the Customer; or (v) Customer has filed against it a petition under any bankruptcy code (or any similar petition under any insolvency law of any jurisdiction).

“Intellectual Property Rights” means 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.

“Locations” means the locations at Customer’s facilities and/or designated facilities identified in a Quote for the installation and use of the Products.

“Online Services” means the on-line data and transaction processing services as may be requested by Customer from time to time.

“Personal Data” has the meaning given to it under the Data Protection Act.

“Professional Services” means the integration, configuration, training or other Software support professional services ordered by Customer and performed by 365 Retail in accordance with Exhibit A (Professional Services).

“Products” means the Software, Online Services, Support and Professional Services, as applicable, ordered by Customer and provided by 365 Retail, together with all related Documentation.

“Purchase Order” means any written Customer purchase order(s) for Professional Services accepted by 365 Retail (per Section 2.1).

“Quote” means the accepted (signed) quotation for Software, Online Services, Support and related Hardware between Customer and SV365 Technologies Ltd.

“Renewal Term” means the definition as described in Section 6.1 of this Agreement.

“Software” means the object code version of any software ordered by Customer and provided by 365 Retail that is used with the Hardware or Online Services.

“Software Warranty Period” means the definition as described in Section 7.2 of this Agreement.

“Support” means the definition as described in Section 3.4 of this Agreement.

“Term” means the definition as described in Section 6.1 of this Agreement.

“Update” means any software release containing error corrections, minor enhancements or new functionality, in object code form, which 365 Retail offers as Support.

2. Quotes, Purchase Orders and Use of Products.

2.1             Quotes. 365 Retail will provide to the Customer the Products as set out in each Quote or as otherwise agreed from time to time in accordance with the terms of this Agreement. Where the Products include Professional Services, such services shall only be provided in accordance with a Purchase Order and the terms of Section 2.2 shall apply.

2.2             Purchase Orders. Acceptance of a Purchase Order by 365 Retail may only be exhibited (i) by a signed writing by 365 Retail referencing the specific Purchase Order, or (ii) by a signed writing by 365 Retail acknowledging Customer’s acceptance (without any different or additional terms or conditions) of a 365 Retail quote.

2.3             Agreement. Unless expressly stated otherwise in a signed writing by 365 Retail, 365 Retail rejects all conflicting and additional terms or conditions regarding the Products proposed by Customer. This Agreement incorporates by reference Quotes and/or Purchase Orders (as referred to in Sections 2.1 and 2.2), as applicable. Unless stated otherwise in the relevant Quote or Purchase Order, the terms of this Agreement supersede conflicting terms in any Quote (but only those terms relating to the Products) and/or Purchase Order.

2.4             Authorized Users. Customer may authorize Authorized Users to access and use the Products and the Documentation on behalf of Customer and its Affiliates. Customer represents, warrants and covenants that it will bind all such Authorized Users to the terms and conditions set forth in this Agreement, and be responsible for them. Customer shall comply with all applicable laws and regulations. Customer will notify 365 Retail in writing who its Authorized Users are.

3.             Products.

3.1             Delivery. All Products and related services shall be provided to Customer by 365 Retail via remote administration. 365 Retail will remotely configure and activate the Products at Locations at agreed upon dates and times. 365 Retail will perform its usual and customary diagnostic tests, which will be provided at no additional cost to Customer.

3.2             Software License. Subject to the terms and conditions of this Agreement, 365 Retail 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 Hardware and Online Services solely for its internal use at the Locations in accordance with the terms of this Agreement and all Documentation.

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 the terms and conditions of this Agreement 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 Quote, or as otherwise agreed in writing. 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 Retail shall provide the following support and maintenance for the Software and Online Services: (a) technical support to Customer by phone at 0800 145 6152 available at all times (subject to Section 3.5) Twenty four (24) hours a day, Seven (7) days a week, with the exception of 365 Retail’s standard holidays which are notified to the Customer from time to time; and (b) Updates to Customer for the Software and Online Services at such time(s) as 365 Retail makes such Updates generally commercially available (“Support”).

3.5             Availability of Online Services. 365 Retail will use reasonable endeavors to make the Online Services available to Customer as continuously as is reasonably possible, but subject always to scheduled maintenance and uncontrollable or emergency unavailability.

3.6             Professional Services. 365 Retail will provide the Professional Services, if any, in accordance with the terms and conditions set forth above in Section 2.2 and in Exhibit A (Professional Services).

3.7             General Restrictions. Other than as expressly permitted in this Agreement, 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 except to the extent permitted by any applicable law, (d) modify any Product or any Documentation, or (e) remove or obscure any notices contained in any Product.

3.8             Ownership. 365 Retail and its suppliers have and will retain all rights, title and interest in and to the Products. 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 Retail. All rights not granted by 365 Retail are reserved.

3.9 Third Party Content

365 Retail Markets may provide third party content, including links to web pages and content of third parties (collectively, “Third Party Content”) as a service to those interested in this information. We do not control, endorse, or adopt any Third Party Content and can make no guarantee as to its accuracy or completeness. You acknowledge and agree that 365 Retail Markets is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review such Third Party Content. You agree to use such Third Party Content at your own risk.

3.10 Advertisements and Promotions

365 Retail Markets may display advertisements and promotions from third parties on the equipment’s electronic screens or may otherwise provide information about or links to third-party products on these screens. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties, or representations associated with such dealings or promotions are solely between you and such third party. 365 Retail Markets is not responsible or liable for any loss or damage of any sort incurred as the result of such dealings or promotions or as the result of the presence of such non-365 Retail Markets advertisers or third party information on the electronic screens.

3.11             Audit Rights. 365 Retail 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.

4.             Customer Data.

4.1             Delivery of Customer Data. Customer will provide to 365 Retail its current Customer Data in such format as specified by 365 Retail for porting to the Online Services, or else 365 Retail may format such Customer Data at Customer’s cost.

4.2             Use by 365 Retail. Customer authorizes 365 Retail to access, use and process Customer Data as necessary to provide the Online Services in connection with the Products.

4.3             Data Representations. Customer will ensure that Customer’s use of the Products, and all access, use and processing by 365 Retail 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 Retail. Customer represents and warrants to 365 Retail that: (i) Customer has sufficient rights to grant the rights granted to 365 Retail in this Section 4; (ii) 365 Retail’s collection, use, sharing, processing or transfer of Customer Data in accordance with this Agreement 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 Retail 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 Retail to perform under this Agreement, (including without limitation the transfer of Personal Data outside the European Economic Area and in particular to the United States of America).

4.4             Data Processing. In making the Products available to the Customer, 365 Retail may process Personal Data belonging to the Customer, or its employees or customers. In relation to that Personal Data, the parties acknowledge that the Customer is the Data Controller and that 365 Retail is the Data Processor. Accordingly, 365 Retail hereby undertakes: (i) to process the Personal Data only as required to perform its obligations under this Agreement; (ii) not to disclose the Personal Data to any third party in any circumstances other than at the Customer’s specific written request or in compliance with a legal obligation; and (iii) to notify the Customer and provide the Customer with details of any complaint, notice or communication which relates to the processing of Personal Data by 365 Retail for the purposes of this Agreement and to provide the Customer with reasonable assistance in relation to such complaint, notice or communication. 365 Retail will use appropriate technical, security and organisational measures to prevent unauthorised or unlawful processing of Personal Data and against accidental loss, destruction, damage, theft, unauthorised use or disclosure of the Personal Data.

5.             Fees and Payment.

5.1             Fees. Customer agrees to pay 365 Retail the purchase price, subscription, support and other fees for the Products set forth in attached Exhibit B (“Fees”). All Fees are non-refundable. 365 Retail may increase the pricing for Products (i) after the Initial Term of this Agreement, as defined in Section 6.1, upon 30 days prior written notice to Customer or (ii) at any time in connection with Customer’s purchase of additional Hardware. All amounts payable under this Agreement will be payable in British Pounds.

5.2             Method of Payment and Timing. Customer authorizes 365 Retail to automatically collect the sums paid to it by credit card transactions processed by use of the Hardware and Software at the Locations. After: (i) the Fees; and (ii) all applicable credit card fees are deducted from those sums, 365 Retail shall submit the balance to Customer on a weekly basis together with a written reconciliation statement of (for the relevant week): (i) the sums paid to it by credit card transactions: (ii) the Fees deducted from those sums; (iii) the credit card fees deducted from those sums; and (iv) the balance due to the Customer.

5.3             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 Retail. All amounts payable by Customer to 365 Retail under this Agreement exclude Taxes. Customer agrees to increase any amount payable to 365 Retail by the amount that Customer is required by law to deduct, withhold or pay for Taxes, if any.

6.             Term; Termination.

6.1             Term. Unless earlier terminated, the term of this Agreement begins on the purchase date identified in the applicable Quote and continues for 3 years (“Initial Term”) and thereafter automatically renews for successive 1-year periods (each, a “Renewal Term”) upon the terms and conditions set forth herein 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 this Agreement collectively as the “Term.”

6.2             Termination for Cause. Either party may terminate this Agreement 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 this Agreement, unless the breaching party cures such breach within 30 days following receipt of such written notice.

6.3             Termination for Insolvency, etc. 365 Retail may terminate this Agreement upon written notice to Customer if (i) Customer suffers an Insolvency Event or (ii) 365 Retail 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 this Agreement shall terminate the Software licenses, Support, Online Services and all other rights and licenses granted by 365 Retail to Customer under this Agreement, except as expressly set forth in this Agreement. For the avoidance of doubt, the termination or expiration of this Agreement shall not affect the Customer’s possession or ownership of the Hardware. Declining to terminate the Agreement when permitted under this Agreement 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 this Agreement shall not affect 365 Retail’s rights under Sections 5.1 and 5.2 above to deduct the Fees and credit card fees from sums received from credit card transaction for the remaining Term, except in the case of Customer’s termination of this Agreement for an uncured material breach by 365 Retail.
(c) For the avoidance of doubt, except as expressly set forth in this Agreement, 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 or assignment of this Agreement 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 Retail, which it may withhold or condition for any reason.
(d) 365 Retail shall be under no obligation to destroy or transfer any Customer Data or Personal Data to the Customer following the termination or expiration of this Agreement, other than where required to provide reasonable assistance to the Customer to comply with a complaint, notice or communication regarding Personal Data.

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 this Agreement.

7.2             Software Warranty. 365 Retail warrants that during such time as Customer is paying for Support (the “Software Warranty Period”), the Software and Online Services will operate in substantial conformity with the Documentation. 365 Retail will at its option (a) use reasonable efforts (i) to correct the reported non-conformity, (ii) to replace any non-conforming Software, or (b) terminate the Agreement as to such defective Software or Online Services.

7.3             Limitations. 365 Retail 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 Retail 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 Retail; (ii) any uses beyond the scope of the licenses or rights granted in this Agreement, (iii) any uses in combination or connection with other software, hardware, services or equipment not provided by 365 Retail or described in the Documentation, (iv) 365 Retail’s compliance with Customer’s designs, specifications or instructions or (v) any trial uses.

7.4             Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, 365 RETAIL MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8.             Indemnification
Customer, at its own expense, will indemnify and hold harmless 365 Retail 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 Retail because of a breach by Customer, its Affiliates or Authorized Users of any term in this Agreement.

9.             Limitation of Liability.
IN NO EVENT WILL 365 RETAIL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES INCLUDING WITHOUT LIMITATION, LOSS OF DATA, INFORMATION, PROFITS, BUSINESS, BUSINESS OPPORTUNITIES, REVENUE, TURNOVER, REPUTATION OR GOODWILL. SUBJECT ALWAYS TO THE FOREGOING, IN NO EVENT SHALL THE LIABILITY OF 365 RETAIL EXCEED THE AMOUNT PAID BY CUSTOMER TO 365 RETAIL HEREUNDER DURING THE 12 MONTH PERIOD PRECEDING THE DATE OF LIABILITY.

10.             Confidentiality.

10.1             Definitions. For purposes of this Agreement, “Confidential Information” will include the terms of this Agreement and all other information designated by the disclosing party as confidential or proprietary or which a reasonable person would consider as confidential or proprietary to the disclosing party. 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 this Agreement) or for anyone other than the disclosing party; and (iv) that (a) upon the expiration or termination of this Agreement; 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.

11.             General.

11.1             Relationship of the Parties. This Agreement does not create any partnership, joint venture, agency or other similar relationship between the parties, beyond the relationship of independent contractors.

11.2             Severability. If any provision of this Agreement is invalidated by a court, such provision will remain effective to the extent permitted by law.

11.3             Assignment. Customer may not assign or delegate this Agreement. 365 Retail may freely assign or delegate this Agreement. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

11.4             Governing Law, Jurisdiction. This Agreement is governed by the laws of the State of Delaware in the United States of America without regard to its conflicts of laws rules. Any dispute concerning a question of fact or law arising under this Agreement which is not resolved by agreement of the parties shall be decided by a court of competent jurisdiction in the State of Michigan.

11.5             Notices. Any notice provided pursuant to this Agreement 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; or (iii) if sent via overnight courier, upon receipt.

11.6             Survival. The terms of this Agreement that must survive the termination or expiration of this Agreement to effect their intent do so survive.

11.7             Entire Agreement; Amendment. This Agreement, which includes all attached Exhibits, constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof and supersedes all prior proposals, understandings and all other agreements relating to such subject matter. This Agreement may not be modified or altered except by written instrument duly executed by both parties.

11.8             Remedies Cumulative. Unless stated otherwise, all rights and remedies under this Agreement are cumulative, not alternative.

11.9             Counterparts. This Agreement may be executed in counterparts, including facsimile or scanned counterparts.

Exhibit A

Professional Services

If Customer purchases Professional Services from 365 Retail, the following terms shall apply:

1.            General. 365 Retail will provide the Professional Services described in the applicable Purchase Order and/or its attached Statement of Work (“SOW”), which will set forth relevant pricing, terms, deliverables, and any related specifications, milestones, testing and scheduling parameters.

2.             Access. Customer will timely provide 365 Retail with reasonable access to Customer materials, resources, personnel, equipment or facilities as necessary for the performance of Professional Services.

3.             Expenses. Customer shall timely reimburse 365 Retail for all expenses approved in writing in advance or expressly set forth in a Purchase Order or SOW.

4.             Changes to Scope of Professional Services. If Customer desires to change a Purchase Order or SOW for Professional Services, Customer shall make such request to 365 Retail in writing with an explanation. 365 Retail will in good faith consider such request.

5.             Deliverables. 365 Retail retains ownership in any deliverables under a Purchase Order or SOW.

Exhibit B

Fees

Customer agrees to pay the following Fees:

The greater of £100 or 5.00% of Customer’s monthly gross revenue. For purposes of this Exhibit B, the term “gross revenue” shall mean the gross revenue net of tax, payable for transactions made using the Hardware before deduction of the Fees, credit card charges or other charges and shall include all revenue which is 365 Retail is authorized to collect under Section 5.2. Notwithstanding the foregoing, Fees in no month shall exceed £279.00.