US Sales Terms & Conditions

1. DEFINITIONS.

1.1. “Agreement” means the agreement executed by the parties which incorporates by reference these Terms.

1.2 “Customer” means the party designated on the Agreement in the customer section and who executed the Agreement.

1.3 “Documentation” means the documentation provided or made available to Customer for use with Software or Services, including, without limitation, Agilysys’ Support Services handbook, and applicable service level policies and Services policies.

1.4 “Equipment” means the point-of-sale terminals, peripheral devices, printers, computers and other equipment which is identified in a Supplement. 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 are 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 Services” means the installation, integration, training and other professional or technical services specified in the Agreement.

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

1.8 “Subscription Services” means the Agilysys proprietary software-as-a service (SaaS) subscription services specified in Supplements, including related Support Services, as more particularly described in the applicable Documentation.

1.9 “Support Services” means support services for the Software and Subscription Services as described in the applicable Documentation as in effect from time to time.

1.10 “Software” means any Agilysys proprietary software products, in object code form, listed in the Agreement and related Documentation, including any error corrections, modifications and updates thereto and licensed by Agilysys to Customer.

1.11 “Terms” means this set of terms and conditions which are incorporated by reference into the Agreement and are part of the Agreement.

1.12 “Users” means those employees, agents and independent contractors of Customer who are authorized by Customer to use Subscription Services and related Documentation.

2. LICENSE.

2.1 Grant of License. Subject to Customer’s compliance with the terms and conditions of the 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 the Agreement with the Equipment specified in the Agreement 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(s) specified in the Agreement; and (b) to make one (1) copy of 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 the Agreement shall be void and of no effect. Software licensed under the 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.

2.2 License Restrictions. Except as expressly authorized in the 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; 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.

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

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 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 the Agreement and these Terms, Agilysys will provide such Professional Services as are listed or described in the 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). All Intellectual Property Rights developed by Agilysys alone or jointly with Customer in connection with any Professional Services shall be owned by Agilysys, and 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. All Professional Services will be subject to and performed in accordance with Agilysys’ professional services policy.

3.2 Support Services. Subject to Customer’s timely payment of fees for Support Services and compliance with the terms and conditions of the Agreement and these Terms (including, without limitation, payment of outstanding invoices), Agilysys will provide Customer with Support Services for the Software specified in the Agreement. Support Services shall automatically renew from year to year unless Customer provides written notice of termination at least 30 days prior to the end of the current annual Support Services term. 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 person 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 payment for Subscription Services specified in the Agreement in accordance with Section 5.4, the restrictions set forth in Section 3.4, and the other terms and conditions of this Agreement, Agilysys grants to Customer a non-exclusive, non-transferable right to permit the Users to use the Subscription Services and related Documentation during the term of the Subscription Services solely for Customer's internal use in its business. All Subscription Services will be subject to and performed in accordance with applicable service level policies in effect at the time. Agilysys reserves the right to make changes to its service level policies at any time. No licenses to any software used by Agilysys to provide the Subscription Services are granted to a Customer who purchases Subscription Services. Agilysys may provide Customer with access to software for use in connection with the Subscription Services. If Agilysys provides Customer with access to software for use in connection with the Subscription Services, Agilysys hereby grants Customer a non-exclusive, non-sublicenseable and non-transferable license to install and use such software during the applicable Subscription Services term in accordance with this Agreement and the applicable Documentation.

3.4. Customer’s Use of Subscription Services. Customer acknowledges that the Subscription Services, as well as the databases, software, hardware and other technology used by or on behalf of Agilysys to provide the Subscription Services and their structure, organization, and underlying data, information, and source code thereof, constitute Intellectual Property Rights of Agilysys. As an express condition to the rights to use the Subscription Services granted to Customer under this Agreement (including any applicable Supplement), and in addition to the other conditions in this Agreement, Customer will not and will not permit any of its Users or any third party to: (1) use or access the Subscription Services for any purpose other than Customer’s own internal business purposes; (2) modify, adapt, alter, translate, or create derivative works from the Subscription Services; (3) sublicense, distribute, sell, convey, assign, pledge, or otherwise transfer or in any way encumber the Subscription Services or any portion thereof; (4) use the Subscription Services for the benefit of any third party or make the Subscription Services available to any third party, whether through a service bureau, outsourcing, application service provider, hosting, lease, rental, loan or other arrangement; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Subscription Services or any portion thereof; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the Subscription Services; (7) access or utilize the Subscription Services for any purpose that is illegal in any way or that advocates illegal activity; (8) interfere in any manner with the operation of the Subscription Services or attempt to gain unauthorized access to the Subscription Services; (9) alter, obscure or remove any copyright notice, copyright management information, or proprietary legend contained in or on the Subscription Services; or (10) use or access the Subscription Services for any prohibited end uses under U.S. export controls. In addition, all use of the Subscription Services will be solely in accordance with any applicable Documentation provided by Agilysys.

3.5 Exclusions to Support Services and 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 or Subscription Services 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 or Subscription Services; (b) modifications to the Software made by any party without Agilysys’ express written authorization; (c) Customer’s use of the Software or Subscription Services other than as authorized in the Agreement 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 otherwise provide support for a problem in the operation or performance of the Software or Subscription 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 fees Support Services or Subscription Services already payable by Customer under the Agreement. Agilysys shall have no support obligations of any kind regarding Equipment except as specifically provided in any separate maintenance service contract with respect to Equipment.

4. ORDERING AND DELIVERY.

4.1 Ordering. Customer’s signature on the Agreement shall stand as Customer’s firm order to purchase the Software licenses, Equipment and Services specified in the Agreement. The Agreement is not deemed accepted by Agilysys unless and until Agilysys accepts the Agreement in writing or unless Agilysys ships the items ordered to Customer. Unless Agilysys agrees in a document executed by Agilysys to add to or modify the Terms, any additional terms or conditions proposed by Customer or any modifications to the Terms made by Customer shall have no effect on the Terms or the Agreement.

4.2 Delivery, Freight Costs and Risk of Loss. Unless otherwise specified in the Agreement, all Equipment will be delivered ExWorks (Incoterms 2010) at the US facility specified by Agilysys, and all Software will be delivered electronically. For Customer locations in the United States, Agilysys will arrange shipment, prepay freight on behalf of the Customer and charge Customer for such freight. For any Customer location outside the US, 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.

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 the Agreement. If Customer defaults in payment of any amounts due herein or fails to perform any provision of the Agreement, Agilysys shall have the right, after 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 the 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. 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, Customer agrees to accept a credit memo in the amount of the value of the returned Equipment. The credit memo may be used as a credit against Agilysys invoices for future purchases for a period of 1 year after issuance.

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 prices for Equipment and Services in the amounts and upon the payment terms set forth in the Agreement.

5.2 Professional Service Fees. The fees for Professional Services contained in the Agreement are only Agilysys’ good faith estimates unless otherwise expressly agreed in the Agreement. The actual fees for Professional Services will be billed based on work performed at the hourly rates quoted by Agilysys in the Agreement. 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 Software Support Fees. Fees for Software Support Services will be assessed on an annual basis in advance at Agilysys’ then-current rates and are non-refundable. Software Support Services will automatically renew from year to year unless Customer provides written notice of termination at least 30 days prior to the end of the current annual Software Support Services term. Agilysys may change any portion of the fees for Software Support Services upon any renewal of the annual Software Support Services term, such changes to take effect at the beginning of the subsequent term. If Customer elects not to obtain Software Support Services from Agilysys, Agilysys may refuse to provide future such Software Support Services to Customer until: (a) Agilysys evaluates Customer’s current Software status, (b) Customer agrees to install any necessary updates to the Software, and (c) Customer pays all Software Support fees for the gap period plus prepayment of Software Support fees for the upcoming annual Software Support Services.

5.4 Subscription Fees. Except as set forth herein, all fees for Subscription Services will be non-refundable once paid. Unless otherwise stated in the Agreement, the term of each Subscription Service will automatically renew thereafter for additional one year periods unless either party provides written notice of termination at least 30 days prior to the end of the current term. Agilysys may change any portion of the fees for Subscription Services upon any renewal of the Subscription Services term by providing notice of such changes at least 30 days prior to the end of the current term. Support Services for Subscription Services are included in fees for Subscription Services.

5.5 Expenses. Customer will reimburse Agilysys for any reasonable out-of-pocket expenses incurred by Agilysys in connection with performing any Professional Services under the Agreement. All such amounts will be due and payable within 30 days after the date of Agilysys’ invoice.

5.6 Interest. All past due amounts (except 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. Customer will pay all amounts due under the Agreement in U.S. currency. All fees payable under the Agreement are net amounts and are payable in full without deduction for taxes or duties of any kind. 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 the Agreement or Customer’s receipt or use of the Equipment, Software and Services, except for taxes based on Agilysys’ net income.

6. WARRANTIES.

6.1 Equipment Warranty. Equipment is 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 the Agreement) and will have full right, power and authority to sell the same to Customer. Agilysys makes no other 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 the 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. Customer shall notify Agilysys within 5 days of delivery of any non-conformity with such limited warranty. Agilysys does not warrant that (a) the functions contained in a licensed Software program will meet the Customer’s requirements, (b) the Software will operate in combination with any other software which may be selected for use by the Customer, (c) the operation of the licensed Software program will be uninterrupted or error free, or (d) all Software program defects will be corrected. As Customer’s sole remedy and Agilysys’ entire liability for any breach of the limited warranty granted in this Section 6.2, Agilysys will, at its option: (i) promptly correct any non-conforming Software; (ii) provide Customer with a reasonable procedure to circumvent the non-conformity; or (iii) 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 Services will be performed in all material respects in accordance with all applicable Documentation as in effect at the time the Services are performed. As Customer’s sole remedy and Agilysys’ entire liability for any breach of this warranty, Agilysys will, at its option: (a) promptly correct any non-conforming Subscription Services; (b) provide Customer with a reasonable procedure to circumvent the non-conformity; 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 THE 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 the 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 the 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 the Agreement and used within the scope of the Agreement, infringes any U.S. 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 the 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 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 the 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 THE 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 the Agreement.

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 the 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 the 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. AGILYSYS’ MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE LESSER OF $250,000 OR THE TOTAL AMOUNTS ACTUALLY PAID TO AGILYSYS BY CUSTOMER FOR THE EQUIPMENT, SOFTWARE OR SERVICES GIVING RISE TO THE LIABILITY.

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 THE 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. TERM AND TERMINATION.

10.1 Term. The Agreement will begin on the Effective Date and will remain in effect until terminated accordance with these Terms. The Agreement will continue to govern uncompleted Service obligations until the obligations are completed as contemplated by the Agreement or the parties otherwise agree in writing. The term of each Software license granted by Agilysys hereunder will begin upon the date of delivery by Agilysys of the Software and will remain in effect thereafter unless terminated in accordance with these Terms.

10.2 Termination for Cause. Each party will have the right to terminate the Agreement if the other party breaches any material provision of the Agreement and fails to cure such breach within 30 days after written notice thereof. Termination of the Agreement pursuant to this Section 10.2 does not terminate any Software license granted under the Agreement.

10.3 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 the Terms, with our without notice from Agilysys, and as provided in Section 6.2, Section 11.1 or otherwise as explicitly provided in the Agreement.

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

10.5 Survival. Except as otherwise provided in the Agreement, the rights and obligations of the parties contained in Sections 2, 3.5, 5, 6.4, 7, 8, 9, 10.2, 10.3, 10.4, 10.5, and 11 will survive the termination of the Agreement.

11. GENERAL.

11.1 Assignment. Customer may not assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the prior express written consent of Agilysys. Any attempt by Customer to assign its rights or obligations under the Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their successors and permitted assigns.

11.2 Non-solicitation. During the term of this Agreement and for one year thereafter, Customer shall not, without the prior written consent of Agilysys, solicit, hire, or otherwise engage, directly or indirectly, the services of any person who is or has within the preceding 12 months been an employee of Agilysys or its affiliates. If Customer breaches this Section 11.2, Customer shall, on demand, pay to Agilysys a sum equal to one year's base salary that was payable by Agilysys to that employee, plus the recruitment costs incurred by Agilysys in replacing such person.

11.3 Governing Law; Disputes. The Agreement will be governed by and construed in accordance with the laws of the State of Georgia, USA, excluding its conflicts of law provisions. Any action to enforce any rights or obligations under the Agreement shall be brought exclusively in the United States District Court for the Northern District of Georgia, sitting in Atlanta, GA, or in Fulton County, Georgia Superior Court if filed in state court, which may only be done if federal court jurisdiction is unavailable. 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 the 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 provisions contained therein.

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

11.5 Notices. All notices required or permitted under this Agreement will be in writing and delivered by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications to Customer will be sent to the address set forth on the Agreement 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, 1000 Windward Concourse, Suite 250, Alpharetta, GA 30005. Either party may change its address for notices under the 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 the 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. Customer will not export or re-export Equipment or Software in violation of the U.S. Export Administration regulations or other 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.

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 Waiver, Modification or Amendment. 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. Any 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 Entire Agreement. The Agreement, including any exhibits hereto and the Terms, constitutes the complete and exclusive agreement between the parties regarding the products listed in the Agreement, 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 the Agreement (including the Terms) will be effective only if in writing and signed by duly authorized representatives of both parties.

11.12 Counterparts. The 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 the Agreement to produce or account for more than one counterpart hereof.