General Sales Terms & Conditions

JACRO TERMS & CONDITIONS

These Jacro Terms & Conditions, together with any applicable Order Form, the Service Level Agreement and any Schedules, Exhibits, and Addendums (the “Agreement”), setforth the terms and conditions under which Jack Roe USA, Inc. (“Jacro”) agrees to provide you (“Customer”) the Jacro Service, as specified in an applicable Order Form. This Agreement shall be effective as of the Effective Date set forth on an applicable Order Form (“Effective Date”). Jacro and Customer are individually referred to as a “Party,” and collectively, the “Parties.”

1. JACRO SERVICES.

1.1 Jacro Service License Grant. Subject to the terms and conditions of this Agreement, Jacro grants to Customer a non-exclusive, non-transferable, revocable, non-sublicensable license for Authorized User to use the Jacro Services (as updated from time to time) in connection with the specified number of Point of Sale Stations (“POS Stations”) at the location(s) specified in the Order Form (“Site(s)”) during the Term. Except as expressly permitted in this Agreement, Customer has no right to make, or authorize the making of, any other copies of the Jacro Service or any portion thereof.

1.2 Authorized Users. Use of the Jacro Service is limited to Customer, Customer’s employees and Contractors (“Customer Personnel”), and Customer’s customers (“End Users”) (together, “Authorized Users”). Customer shall be responsible for any Authorized Users’ breach of any term of this Agreement, and any breach of this Agreement by an Authorized User shall be deemed a breach of this Agreement by Customer.

1.3 Updates & Availability. From time-to-time Jacro may, in its sole discretion, update the Jacro Service. Jacro agrees to use reasonable efforts to provide Customer with any applicable Updates. Jacro agrees to use commercially reasonable efforts to make the Jacro Service available in accordance with the SLA. Jacro’s obligations under the SLA shall not apply to the extent unavailability is caused by an Authorized User’s use of the Jacro Software in a manner contrary to Jacro’s instructions or the terms of this Agreement, or modification or alteration of the Jacro Service by any party other than Jacro or Jacro’s duly authorized contractors or agents.

1.4 Documentation. Jacro may make available to the Customer from time-to-time copies of the Documentation containing up-to-date information for the proper use and maintenance of the Jacro Service by way of electronic copies. Customer acknowledges and agrees that Jacro is the sole and exclusive owner of all Documentation and Documentation shall be considered Jacro’s Confidential Information. Notwithstanding the foregoing, Customer may use and make such copies of the Documentation as are reasonably necessary for the use and maintenance of the Jacro Service and for training the Customer’s Personnel in use of the Jacro Service. Customer shall ensure that all of Jacro’s proprietary notices are reproduced in any such copy.

1.5 On-Premise Software. If the Jacro Service is provided as On-Premise Software, Customer shall: (a) be permitted to make copies of the Jacro Service solely to the extent necessary for use of the Jacro Service in accordance with the terms of this Agreement and for purposes of backup and security; (b) to the extent any physical copies of the Jacro Service are made pursuant to this Agreement, clearly and visibly label such physical copies with a notice indicating that the copy is the property of Jacro and shall further include Jacro’s proprietary rights notice; (c) to the extent any electronic copies are made, ensure that Jacro’s proprietary rights notice is displayed when the Jacro Service is in use; (d) ensure that any copies of the Jacro Service at all times remain in Customer’s possession and control and are stored in a secure place; and (e) grant Jacro or Jacro’s employees, contractors or other authorized personnel access to Customer’s facilities and systems for purposes of installing and maintaining the Jacro Hardware necessary to provide the Jacro Service in the form of On-Premise Software during the Term, including any user authorizations and/or passwords necessary to access Customer’s systems. If the Order Form contemplates the delivery and use of Jacro Hardware, Customer shall own all right, title, and interest in and to the Jacro Hardware provided to Customer upon payment in full of the Hardware Fee. Notwithstanding the foregoing, Customer’s ownership interest in and to the Jacro Hardware is separate and exclusive of its limited right to use the Jacro Service, and Customer’s use of the Jacro Services shall at all times be subject to the terms of this Agreement.

2. CUSTOMIZATIONS.

2.1 Customizations. In connection with providing the Jacro Service, Customer may request, and Jacro may agree to provide certain customizations, as specified in an Order Form (“Customizations”). Customization may include, for example, modifications, additions, or other changes to the Jacro Service that may or may not be specific or unique to Customer, developed content, or written deliverables. All Customizations shall remain the sole and exclusive property of Jacro. Notwithstanding the foregoing, subject to the terms of this Agreement, Customer shall have a license to use the Customization during the Term in connection with its use of the Jacro Service.

2.2 Delivery & Acceptance of Customizations. Jacro agrees to provide and deliver to Customer the Customization specified in an Order Form. Upon receipt of the Customizations, Customers shall have five (5) business days to review the Customizations and approve or reject the Customizations for compliance with the specifications set forth in the applicable Order Form (the “Review Period”). Prior to the end of the Review Period, Customer shall provide Jacro with written notice that the Customizations are accepted or rejected (“Review Notice”). If Customer fails to provide a timely Review Notice within the Review Period, such Customizations shall be deemed accepted by Customer. If the Customizations are rejected by Customer, the review Notice shall specify the specific specification in the applicable Order Form that Customer contends is not met by the Customizations. For avoidance of doubt, Customer’s sole basis for rejection shall be failure to comply with a specification setforth in the applicable Order Form. If the Review Notice specifies the Customizations are rejected, Jacro shall have fifteen (15) business days to amend, modify, or change the Customizations and provide revised versions of the Customizations to Customer (“Cure Period”). Upon delivery of the Customization to Customer following the Cure Period, Jacro shall have no further obligations with respect to such Customizations.

3. FEES, INVOICES, AND PAYMENTS.

3.1 Fees. Customer agrees to pay Jacro all Fees set forth in an applicable Order Form on the payment terms set forth in the Order Form (“Fees”). The Fees due under an applicable Order Form, solely with respect to a specific POS Station, shall be pro-rated based on the number of POS Stations installed at the time of invoicing, and the time after the Effective Date at which such POS Stations were installed. If Customer believes that Jacro has billed Customer incorrectly, Customer must contact Jacro no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Jacro’s customer support department.

3.2 Failure to Pay Fees. If Jacro has not received payment of any invoice within thirty (30) days after the due date, and without prejudice to any other rights and remedies of Jacro: (a) Jacro may, without liability to the Customer, disable the Customer’s password, account and/or access to all or part of the Jacro Service and Jacro shall be under no obligation to provide any or all of the Jacro Service while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to four percent (4%) over the then current prime rate as reported by the Federal Reserve Bank of New York, as of the date such payment was due and payable, commencing on the due date and continuing until fully paid, whether before or after judgment.

3.3 Change in Fees. Jacro may modify the Services Subscription Fee (as setforth in an Order Form) for the Jacro Service at any time upon thirty (30) days prior notice to Customer (which may be provided via e-mail). In the event that the Fees increase more than the higher of (i) three percent (3%), or (ii) the Consumer Price Index (CPI), within a twelve (12) month period, Customer shall have the right to terminate this Agreement.

3.4 Additional Costs. Jacro may agree to perform Site visits if required by the Customer, subject to the Customer paying Jacro’s standard day rate for each day upon which such services are provided, as well as any reasonable out-of-pocket expenses (including transport, vehicle mileage, accommodation and subsistence) incurred by Jacro or its personnel on production of reasonable evidence of expenditure to the Customer. Customer further acknowledges and agrees that Customer is liable for additional fees related to: (a) reinstallation of the Jacro Service, including installation of the Jacro Service on to new hardware, installation of the Jacro Service on to a new server, or reinstallation of the Jacro Service onto existing hardware or an existing server; and (b) transfer of POS Stations between sites.

3.5 Sales Tax/VAT. The Fees and all other payments which may become due to Jacro under this Agreement are net of tax. Customer shall, in addition, pay to Jacro the amount of any tax, duty or assessment, including any applicable VAT, which Customer is obliged to pay and/or collect from the Customer in respect of any supply under the Agreement.

4. CUSTOMER OBLIGATIONS

4.1 Customer Obligations. The Customer shall: (a) ensure that Authorized Users use the Jacro Service and the Documentation in accordance with the terms and conditions of this Agreement; (b) ensure that each Authorized User keeps a secure password for their use of the Jacro Services and Documentation, and that each Authorized User keeps their password confidential; (c) use all reasonable endeavours to prevent any unauthorized access to, or use of, the Jacro Service and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Jacro; (d) obtain and shall maintain all necessary licences, consents, and permissions necessary for Jacro, its contractors and agents to use any Customer Data and/or Usage Data to carry out its obligations under the terms of this Agreement; (e) ensure that its network and systems comply with the relevant specifications provided by Jacro from time to time; and (f) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Jacro’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

4.2 Customer Cooperation. Customer shall (a) cooperate with the Jacro in any manner reasonably required by Jacro in order to provide the Jacro Service and/or Customizations to Customer, including provision of information and data, making available suitably qualified employees and contractors of the Customer and, subject to Jacro’s compliance with the Customer’s normal security requirements; and (b) provide access to the Customer’s systems for the purpose of carrying out diagnostics and correction of Defects, provided that such access shall be direct or remote, at the Customer’s option, and that, in the latter case, it will be subject to Jacro’s compliance with any additional requirements for security and encryption techniques or software which may from time to time be specified by the Customer. Customer acknowledges and agrees that uninterrupted access to the Jacro Service and Jacro Hardware by Jacro for the Support Services is an essential requirement of the Support Services provided, including when the Customer’s Site is unattended. Customer hereby agrees to provide Jacro with such access, provided that Customer may, acting reasonably, restrict access to certain areas of its premises or systems on security grounds.

4.3 Use of Third-Party Software. Customer acknowledges and agrees that it is solely responsible for ensuring that the installation of third-party software or use of third-party devices, on the same system as the Jacro Service will not adversely affect the operation of the Jacro Services, and Jacro shall not be liable for any unavailability of the Jacro Services due to Customer’s use of third-party software of devices. Jacro recommends that Customer consult Jacro before making or allowing such installation and/or network changes, provided that Customer is ultimately responsible for any decision to use or install any third-party software or device, or make any network changes. Jacro may charge for work that is required to remedy the Jacro Software following any such installation and/or network changes which has not been carried out by or under the direct instruction of Jacro.

4.4 Prohibited Use of Jacro Services. Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of Jacro Software that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or causes damage or injury to any person or property. Jacro reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

4.5 Prohibited Customer Conduct. The Customer shall not: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this Agreement: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Jacro Service, Customizations, and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Jacro Service; (b) access all or any part of the Jacro Service, Customizations, and/or Documentation in order to build a product or service which competes with the Jacro Service and/or Documentation; (c) use the Jacro Service, Customizations, and/or Documentation to provide services to third parties; (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Jacro Service, Customizations, and/or Documentation available to any third party except for Authorized Users, (e) attempt to obtain, or assist third parties in obtaining, access to the Jacro Service, Customizations, and/or Documentation, other than as expressly provided under this Agreement; or (f) introduce or permit the introduction of, any Virus or Vulnerability into the Jacro Service and/or Jacro’s network and information systems.

5. INTELLECTUAL PROPERTY RIGHTS.

5.1 Intellectual Property Ownership. The Jacro Service and all Customizations are exclusively owned by Jacro and/or its licensors. Customer acknowledge and agrees that: (a) the Jacro Service and Customizations are licensed, not sold, to Customer, and Customer does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Jacro Service or Customizations, or any related Intellectual Property Rights; (b) the Jacro Service and Customization were developed by Jacro through the expenditure of substantial time, effort and money, and constitute valuable intellectual property and trade secrets of Jacro; and (c) Jacro and/or its licensors is and will remain the sole and exclusive owner of all rights, title and interest in and to the Jacro Service and Customizations, including all Intellectual Property Rights relating thereto. Neither Party shall gain by virtue of this Agreement any rights of ownership of any Intellectual Property owned by the other Party. The rights granted hereunder are solely with respect to Customer’s and Authorized Users’ use of the Jacro Service.

5.2 Customer Protection of Jacro Intellectual Property. The Customer shall use reasonable endeavours to prevent any infringement of the Jacro’s Intellectual Property Rights in the Jacro Service and shall promptly report to Jacro any such infringement that comes to its attention. In particular, the Customer shall: (a) ensure that each Authorized User, before starting to use the Jacro Service, is made aware that the Jacro Service is proprietary to Jacro (or appropriate third-party rights-owner) and that it may only be used in accordance with the terms of this Agreement; and (b) not permit third parties to have access to the Jacro Service without the prior written consent of Jacro, who may require that such third party executes a written confidentiality agreement before being given access to the Jacro Service.

5.3 Customer Data. Except as otherwise specified under this Agreement, Jacro does not claim ownership or any Intellectual Property Rights in or to any content (including but not limited to data, Personal Data, documents, photos, images, trademarks, graphics, audio, text, or other materials) uploaded, submitted, inputted, posted, used, or created by Authorized Users in connection with the Jacro Services (“Customer Data”). Notwithstanding the foregoing, Customer grants to Jacro a non-exclusive, fully paid and royalty-free, transferable, non-sub-licensable, worldwide license to use the Customer Data during the Term for the purpose of providing the Jacro Service to Customer and Authorized Users. Jacro is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of Customer Data over communications networks and facilities, including the internet, and the Customer acknowledges that the Jacro Service and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Customer shall perform daily back-ups of the Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Jacro shall be for Jacro to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Jacro. Jacro shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Jacro to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).

5.4 Usage Data. In connection with the Jacro Services, Authorized Users may provide data and information relating to the provision, use, and performance of various aspects of the Jacro Services and related systems and technologies (“Usage Data”). Usage Data shall not include Customer Data. Jacro and/or its vendors, shall have the right, during and after the Term, to: (i) collect Usage Data; (ii) analyze Usage Data; (iii) use Usage Data to improve and enhance the Jacro Service and for other development, diagnostic and corrective purposes in connection with the Jacro Services and other Jacro offerings; and (iv) disclose Usage Data solely in aggregate or other de-identified form. Customer agrees that it shall, at all times during the Term, include a notice to End Users that their use of the Jacro Services is subject to Jacro’s Privacy Policy located at www.jacro.com/privacy-policies/.

6. PROCESSING OF CUSTOMER DATA AND PERSONAL DATA.

6.1 Customer Data. Customer is responsible for Customer Data and is responsible for entering all Customer Data, including Personal Data, into the Jacro Service. Customer acts as a single point of contact and is solely responsible for obtaining any relevant authorizations, consents and permissions for the processing of Personal Data in accordance with this Agreement, including, where applicable approval by Controllers, which may or may not be End Users, to use Jacro as a Processor. Where authorizations, consent, instructions or permissions are provided by Customer, Customer agrees that these are provided not only on behalf of the Customer but also on behalf of any other Controller. Where Jacro informs or gives notice to Customer, such information or notice is deemed received by those Controllers permitted by Customer to use the Jacro Services and it is Customer’s responsibility to forward such information and notices to the relevant Controllers.

6.2 Documentation. Each Party is responsible for its compliance with its documentation requirements, in particular, maintaining records of processing where required under Data Protection Law. Each Party shall reasonably assist the other Party in its documentation requirements, including providing the information the other Party needs from it in a manner reasonably requested by the other Party (such as using an electronic system), in order to enable the other Party to comply with any obligations relating to maintaining records of processing.

6.3 Access. Customer grants to Jacro (including its Affiliates, licensors, and subcontractors) a nonexclusive right to process Customer Data solely to provide and support the Jacro Service. To process Personal Data, Jacro and its Subprocessors shall only grant access to authorized personnel who are in compliance with GDPR. Jacro and its Subprocessors will regularly train personnel having access to Personal Data in applicable data security and data privacy measures. During the Term, and subject to the terms of this Agreement, Customer can access its Personal Data at any time. Customer may export and retrieve its Personal Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Jacro and Customer will find a reasonable method to allow Customer access to Personal Data. Upon expiration or termination of the Agreement, Jacro will delete the Customer Data it may have on its servers, unless applicable law requires retention. Customer Data that is retained following expiration or termination of this Agreement (“Retained Data”) is subject to the confidentiality provisions of this Agreement.

6.4 Personal Data. Customer will collect and maintain all Personal Data contained in the Customer Data in compliance with applicable data privacy and protection laws. Jacro and Customer agree that it is each Party’s responsibility to review and adopt requirements imposed on Controllers and Processors by the General Data Protection Regulation 2016/679 (“GDPR”), in particular with regards to Articles 28 and 32 to 36 of the GDPR, if and to the extent applicable to Personal Data of Customer/Controllers that is processed under the Agreement.

6.5 Processing of Personal Data. Jacro will Process Personal Data only in accordance with documented instructions from Customer, as long as they are required by Data Protection Law, technically feasible, and do not require changes to the Jacro Services. If any of the before-mentioned exceptions apply, or Jacro otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, Jacro will immediately notify Customer. Jacro may notify Customer via email for purposes of providing notice under this Section 6.5 (Processing of Personal Data). Jacro may also process Personal Data where required to do so by applicable law. In such a case, Jacro shall inform Customer of that legal requirement before processing unless that law prohibits such information on important grounds of public interest.

6.6 Subprocessing. Jacro is granted a general authorization to subcontract the Processing of Personal Data to Subprocessors, provided that: (a) Jacro on its behalf shall engage Subprocessors under a written (including in electronic form) contract consistent with the terms of this Agreement in relation to the Subprocessor’s processing of Personal Data and Jacro shall be liable for any breaches by the Subprocessor in accordance with the terms of this Agreement; (b) Jacro will evaluate the security, privacy and confidentiality practices of a Subprocessor prior to selection to establish that it is capable of providing the level of protection of Personal Data required by this Agreement; and (c) Jacro will make its list of Subprocessors available to Customer upon request, including the name, address, and role of each Subprocessor that Jacro uses to provide the Jacro Service. If Customer has a legitimate reason under Data Protection Law to object to one of Jacro’s Subprocessors’ processing of Personal Data, Customer may request that Jacro replace the Subprocessor and Jacro shall promptly replace the Subprocessor. Any costs associated with replacing the Subprocessor will be borne by Customer, including any increased rates or related costs. Jacro shall not be liable for any delay in providing the Jacro Services due to replacement of a Subprocessor under this Section.
6.7 Security & Breaches. Customer will maintain reasonable security standards for its Authorized Users’ use of the Jacro Services. Customer will not conduct or authorize penetration tests of the Jacro Services. Jacro will notify Customer without undue delay after becoming aware of any Personal Data Breach and provide reasonable information in its possession to assist Customer to meet Customer’s obligations to report a Personal Data Breach as required under Data Protection Law. Jacro may provide such information in phases as it becomes available. Such notification shall not be interpreted or construed as an admission of fault or liability by Jacro.

6.8 Cooperation. In the event of third-party legal proceedings relating to the Customer Data, Jacro will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data. At Customer’s request, Jacro will reasonably cooperate with Customer and Controllers in dealing with requests from Data Subjects or regulatory authorities regarding Jacro’s Processing of Personal Data or any Personal Data Breach. Jacro shall notify the Customer as soon as reasonably practical about any request it has received from a Data Subject in relation to the Personal Data processing, without itself responding to such request without Customer’s further instructions, if applicable. Jacro shall provide functionality that supports Customer’s ability to correct or remove Personal Data from the Jacro Service or restrict its processing in line with Data Protection Law. Where such functionality is not provided, Jacro will correct or remove any Personal Data, or restrict its Processing, in accordance with the Customer’s instruction and Data Protection Law. If, pursuant to Data Protection Law, Customer (or its Controllers) are required to perform a data protection impact assessment or prior consultation with a regulator, at Customer’s request, Jacro will provide such documents as are generally available for the Jacro Service (for example, the Agreement). Any additional assistance shall be mutually agreed between the Parties and any related costs shall be borne by Customer.

7. CONFIDENTIAL INFORMATION. All confidential information shall remain the property of the disclosing party. Neither party shall make use of the other party’s confidential information for purposes other than as necessary to carry out the purpose of the agreement (the “permitted use”). Each party shall protect the other party’s confidential information by using the same degree of care as it uses to protect its own information of a like nature, but no less than a reasonable degree of care. The receiving party shall only disclose the confidential information to its employees and financial and legal advisors on a need-to-know basis in accordance with the permitted use and subject to the restrictions contained herein. The foregoing obligations will not restrict a receiving party from disclosing a disclosing party’s confidential information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the disclosing party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of receiving party. Upon expiration or termination of the agreement, each party shall return or destroy any confidential information of the other party that it may have in its possession, custody, or control. The parties’ obligations with respect to confidential information shall survive expiration or termination of the agreement for a period of five (5) years. Notwithstanding the foregoing, the parties’ obligation not to use or disclose any confidential information for which a party knows, or reasonably should know, constitute the other party’s trade secrets shall survive termination indefinitely. For avoidance of doubt, Retained Data shall be considered confidential information, but all other Customer Data and Usage Data shall not be considered confidential information.

8. TERM & TERMINATION.

8.1 Term. The term of this Agreement shall commence on the Effective Date, shall continue for period of three (3) years (“Initial Term”). This Agreement shall automatically renew for subsequent terms of equal duration to the Initial Term (each a “Renewal Term,” and together with the Initial Term, “Term”).

8.2 Termination.

8.2.1 Termination by Customer. Customer may terminate this Agreement upon ninety (90) days’ written notice to Jacro within the first six (6) months. Customer acknowledges and agrees that the minimum value of the Agreement is fifty thousand dollars ($50,000) (“Minimum Value”), and accordingly, in the event that Customer terminates this Agreement under this Section 8.2.1 (Termination by Customer) prior to the end of the Initial Term, Customer agrees to pay Jacro the difference between the amounts paid by Customer through date of termination and the Minimum Value. Customer further agrees that in the event it terminates the Agreement under this Section Section 8.2.1 (Termination by Customer), Customer will provide written feedback to Jacro on its basis for termination. For avoidance of doubt, under no circumstances shall Jacro be entitled to less than the Minimum Value. Notwithstanding the foregoing, nothing in this Section shall be construed as limiting Jacro’s damages for breach of this Agreement by Customer.

8.2.2 Termination by Either Party. Either Party may terminate this Agreement, effective immediately, if the other Party (a) becomes unable to pay its debts in the ordinary course of business, passes a resolution for winding up or has a receiver or administrator appointed over all or any of its assets, becomes insolvent (whether voluntarily or involuntarily), is placed in liquidation or ceases to carry on business as a going concern or the equivalent occurs in any jurisdiction; or (b) is in material breach of any term of this Agreement and such material breach is uncured for a period of fifteen (15) calendar days from receipt of notice by the other Party.

8.2.3 Termination by Jacro. Jacro may terminate this Agreement with immediate effect upon prior notice to Customer: (i) if charges or fees due and payable under this Agreement have remained unpaid for a period of thirty (30) calendar days following the due date of such Fees or other charges or fees under the relevant invoice; (ii) Customer breaches any representation or warranty under this Agreement; or (iii) upon ninety (90) days written notice to Customer.

8.2.4 Effect of Termination. Upon the termination of this Agreement by either Party, all rights, licenses and authorizations granted to Customer hereunder will immediately terminate and Customer shall: (i) immediately cease all use of, access to and all other activities related to the Jacro Service; (ii) remain responsible for all Fees due through the Term; (iii) if the Jacro Service and/or Customizations are provided as On-Premise Software and the Hardware Fee setforth in an applicable Order Form has not been paid in full, return to Jacro all Jacro Hardware; and (iv) if the Jacro Service is provided as On-Premise Software, return to Jacro or, at Jacro’s option, destroy all physical copies of the On-Premises Software and Documentation, and ensure that any digital copies on hard discs or other storage means associated with any computer equipment owned or controlled by the Customer are permanently deleted. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

8.3 Surviving Terms. The following Sections shall survive termination or expiration of this Agreement: Section 3 (Fees, Invoices, & Payments), Section 5.4 (Usage Data); Section 7 (Confidential Information), Section 8 (Term & Termination), Section 9 (Representations & Warranties), Section 10 (Indemnification), Section 11 (Limitation of Liability), and any other right, obligation or provision under this Agreement that, by its nature, should survive expiration or termination.

9. REPRESENTATIONS & WARRANTIES

9.1 Mutual Representations & Warranties. Each Party represents, warrants and covenants to the other Party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power and authority, including any required or necessary regulatory licenses or authorizations, to enter into and perform its obligations under this Agreement, including to grant the rights and to provide the services contemplated; (iii) the execution of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) it will comply with all applicable laws in carrying out its obligations under this Agreement.

9.2 Customer Representations & Warranties. Customer additionally represents and warrants that (i) it will comply with all instructions from Jacro relating to the operation of the Jacro Service (including any Customizations); (ii) it will comply with any reasonable requirements or directions of Jacro from time to time with respect to, terms of use, privacy policies, disclaimers and attribution provisions; (iii) it will not introduce any Virus or Vulnerability to the Jacro Service or the network and information systems of Jacro; (iv) it will at all times comply with the obligations and responsibilities setforth in Section 4 (Customer Obligations) above; and (v) the Customer Data does not infringe any right of any third party, including any Intellectual Property Right, or any rights associated with the name, image, or likeness of any third party.

9.3 Jacro Representations & Warranties. Jacro shall use reasonable efforts consistent with prevailing industry standards to maintain the Jacro Service in a manner which minimizes errors and interruptions in the Jacro Service and shall perform its obligations in a professional and workmanlike manner. The Jacro Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Jacro or by third-party providers, or because of other causes beyond Jacro’s reasonable control, but Jacro shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, JACRO DOES NOT REPRESENT OR WARRANT THAT THE JACRO SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE JACRO SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE JACRO SERVICES ARE PROVIDED “AS IS” AND JACRO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. INDEMNIFICATION.

10.1 Mutual Indemnification. Each Party shall indemnify and hold harmless the other Party and its agents, Affiliates, members, representatives, employees, successors or assigns (“Indemnitees”) from and against all losses, damages, injuries and costs, and reasonable attorneys’ fees resulting from any claim, legal or equitable, cause of action, suit, litigation, proceeding (including regulatory or administrative proceeding), complaint, demand, charge, investigation, examination, audit, arbitration, mediation, or other process for settling disputes or disagreements (“Claim”) arising out of or related to: (a) that Party’s breach of their representations and warranties under this Agreement; (b) that Party’s gross negligence; or (c) that Party’s failure to comply with any applicable law.

10.2 Jacro Indemnification. In addition to the mutual indemnification obligations setforth in Section 10.1 (Mutual Indemnification), Jacro shall indemnify and hold harmless Customer and its Indemnitees from and against all losses, damages, injuries and costs, and reasonable attorneys’ fees resulting from any Claim alleging that the Jacro Service or any Customizations infringe any Intellectual Property Rights of any third party. In the event that the Jacro Service or any portion thereof becomes the subject of a claim for violation of any Intellectual Property right of any third party, Jacro shall, at Jacro’s option and expense and in addition to Customer’s other rights and remedies, either (a) procure for the Indemnitees the right to continue using such infringing item, or (b) refund Customer all fees paid for the Jacro Service. Notwithstanding the foregoing, Jacro shall have no liability or duty to indemnify for any claim of infringement to the extent the claim is based on: (i) modifications of any Jacro Service by Customer, or (ii) the combination, operation, or use of the Jacro Service with Customer provided goods, services, hardware, software, programs, data or documentation.

10.3 Customer Indemnification. In addition to the mutual indemnification obligations setforth in Section 10.1 (Mutual Indemnification), Customer shall indemnify and hold harmless Jacro and its Indemnitees from and against all losses, damages, injuries and costs, and reasonable attorneys’ fees resulting from any Claim (a) alleging that the Customer Data infringes any Intellectual Property Rights of any third party; or (b) by any End User against Jacro due to Customer’s failure to include the necessary privacy policy notice to End User to permit Jacro’s use of Usage Data in accordance with Section 5.4 (Usage Data).

11. LIMITATION OF LIABILITY. Except in connection with a party’s indemnification obligations, gross negligence, wilful misconduct, or breach of confidentiality:(i) neither party shall be liable for any amount exceeding the total amount paid by customer for the order form at issue; and (ii) in no event shall either party be liable, whether in contract, tort (including negligence) or otherwise, for any indirect, incidental or consequential damages including lost savings, lost profit or business interruption even if notified in advance of such possibility) arising out of or pertaining to the subject matter of this agreement.

12. THIRD PARTY PROVIDERS. Customer acknowledges that the Jacro Service may enable or assist Authorized Users’ access to third party software or websites and, if it does so, that it does so solely at its own risk. Jacro makes no representation, warranty 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 software and/or website(s), or any transactions completed, and any contract entered into by an authorized user, with any such third party. Any contract entered into, and any transaction completed through any third-party software and/or website is between the authorized user and the relevant third party, and not Jacro, and Jacro has no liability for any loss or damage that an Authorized User may suffer as a result of its contract with such third-party. Jacro recommends that Authorized Users refer to the third party’s terms and conditions prior to using the relevant third-party software and/or website. Jacro does not endorse or approve any third-party software and/or website nor the content of any of the third-party software or website that may be accessed through the Jacro Service.

13. WAIVER. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

14. RIGHTS AND REMEDIES. Except as expressly provided in this agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

16. VARIATION. No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorized representatives).

17. SEVERANCE. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

18. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

19. NO PARTNERSHIP OR AGENCY. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorize any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

20. FORCE MAJEURE. Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for three (3) months, the Party not affected may terminate this Agreement by giving thirty (30) days’ written notice to the affected Party.

21. ASSIGNMENT AND SUBCONTRACTING. This Agreement is personal to the Parties and neither Party shall assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). Either Party may assign or subcontract any or all of its rights and obligations under this Agreement to its holding company or subsidiary company (which, for the purpose of this clause, shall include any company in which a Party holds fifty percent (50%) or more of the issued share capital), or a subsidiary company of its holding company from time to time. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

22. NOTICES. Any notice or communication required or permitted to be given under this Agreement may be delivered by hand or deposited with an overnight courier (signature required), sent by email or facsimile, or U.S. mail (registered or certified only), return receipt requested, at the addresses setforth in an order form. Such notice shall be deemed to be given when received, unless such notice is provided by email, in which case notice shall be deemed to be received when at the time the email is sent.

23. GOVERNING LAW. This Agreement and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the laws of Tennessee. All disputes, claims, and causes of action arising out of or related to this Agreement shall be brought in the state and district courts of the state of Tennessee and you hereby consent to the personal jurisdiction and venue of the courts in Nashville, Tennessee. You expressly waive any objection to such jurisdiction and venue.

 

SCHEDULE A
INTERPRETATION & DEFINITIONS
The following rules of interpretation apply in this Agreement. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders, and words in the singular shall include the plural and in the plural shall include the singular. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. A reference to a statute or statutory provision (i) is a reference to it as amended, extended or re-enacted from time to time; and (ii) shall include all subordinate legislation made from time to time under that statute or statutory provision. Except where a contrary intention appears, a reference to a clause is a reference to a clause of this Agreement. Clause headings do not affect the interpretation of this Agreement. A reference to (i) writing or written includes faxes and e-mail; (ii) any particular time in this Agreement is to the then current UK time, British Summer Time or Greenwich Mean Time, as applicable; and (iii) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s successors or permitted assigns.

In addition to the definitions setforth in the Agreement, the following terms shall have the following meanings:

Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.

Business Day: a day other than a Saturday, Sunday or U.S. Federal Holidays when banks in London are open for business.

Confidential Information: All information of either party not generally available to the public which is provided to the receiving Party by the disclosing Party or which the receiving Party has access to or discovers pursuant to the Agreement, including without limitation, all information relating the parties’ business and operations, business plans, financial records, customers, suppliers, vendors, products, costs, sources, strategies, inventions, procedures, forecasts, sales materials and data, technical advice or knowledge, contractual agreements, pricing, product specifications, trade secrets, including, procedures, distribution methods, inventories, marketing strategies, algorithms, designs, drawings, work sheets, blueprints, manufacturing processes, computer programs and systems and know-how or other intellectual property of a Party and their Affiliates that may be at any time furnished, communicated or delivered by a Party to the other Party, whether in oral, tangible, electronic or other form. Confidential information shall not include any (i) information which is or becomes generally available to the public through no wrongful act of receiving Party, or (ii) information known to receiving Party, as shown by written records, before receipt therefrom from the disclosing Party.

Controller: means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data; for the purposes of this Agreement, where Customer acts as processor for another controller, it shall in relation to Jacro be deemed as additional and independent Controller with the respective controller rights and obligations under the Agreement.

Data Protection Law: the applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of Personal Data under the Agreement (and includes, as far as it concerns the relationship between the parties regarding the processing of Personal Data by Jacro on behalf of Customer, the GDPR as a minimum standard, irrespective of whether the Personal Data is subject to GDPR or not).
Data Subject: an identified or identifiable natural person as defined by Data Protection Law, including Customer’s employees, contractors, business partners or other individuals having Personal Data stored in the Jacro Services.

Defect: an error in the Software that causes it to fail to operate substantially in accordance with the relevant Documentation.
Documentation: the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable and/or machine-readable forms relating to the Jacro Service or the Jacro Hardware by Jacro or made available to the Customer.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Normal Working Hours: the hours 8:30 am to 5:30 pm CT Monday to Friday, except U.S. Federal Holidays.

On-Premises Software: means the “on-premises” version of the Jacro Service.

Personal Data: any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

Personal Data Breach: a confirmed (1) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Personal Data or (2) similar incident involving Personal Data, in each case for which a Controller is required under Data Protection Law to provide notice to competent data protection authorities or Data Subjects.

Platform: the online software platform at www.internetticketing.com or such other website address as may be notified to the Customer from time to time.
Process/Processing: with respect to Personal Data, use of Personal Data to set up, operate, monitor and provide (a) the Jacro Service (including operational and technical support); (b) communication to Authorized Users; (c) storage of Personal Data in dedicated data centers; (d) upload any fixes or upgrades to the Jacro Service; (e) back up of Personal Data (f) computer processing of Personal Data, including data transmission, data retrieval, data access; (g) network access to allow Personal Data transfer; and (h) execution of instructions of Customer in accordance with the Agreement.

Processor: a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Controller, be it directly as processor of a controller or indirectly as subprocessor of a processor which processes personal data on behalf of the Controller.
Site(s): the location(s) at which the Jacro Service is installed, or the location venue receiving the Jacro Services, as agreed in writing between the parties.
Subprocessor: Jacro Affiliates and third parties engaged by Jacro or Jacro Affiliates in connection with the Jacro Services and which process Personal Data in accordance with the terms of this Agreement.

Jacro Hardware: all the computers and other equipment supplied to the Customer by Jacro, including the Computer Hardware and POS Stations.
Update: a new release or new version of all or any part of the Jacro Service released by Jacro after the Effective Date.

VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar additional tax or any other similar turnover, sales or purchase tax or duty levied in any other jurisdiction.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability: any weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

SCHEDULE B

SERVICE LEVEL AGREEMENT & SUPPORT

1. Service Availability Commitment: The Jacro Service shall be operational at least 99.9% of the time in any given year during the term of the Agreement. The “Operational Percentage” means the percentage of the total time during any given month that the Jacro Service is not subject to an Outage. An outage (“Outage”) means that the Jacro Service fails to operate in accordance with Customer’s service plan in an applicable Order Form. Outage does not include service suspension (i) for reasons of a Force Majeure event (as specified in Section 20 of the Agreement; or (ii) during times of maintenance (as specified in Section 4 this SLA). If a dispute arises about whether or not an Outage occurred, Jacro shall make a determination in good faith based on its system logs, monitoring reports and configuration records, which Jacro shall make available for auditing by Jacro and Customer at Customer’s and/or Jacro’s request. The “Outage Percentage” means the total duration of an Outage during a given year divided by the total time during such year.

2. Outage Reporting Process: Customer must inform Jacro in writing or by e-mail within ten (10) hours of the time it first notices an Outage or first believes that there has been an Outage. Failure to comply with this requirement will forfeit Customer’s right to receive a remedy for the Outage as described in Section 3 of this SLA.

3. Remedy: If the Operational Percentage is less than 99.9%, and if Jacro has fulfilled all of its obligations under the Agreement and none of the exceptions in Section 4 of this SLA apply, Jacro shall have the following sole and exclusive remedy: Jacro will provide Customer with a pro rata credit on Customer’s License Fee for the period in which the Outage occurred. The pro rata credit shall be calculated by multiplying the Outage Percentage with Customer’s total License Fee payment to Jacro (for the applicable Customer order) in the period during which the Outage occurred. Customer shall not have any remedies under the Agreement in connection with any circumstances addressed in Section 20 (Force Majeure) of the Agreement.

4. Maintenance: To ensure optimal performance of the Jacro Service, Jacro reserves the right to perform unscheduled emergency maintenance at any time. Additionally, Jacro reserves the right to perform scheduled maintenance that is designed not to impact the Jacro Service at any time.

5. Support Obligations: Jacro agrees to provide remote support (“Support Services”) via telephone and email during Normal Working Hours to provide reasonable assistance to the Customer in respect of the following: (a) remedying Defects in the Software; and (b) providing advice on the use of the Software. Jacro shall use reasonable endeavours to correct Defects notified to it by the Customer in a timely manner appropriate to the seriousness of the Defect in question. Jacro may, where practicable, provide support outside normal hours when a major problem is known to exist which has arisen during the normal support hours above and the problem is known to be urgent.

6. Extended Hours: The Support Services include extended hours coverage. Extended hours are 5:30 pm to 10:00 pm CT on weekdays and 10:00 am to 10:00 pm CT on weekends and Federal Holidays. Extended hours support is for genuine emergencies only through the contact telephone numbers provided to the Customer for that purpose. Routine problems not constituting an emergency should be reported preferably by e-mail but otherwise by voice message to the main answerphone so that the information is available to the Jacro at the beginning of Jacro’s next Business Day. Where appropriate, Customer systems and access to them through the agreed communications links need to be left operational so that Jacro can respond during hours when the Customer’s personnel may not be present. If, in Jacro’s reasonable opinion, the Customer is requesting an unusual or excessive level of support, Jacro shall inform the Customer, advise whether that level of support can be provided and (if Jacro is able to provide that support) confirm what additional fees or charges would be payable for the Customer as a consequence.

7. Data Migration: Jacro shall use reasonable efforts to ensure the accurate migration of any data but makes no warranties as to the completeness or accuracy of such migration. Customer shall be responsible for checking the accuracy and completeness of the migrated data and shall promptly give sufficient details to Jacro of any inaccuracies or omissions in order to permit Jacro to correct them.

8. Limitations on Support Services: Jacro’s Support Services do not extend to Microsoft Windows or any other operating systems unless specifically stated on the Support invoice. It is the Customer’s duty to use staff trained in the use of Windows. In the event of an individual PC failure, reloading of Windows is normally carried out by the hardware maintainer. Jacro will provide such advice and assistance as may be necessary to make such a reloaded PC operational on the System, subject to the Customer paying any applicable charges as may be notified by Jacro to the Customer to reflect the cost of such advice and assistance.

9. Additional Support Services. The Customer may ask Jacro to provide assistance in reconfiguring, troubleshooting or reloading existing or new hardware. Jacro shall provide the requested assistance within the timeframe agreed between Jacro and Customer for that purpose. Where such assistance is not a direct result of the Jacro Service, Jacro shall invoice the Customer for the cost of providing the required assistance (calculated on a time and materials basis at Jacro’s standard rates) and the Customer shall pay such costs in the terms of the Agreement.