Canada Sales Terms & Conditions

1. DEFINITIONS

1.1. “Agreement” means this Universal Agreement, including the DPA and all Supplements between the parties during the term of this Universal Agreement.

1.2  “Customer” means the party designated on the cover sheet of this agreement and executing and/or initialing this Agreement and any Supplement(s).  Additionally, Customer is the licensee of Software licensed under the terms of this Agreement.

1.3 “Documentation” means the documentation provided to Customer for use with Software.

1.4 “Equipment” means the point-of-sale terminals, peripheral devices, printers, network communication devices, computers and other equipment which is identified in a Supplement to this Agreement.  Equipment also means all third party software pre-loaded or installed upon such Equipment as well other third party software and packaged services identified in a Supplement which may be resold or sublicensed by Agilysys.

1.5  “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any jurisdiction in the world, whether or not registered or registrable.

1.6 “Professional Service Fees” means the fees charged to Customer by Agilysys for Professional Services.

1.7  “Professional Services” means the installation, integration, training or other professional services generally described in Section 3.1 and specified in a Supplement to this Agreement.

1.8  “Purchase Price” means the total amount specified in a Supplement for Equipment to be purchased and Software to be licensed.

1.9  “Services” means the Professional Services, Support Services and Subscription Services provided by Agilysys.

1.10 “Subscription Fees” means the fees for Subscription Services charged by Agilysys for the services described in Section 3.3.

1.11 “Subscription Services” means the Software hosting services generally described in Section 3.3 and specified in Supplements to this Agreement for the Software licensed to Customer by Agilysys.

1.12 “Supplement” means a document by which Customer orders Equipment, Software or Services.  The document may be (1) an Agilysys quote form accepted by Customer in a purchase order, shipment authorization or other similar document, which references the Agilysys quote number or otherwise matches the quote; or (2) a document entitled “supplement”, “contract” or similarly which is signed by authorized representatives of both parties, with all such documents being governed by the terms of this Agreement.  A Supplement shall specify the Equipment to be purchased, the Software to be licensed, the Services to be provided, quantity and price, and such other information as the parties may agree.

1.13 “Support Fees” means the fees charged by Agilysys for the services described in Section 3.4.

1.14 “Support Services” means the support services for the Software generally described in Section 3.4 and specified in Supplements to this Agreement.

1.15 “Software” means the Agilysys proprietary software products, in object code form, and related Documentation specified in a Supplement including any error corrections, modifications and updates thereto licensed by Agilysys to Customer under this Agreement.

2.LICENSE.

      2.1 Grant of License.  Subject to Customer’s compliance with the terms and conditions of this Agreement (including payment of all applicable license fees for Software), Agilysys grants to Customer a personal, non-exclusive, nontransferable license:  (a) to use the Software specified in a Supplement with the Equipment specified in a Supplement or other equipment which Agilysys has certified as compatible with the Software, and only for Customer’s internal use in its business at the location specified in the Supplement; and (b) to make one (1) copy the Software if reasonably necessary for internal back-up purposes.  All copies of the Software shall include all copyright, trademark and other proprietary notices as are contained on or in the original.  Customer may not transfer or assign Software licenses without the consent of Agilysys.  Any attempt by Customer to transfer or assign its license rights or obligations under this Agreement shall be void and of no effect.  Software licensed as part of this Agreement may incorporate an electronic repossession device which Agilysys can, and will, activate in the event that Customer does not pay, in full, to Agilysys all fees due for such Software licenses.  Customer understands that the electronic repossession device will prevent the Software from operating.  Upon Agilysys’ receipt of all payments due for Software, Agilysys will disconnect the electronic repossession device.

2.2  License Restrictions.  Except as expressly authorized in this Agreement, Customer will not:  (a) copy or modify the Software, in whole or in part except as permitted in Section 2.1(b); (b) sell, lease, transfer, sublicense or otherwise distribute the Software or any part thereof to any third party; (c) use the Software to provide service bureau, time sharing, application services provider, hosting or other computer services to third parties, or otherwise make the functionality of the Software available to third parties except as may be provided in a Supplement for Agilysys’ Subscription Services; or (d) disassemble, decompile, adapt or reverse engineer the Software nor permit any third party to do so, or create derivative works based on the Software, except to the extent such restrictions are prohibited by law.  Customer shall comply with any additional requirements provided in the Supplement(s) applicable for a particular Software product.

2.3 Limited Rights.  Customer’s rights in the Software will be limited to those expressly granted in this Agreement.  Agilysys reserves all rights and licenses in and to the Software not expressly granted to Customer herein.

2.4  Ownership.  As between Agilysys and Customer, Agilysys retains ownership of all worldwide right, title and interest in and to the Software and Documentation, including all worldwide Intellectual Property Rights therein.  Customer will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices appearing on the Software and Documentation as and will include such notices in any copies of the Software and Documentation made by the Customer which may be permitted under the Agreement.

3. SERVICES.

3.1 Professional Services.  Subject to Customer’s compliance with the terms and conditions of this Agreement (including any applicable Supplement), Agilysys will provide such Professional Services as are designated in Supplements to this Agreement.  Professional Services may include, without limitation, installation services and customized software development services to be performed by Agilysys’ professional services organization (which may include third parties under contract with Agilysys).  If Customer elects to either (a) perform its own installation of Equipment and/or Software, or (b) have a third party which has not been approved in writing by Agilysys perform installation of Equipment and Software, Agilysys may elect to refuse to provide Professional Services relating to any or all of such Equipment and/or Software.  All Intellectual Property Rights developed by Agilysys alone or jointly with Customer in connection with any Professional Services shall be owned by Agilysys and, unless otherwise specified in a Supplement, Customer shall be deemed to have a personal, non-exclusive, nontransferable license to use such Intellectual Property Rights consistent with the license granted in Section 2.1 or as otherwise expressly set forth in a Supplement.  All Professional Services will be subject to and performed in accordance with Agilysys’ professional services policy. Agilysys reserves the right to make changes to its professional services policy and prospectively change its fees at any time, however any fee changes shall not apply to Professional Services set forth and undertaken under a Supplement. 

3.2 Support Services.  Subject to Customer’s timely payment of Support Fees and compliance with the terms and conditions of this Agreement (including, without limitation, payment of outstanding invoices), Agilysys will provide Customer with Support Services for the Software specified in Supplements to this Agreement.  All Support Services will be subject to and performed in accordance with Agilysys’ support policy.  Agilysys reserves the right to make changes to its support policy and prospectively change its fees at any time. Customer shall not obtain Support Services in relation to the Software from any third party service provider other than Agilysys without Agilysys’ prior written consent.  If Customer elects to either (a) perform its own installation of Software, or (b) have a third party which has not been approved in writing by Agilysys perform installation of Software, Agilysys may refuse to provide Support Services for any or all of such Software. 

3.3 Subscription Services.  Subject to Customer’s compliance with the terms and conditions of this Agreement, Agilysys will provide Customer with the Subscription Services specified in Supplements to this Agreement.  All Subscription Services will be subject to and performed in accordance with Agilysys’ service level policies for Subscription Services in effect at the time.  Agilysys reserves the right to make changes to its service level policy and prospectively change its fees at any time however any fee changes shall not apply to Subscription Services set forth and undertaken under a Supplement.  No licenses to Software used to provide the Subscription Services are granted to a Customer who purchases Subscription Services.

3.4 Exclusions to Support Services and Subscription Services.  Notwithstanding any Supplement entered into between Customer and Agilysys for Support Services or Subscription Services, Agilysys will have no obligation to provide Support Services or Subscription Services of any kind for problems in the operation or performance of the Software to the extent caused by any of the following: (a) Customer’s use of software or hardware products not approved by Agilysys for use in conjunction with the Software; (b) modifications to the Software made by any party without Agilysys’ express written authorization; (c) Customer’s use of the Software other than as authorized in this Agreement (including Supplements) or as provided in the Documentation; or (d) Customer’s use of the Software without use of any error corrections or updates thereto provided by Agilysys (any item described in (a) through (d) above is a “Customer-Generated Error”).  If Agilysys determines that it is necessary to perform Support Services or Subscription Services for a problem in the operation or performance of the Software that is caused by a Customer-Generated Error, then Agilysys will notify Customer thereof as soon as Agilysys is aware of such Customer-Generated Error, and Agilysys will have the right to invoice Customer at Agilysys’ then-current published time and materials rates for all such Services, in addition to any Support or Subscription Fees already payable by Customer under any Supplement.  Agilysys shall have no support obligations of any kind with regard to the Equipment; provided, however, Agilysys may, in its sole discretion, offer Customer a separate hardware and/or software maintenance service contract with respect to the Equipment.

3.5 Non-solicitation.   During the term of this Agreement and for one (1) year thereafter, Customer shall not, without the prior written permission of Agilysys, solicit, hire, or otherwise engage, directly or indirectly, the services of any person who is or has been an employee of Agilysys or its affiliates during the term of this Agreement.  If Customer breaches this Section 3.5, Customer shall, on demand, pay to Agilysys a sum equal to one year's basic salary that was payable by Agilysys to that employee, plus the recruitment costs incurred by Agilysys in replacing such person.

4. ORDERING AND DELIVERY.

4.1 Ordering.  Customer’s signature on or issuance of a Supplement shall stand as Customer’s firm order to purchase the Software licenses, Equipment and Services specified in the Supplement.  No Supplement will be deemed accepted by Agilysys unless and until Agilysys accepts such Supplement in writing or unless Agilysys ships the items ordered to Customer.  To the extent of any conflict between this Agreement and the terms of a Supplement, the Supplement shall control with respect to the subject matter of such Supplement.  Any price quotation made by Agilysys under this Agreement shall remain valid and in effect for a period of thirty (30) days following the date of such quotation, unless a different period is specified in such quotation.

4.2 Delivery, Freight Costs and Risk of Loss.  Unless otherwise specified in a Supplement, all Equipment will be delivered ExWorks (Incoterms 2010) at the facility specified by Agilysys, and all Software will be delivered electronically.  For Customer locations in Canada, Agilysys will arrange shipment, prepay freight on behalf of the Customer and charge Customer for such freight. For any Customer location outside Canada, the Customer shall arrange freight and be responsible for export or import obligations.  Title to Equipment (excluding third party software) will pass to Customer at the time of delivery.  Customer will file any claims for damages directly with the carrier.  Agilysys is authorized to select the carrier unless otherwise agreed.  As applicable, Agilysys will invoice Customer for shipping and handling charges upon shipment.  Agilysys will use its reasonable efforts to accomplish delivery by any delivery date specified in a Supplement; however, unless otherwise expressly agreed in writing by Agilysys, Agilysys will not be liable for any expenses or damages incurred as a result of actual delivery after such indicated date, if any.  

4.3 Equipment Installation. Customer shall make available and agrees to promptly pay for all costs associated with providing a suitable place of installation and the necessary electrical power, outlets and air conditioning required for operating the Equipment as defined in the Equipment manufacturer’s installation manual or other documentation.  Customer is solely responsible for all unusual installation charges such as structural alterations and rental of heavy equipment necessary to install the Equipment at the location of installation.

4.4 Security Interest.  Customer hereby grants to Agilysys, its successors and assigns, a purchase money security interest in the Equipment and all proceeds thereof to secure the prompt payment by Customer when due of all amounts payable to Agilysys and all other obligations of Customer contained in this Agreement.  If Customer defaults in payment of any amounts due herein or fails to perform any provision of this Agreement, Agilysys shall have the right, after ten (10) days of such default or failure to pay, to enter the premises of Customer and remove and repossess any and all of the Equipment with or without notice or demand and in addition, shall have the right to exercise such other rights and remedies as may be available to Agilysys under this Agreement or by law.

4.5 Returns.  Customer may return Equipment only with Agilysys’ prior consent.  Upon confirmation of right to return, Agilysys shall issue or cause to be issued a document authorizing the return of such Equipment (“Return Material Authorization”).  Customer shall return Equipment freight prepaid, in accordance with Agilysys’ instructions in original packaging and in good condition, without alteration.  Customer assumes risk of loss for returned Equipment until receipt by Agilysys or its supplier at the designated return location.  Upon receipt of returned Equipment in accordance with this Section 4.5, Agilysys has the right to issue and Customer agrees to accept a credit memo in the amount of the value of the returned Equipment. For a period of one (1) year after issuance, the credit memo may be used as a credit against Agilysys invoices for future purchases.

4.6 Collateral Documents.  Customer agrees to accept and/or sign any license terms (such as an end user license agreement) or other third-party documentation reasonably required by Equipment manufacturers/licensors to accompany Equipment resold by Agilysys to Customer.

5. FEES.

5.1 Fees.  Customer will pay Agilysys the Purchase Price in the amounts and upon the terms set forth in a Supplement.

5.2 Professional Service Fees.  Agilysys’ quotations for fees for Professional Services may be described in a Supplement but are only Agilysys’ good faith estimates unless otherwise expressly agreed in a Supplement.  The actual fees for Professional Services will be billed based on work performed at the hourly rates quoted by Agilysys in the applicable Supplement.  Should Agilysys’ personnel providing Professional Services be requested by Customer to work on a weekend or a recognized holiday, Agilysys will issue its invoice for such services at its standard weekend or holiday rates.  Agilysys will use reasonable efforts to notify Customer if Agilysys determines that the actual costs are likely to exceed Agilysys’ estimates.

5.3 Support Fees.  The fees for Support Services shall be assessed on an annual basis in advance at Agilysys’ then-current rates and shall be non-refundable.  Support Services shall renew from year to year.  Agilysys may suspend or terminate Support Services if Customer fails to pay annual renewal fees or any other Agilysys invoices when due.  Pursuant to the provisions of Section 10, Support Services may be suspended in the event that Customer does not comply with the terms of this Agreement (including, without limitation, payment of annual support fees).  If Customer has a gap period for Support Services when it elected not to obtain Support Services from Agilysys for its Software, Agilysys may refuse to provide Support Services to Customer for such Software until (a) Agilysys completes an evaluation of Customer’s current status and updating of the Software to a serviceable level, and (b) Customer’s payment of all Support Fees for such gap period plus the prepayment of Support Fees for the upcoming Support Services period. 

5.4 Expenses.  Customer will reimburse Agilysys for any reasonable out-of-pocket expenses incurred by Agilysys in connection with performing any Services under this Agreement.  All such amounts will be due and payable upon receipt by Customer of Agilysys’ invoice.

5.5 Interest.  All past due amounts (except with respect to charges then under reasonable and good faith dispute) will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less.  Customer will reimburse Agilysys for all reasonable costs and expenses incurred in collecting any overdue amounts.

5.6 Additional Payment Terms and Taxes.  Prices are quoted, and Customer will pay all amounts due under this Agreement in the currency specified in the applicable Supplement, invoice, or as agreed by the parties. All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind.  However, upon Customer providing Agilysys with proof of Customer’s entitlement to tax exemption, Agilysys will not charge Customer fees or charges for which Customer is tax-exempt. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or Customer’s receipt or use of the Software and Services, except for taxes based on Agilysys’ net income. Customer agrees to pay Agilysys a 3% fee on the gross amount of any invoice that Customer requires Agilysys to process through a payment portal.

5.7  Subscription Fees.  Customer will pay the Subscription Fees as provided in a Supplement.  Subscription Fees shall be non-refundable.  If Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of Agilysys’ other rights or remedies, Agilysys reserves the right to suspend the Subscription Services, without liability to Customer, until such amounts are paid in full.

6. WARRANTIES.

6.1 Equipment Warranty.  Equipment purchased under this Agreement will be subject to any warranties provided by the manufacturers/licensors of such Equipment to end users thereof.  Agilysys warrants that, at the time the Equipment (excluding third party software) is shipped, Agilysys will be the lawful owner of the Equipment (excluding third party software), free and clear of any liens and encumbrances (other than those which may arise from this Agreement) and will have full right, power and authority to sell the same to Customer. Agilysys makes no warranty of any kind with regard to the Equipment.  Customer, recognizing that Agilysys is not the manufacturer/licensor of Equipment expressly waives any claim against Agilysys based upon any infringement or alleged infringement of any patent with respect to Equipment.  Agilysys does not warrant that the Equipment will meet Customer’s requirements, that the operation of the Equipment will be error-free or uninterrupted or that all errors will be corrected.  Customer acknowledges and agrees that in entering into this Agreement, Customer has made its own independent investigation of the Equipment and determined that it is suitable for Customer’s intended use and purpose.

6.2 Software Warranty.  Agilysys warrants that as of the date of delivery the Software will perform in all material respects in accordance with the published functional specifications which are in effect for such Software at that time.  If the Customer believes there is a Software nonconformity such that it does not meet published functional specifications which are in effect at that time, the Customer shall notify Agilysys within five (5) days of delivery. Agilysys does not warrant that the functions contained in a licensed Software program will meet the Customer's requirements or will operate in the combination which may be selected for use by the Customer, or that the operation of the licensed Software program will be uninterrupted or error free or that all Software program defects will be corrected.  As Customer’s sole remedy and Agilysys’ entire liability for any breach of these warranties, Agilysys will, at its option: (a) promptly correct any Software that fails to meet this limited warranty; (b) provide Customer with a reasonable procedure to circumvent the nonconformity; or (c) refund the license fees paid by Customer for the non-conforming Software upon Customer’s return of such Software to Agilysys and any license granted to the Customer to use the Software shall be automatically terminated.

6.3  Subscription Services Warranty.  Agilysys warrants that the Subscription Services will be performed in all material respects with Agilysys’ service level policy as in effect from time to time.  As Customer’s sole remedy and Agilysys’ entire liability for any breach of this warranty, Agilysys will, at its option: (a) promptly correct any Subscription Services that fail to meet this limited warranty; (b) provide Customer with a reasonable procedure to circumvent the nonconformity; or (c) refund the fees paid by Customer for the non-conforming Subscription Services.

6.4  Disclaimer of Warranties.  EXCEPT AS PROVIDED ABOVE, AGILYSYS MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE EQUIPMENT, SOFTWARE AND SERVICES.  AGILYSYS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AGILYSYS OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Agilysys expressly denies the authority of any of its employees or agents to make representations or warranties on Agilysys’ behalf that are not included in this Agreement.

6.5 Equipment Obsolescence.  Customer agrees that the responsibility for Equipment obsolescence shall be Customer’s alone. Customer also agrees that Agilysys shall not be responsible for its inability to meet any service level standards resulting from Equipment obsolescence or errors in the Equipment, as Agilysys in its sole discretion may determine.

7. INDEMNIFICATION.

7.1 Infringement Indemnity.  Subject to Customer’s compliance with the terms and conditions of this Agreement, Agilysys will defend or settle any action brought against Customer to the extent that it is based upon a claim that the Software, as provided by Agilysys to Customer under this Agreement and used within the scope of this Agreement, infringes any applicable patent or any copyright, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are fully and finally awarded by a court of competent jurisdiction, without opportunity for appeal, against Customer, provided that Customer:  (a) promptly notifies Agilysys in writing of the claim; (b) grants Agilysys sole control of the defense and settlement of the claim; and (c) provides Agilysys, at Agilysys’ expense, with all assistance, information and authority reasonably required for the defense or settlement of the claim.

7.2 Injunctions.  If Customer’s use of any of the Software hereunder is, or in Agilysys’ opinion is likely to be, enjoined due to the type of claim specified in Section 7.1 above, Agilysys may, at its sole option and expense:  (a) procure for Customer the right to continue using such Software under the terms of this Agreement; (b) replace or modify such Software so that it is non-infringing and substantially equivalent in function to the enjoined Software; or (c) terminate Customer’s rights and Agilysys’ obligations hereunder with respect to such Software and refund to Customer the unamortized portion of the license fees paid for such Software, based upon a straight-line three (3) year depreciation commencing as of the date of delivery to Customer of such Software.

7.3 Exclusions.  Notwithstanding the terms of Section 7.1, Agilysys will have no obligation of indemnity or liability otherwise for any infringement claim of any kind to the extent that it results from:  (a) modifications to the Software made by a party other than Agilysys or Agilysys’ authorized representative; (b) the combination, operation or use of the Software with equipment, devices, software or data not supplied by Agilysys, if a claim would not have occurred but for such combination, operation or use; (c) Customer’s failure to use updated or modified Software provided by Agilysys to avoid a claim; (d) Agilysys’ compliance with any designs, specifications or plans provided by Customer; or (e) Customer’s use of the Software other than in accordance with this Agreement or the Documentation.

7.4 Sole Remedy.  The provisions of this Section 7 set forth Agilysys’ sole obligations, and Customer’s sole remedies, with respect to any third party claims against Customer alleging infringement of intellectual property rights of any kind by any of the Software licensed under this agreement.

8. CONFIDENTIALITY.

8.1 Definition. “Confidential Information” means: (a) the Software; (b) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents and equipment) that is either marked “confidential” or “proprietary” or would reasonably be assumed to be confidential based on its content or the context surrounding its disclosure; and (c) the specific terms and pricing set forth in this Agreement or in any Supplement.

8.2 Exclusions.  Confidential Information does not include information that:  (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.

8.3 Use and Disclosure Restrictions.  Each party will not use the other party’s Confidential Information and will not disclose such Confidential Information to any third party outside the scope of this Agreement.  Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance.  The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) 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 other party to contest such order or requirement; and (b) on a confidential basis to its affiliates or its legal or financial advisors.  In addition, each party may disclose the terms and conditions of this Agreement on a confidential basis to present or future financial lenders, providers of venture capital and/or potential private investors in or acquirers of such party.

9. LIMITATION OF LIABILITY.

9.1 Total Liability. In no event shall Agilysys’ aggregate liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, exceed the total fees and charges paid or payable by Customer to Agilysys for the 12 months prior to the month in which the most recent event giving rise to liability occurred.

9.2 Exclusion of Damages.  In no event will Agilysys be liable to Customer for any indirect, special, incidental, punitive or consequential damages (including loss of use, data, business or profits) or for the cost of procuring substitute products or services arising out of or in connection with this Agreement or the use or performance of the Software, Equipment or the Services, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not such party has been advised of the possibility of such loss or damage.

10.1 Term.  This Agreement will begin on the Effective Date and will remain in effect thereafter unless terminated earlier in accordance with the terms of this Agreement.  Where the parties have executed a Supplement, the terms of this Agreement will continue to govern such Supplement until the obligations are completed as contemplated by the Supplement or the parties otherwise agree in writing.  The term of each Software license granted by Agilysys hereunder will begin upon the date of shipment by Agilysys of the Software and will remain in effect thereafter unless terminated in accordance with the terms of this Agreement

10.2 Termination for Cause.  Each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof.  Termination of this Agreement pursuant to this Section 10.2 does not terminate any Software license granted hereunder or any Supplement for Services that provides for a specific term over which the Services are to be provided unless expressly specified in the termination notice.

10.3 Termination for Convenience.  Each party will have the right to terminate this Agreement for convenience upon thirty (30) days written notice thereof.  Termination of this Agreement for convenience will not terminate any outstanding Supplement for Services that provides for a specific term over which the Services are to be provided.  In such case, this Agreement, as incorporated into the Supplement that provides for a specific term will remain in effect for the remainder of such term.  Termination of this Agreement pursuant to this Section 10.3 shall not terminate any licenses for any Software previously licensed.

10.4 Termination of Software Licenses.  Customer may terminate Software license(s) at its convenience upon written notice to Agilysys.  Customer’s Software license(s) shall terminate upon Customer’s violation of Section 2 of this Agreement, with or without notice from Agilysys, and as provided in Section 6.2, Section 11.1 or otherwise as explicitly provided in this Agreement. 

10.5 Effect of Termination; Customer Obligations.  Upon termination of any Software license granted hereunder, Customer’s rights to use Agilysys Software cease.  Customer will promptly return to Agilysys the applicable Software and all copies and portions thereof, and provide Agilysys with an officer’s written certification of Customer’s compliance with the foregoing.

10.6 Survival.  Except as otherwise provided in this Agreement, the rights and obligations of the parties contained in Sections 2, 3.5, 5, 6.4, 7, 8, 9, 10.3, 10.4, 10.5, 10.6, and 11 will survive the termination of this Agreement.

11. GENERAL.

11.1 Assignment; Change in Control.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their successors and permitted assigns.  Within ten (10) days after a Change in Control (as defined below) of Customer, Customer shall notify Agilysys of such Change in Control and seek Agilysys’ permission to retain the Software licenses previously granted to Customer under this Agreement.  After receipt of such notice or if Agilysys independently becomes aware of a Change in Control of Customer, Agilysys shall have the right to either (a) grant its written permission for the continuation of all Software licenses granted under this Agreement; or (b) terminate all Software licenses granted under this Agreement by providing notice of such termination to Customer.  A "Change in Control" means the occurrence of any one or more of the following:

(1) the purchase by a third party (including its affiliates) of ownership interests in the Customer which purchase(s) results in such third party (and its affiliates) owning 25% or more of the ownership interests in the Customer;

(2) a change in a majority of members of the board of directors (or other governing body) of Customer over a 12-month period;

(3) a reorganization, stock sale, merger, consolidation or sale or disposition of all or substantially all of the assets of the Customer, after which the Customer’s prior shareholders (or owners) no longer control the Customer; or

(4) the sale of all or substantially all of the Customer’s assets or a vote by the Customer’s board of directors (or other governing body) approving the liquidation of the Customer.

11.2 Governing Law; Disputes.  This Agreement will be governed by and construed in accordance with the laws of the province of Ontario, excluding its conflicts of law provisions.  Any action to enforce any rights or obligations under this Agreement shall be brought exclusively in the Superior Court of Justice, sitting in Toronto, Ontario.  Both parties consent to such jurisdiction and venue. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.  The parties agree that the Uniform Computer Information Transactions Act or any version thereof, adopted by any state, in any form ("UCITA"), shall not apply to this Agreement. To the extent that UCITA is applicable, the parties agree to opt out of the applicability of UCITA (and each and every provision thereof) pursuant to the opt-out provision(s) contained therein.

11.3 Severability.  If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

11.4 Waiver.  The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

11.5 Notices.  All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt.  All communications Customer will be sent to the addresses set forth above or to such other address as may be specified in accordance with this Section.  All communications to Agilysys shall be sent to the attention of Agilysys Legal Department, 171 East Liberty St. Ste. 207 Toronto ON M6K 3P6.  Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.

11.6 Force Majeure.  Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, supplies, war, terrorism, riot, acts of God or governmental action.

11.7  Publicity.   Customer agrees that Agilysys may identify Customer as a user of its products or recipient of its services and use Customer’s logo in sales presentations, marketing materials and press releases.

11.8  Export Control.  Each party shall comply with all Canadian and other foreign export control laws or regulations applicable to its performance under this Agreement.  Customer will not export or re-export Equipment or Software in violation of applicable laws and regulations.  Customer will defend, indemnify, and hold Agilysys harmless from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by Agilysys as a result of any violation of such laws and regulations by Customer or any of Customer’s agents or employees.

11.9  Relationship of the Parties. The parties understand and agree that their relationship hereunder is one of independent contractors and that they are not and shall not be construed as partners, joint ventures or agent and principal. In no event shall either party be authorized to act for or on behalf of the other party.

11.10 Entire Agreement.  This Agreement, including all Supplements and any exhibits hereto, constitutes the complete and exclusive agreement between the parties regarding any past, current or future orders of Equipment, Software or Services, and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to such subject matter.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.

11.11  Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof.  It shall not be necessary in making proof of this Agreement to produce or account for more than one counterpart hereof.

11.12  French Version Not Required.  The Parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais. It is the express wish of the Parties that this Agreement be only in English and not in French.

11.13 The Data Processing Agreement terms at https://www.agilysys.com/en/dpa/ (the “DPA”) are also incorporated into and are a part of this Agreement.