UK 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 the 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 the Agreement 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 “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.

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

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

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

1.12 “use” in connection with the Software means loading the Software into temporary memory or permanent storage on the relevant computer, provided that installation on a network server for distribution to other computers is not "use" if the Software is licensed for use on each computer to which the Software is distributed.

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

2. SOFTWARE LICENCES.

2.1 Grant of Licence. Subject to Customer’s compliance with this Agreement and the payment of all applicable licence fees, Agilysys grants to Customer a non-exclusive and limited licence to use the Software specified in the Agreement, in executable form only, (a) during the term of such license (“Licence Term”), (b) at the indicated capacity and features and within the scope of the applicable licence types indicated in Section 2.2 below, and (c) solely for Customer’s internal business purposes at the location specified in the Agreement. Unless otherwise provided in the Agreement, the Licence Term shall be perpetual. Upon expiration or termination of the Licence Term, Customer may not use the Software unless Customer has renewed the licence. Agilysys authorizes Customer to make one copy the Software if reasonably necessary for internal back-up purposes or such number of backup copies of the Software as may be reasonably necessary for its lawful use. 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 licences without the consent of Agilysys. Software licensed as part of this Agreement may incorporate an electronic repossession device that will prevent the Software from operating which, upon notice to Customer, Agilysys may activate in the event that Customer does not pay in full all licence fees due for such Software.

2.2 Permitted Uses. Software licences are limited as set forth in the Agreement. Software licensed per “Terminal” is limited to use on or with one hardware device, such as a single computer, terminal, or handheld, mobile or other device. Any device which communicates transactions to another device for processing requires a separate license, regardless of where the executable code for such Software is stored or executes. Software licensed per “Room” is limited to use with the indicated number of rooms configured in the Software, regardless of the designation of such rooms as guest, conference, meeting, active, inactive or any other designation. Software licensed per “User” is limited to the indicated number of concurrent Users. Licenses may be limited on other bases for number of instances and sizes and functionality as set forth in the Agreement.

2.3 License Restrictions. Except as expressly authorized in the Agreement, Customer will not: (a) copy or modify the Software, in whole or in part; (b) sell, lease, lend, 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 to other locations of Customer, or otherwise make the functionality of the Software available to third parties or other locations of Customer; (d) operate the Software in a fashion that exceeds the capacity or capabilities that were purchased by Customer; (e) disassemble, decompile, unbundle, adapt or reverse engineer the Software or otherwise derive any of the Software’s source code nor permit any third party to do so, or create derivative works based on the Software, except in the case of (e) to the extent that any reduction of the Software to human readable form (whether by reverse engineering, de-compilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by Customer, unless Agilysys is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and Customer shall request Agilysys to carry out such action or to provide such information (and shall meet Agilysys’ reasonable costs in providing that information) before undertaking any such reduction. Customer may not use any information provided by Agilysys or obtained by Customer during any reduction permitted under this Section to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it. Customer shall further comply with any additional requirements provided in the Agreement.

2.4 Limited Rights. Customer’s rights in the Software will be limited to those expressly granted in the Agreement, including these Terms. Agilysys reserves all rights and licences in and to the Software not expressly granted to Customer herein.

2.5 Beta Software. If Software is designated in the Agreement as beta, pilot, pre-release, preview, non-production, evaluation, or by a similar description (“Beta Software”), then such Beta Software is intended for evaluation purposes and not for production use, is not supported, and may be subject to additional terms. Unless otherwise stated in the Agreement, the licence for any Beta Software will expire upon the earlier of one year from the date of the Agreement or the date that a version of the Beta Software becomes generally available without the applicable Beta Software designation. Customer acknowledges that Agilysys may never make Beta Software generally available. Agilysys will have no liability for any harm or damage arising out of or in connection with any Beta Software.

2.6 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 or the Documentation and will include such notices in any copies of the Software or the Documentation made by the Customer, if permitted under the Agreement.

2.7 Open Source Software. Open Source Software components provided with Software or any Subscription Service shall be distributed under the terms of the applicable Open Source Software licence agreements or copyright notices accompanying the Software or Subscription Service. The Open Source Software licence agreement may contain additional rights benefiting Customer and shall take precedence over this Agreement to the extent that this Agreement imposes greater restrictions on Customer than the applicable Open Source Software licence agreement. Customer shall indemnify and hold Agilysys harmless against any loss or damage which it may suffer or incur as a result of Customer's breach of any Open Source Software licence howsoever arising, and Agilysys may treat Customer's breach of any Open Source Software licence as a breach of the licence granted by Agilysys.

2.8 Software Maintenance. Subject to Customer’s compliance with the Agreement and these Terms, and the payment of all applicable Software Maintenance fees, Agilysys shall provide generally available Software update releases to Customer, which may include both error corrections and enhancements (“Software Maintenance”). Such releases may be provided either as patches to or complete replacement of the Software. A "generally available" release is a release which is available to all Agilysys customers. Software Maintenance update releases do not include new products, optional enhancements or new or add-on products that are priced and sold separately by Agilysys. Agilysys is the sole determiner of the availability and designation of an update release.

3. SUBSCRIPTION SERVICES.

3.1 Subscription Services. Subject to Customer’s compliance with this Agreement and payment of all applicable subscription fees, Agilysys grants to Customer a non-exclusive, non-transferable right to permit 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 licences 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, non-transferable and limited licence to install and use such software during the applicable Subscription Services term in accordance with this Agreement and the applicable Documentation.

3.2 Customer’s Use of Subscription Services. (a) 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, 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 unauthorised 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 applicable export controls. In addition, all use of the Subscription Services will be solely in accordance with any applicable Documentation provided by Agilysys.

(b) In addition, Customer shall (i) comply with all applicable laws and regulations with respect to its activities under this Agreement; (ii) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Customer's provision of such assistance as agreed by the parties, Agilysys may adjust any agreed timetable or delivery schedule as reasonably necessary; (iii) ensure that the Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any User's breach of this Agreement; (iv) ensure that its network and systems comply with the relevant specifications provided by Agilysys from time to time; and (v) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Agilysys’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer's network connections or telecommunications links or caused by the internet.

3.3 Subscription Term. The term of the Subscription Services will be as set forth in the Agreement. 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.

3.4 Beta Services. Agilysys may make services available to Customer that are designated in the Agreement as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description (“Beta Services”). Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. All terms of use and other Customer obligations concerning Subscription Services shall apply equally to Customer’s use of Beta Services. Unless otherwise stated in the Agreement, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Agilysys may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Agilysys will have no liability for any harm or damage arising out of or in connection with a Beta Service.

3.5 Suspension of Subscription Services. Without limiting Agilysys’ right to terminate this Agreement or any other right of Agilysys to suspend Subscription Services, Agilysys may suspend Customer’s access to any portion of any Subscription Services upon notice to Customer if deemed reasonably necessary by Agilysys to prevent any damage, injury, or harm to Agilysys, any portion of such Subscription Services, any other Agilysys customer or User, or any third party.

3.6 Improvements. All updates, upgrades, enhancements, fixes, corrections, new versions, derivative works, translations, adaptations, modifications, and other improvements to the Subscription Services, which are made available by Agilysys (the “Improvements”), whether provided by Agilysys or its licensors or created by either party alone or with the other party or any third party, and all Intellectual Property Rights therein and relating thereto, will remain the sole property of Agilysys. If Customer authors, creates, makes, invents, conceives, or otherwise develops, suggests, or recommends any Improvements to the Subscription Services, any Software, or any other portion of the Subscription Services, whether alone or jointly with Agilysys or any third party, and whether or not in violation of the Agreement, such Improvements and all Intellectual Property Rights therein or relating thereto shall be solely owned by Agilysys under the terms of this Agreement. Customer will, without additional consideration, promptly execute documents, testify, and take all other actions, at the reasonable expense of Agilysys, as Agilysys may deem reasonable or necessary to procure, maintain, perfect, defend, and enforce the full benefit of such ownership interests on a worldwide basis.

4. SUPPORT SERVICES.

4.1 Support Services. Subject to Customer’s compliance with the terms and conditions of the Agreement and these Terms, during the term of Software Maintenance with respect to licensed Software and during the term of the Subscription Services with respect to Subscription Services, Agilysys will provide Customer with Support Services for the Software and Subscription Services specified in the Agreement. All Support Services will be subject to and performed in accordance with all applicable Documentation. Agilysys reserves the right to make changes to its related Documentation at any time. Customer shall not obtain Support Services in relation to the Software or Subscription Services from any third-party service provider other than Agilysys without Agilysys’ prior written consent. Agilysys may refuse to provide Support Services for any Software that has not been installed by Agilysys.

4.2 Exclusions to Support Services. Agilysys will have no obligation to provide Support 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 or Subscription Services made by any party without Agilysys’ express written authorisation; (c) Customer’s use of the Software or Subscription Services other than as authorised in this Agreement or as provided in the Documentation; or (d) Customer’s use of 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 for a problem in the operation or performance of the Software or Subscription Services that is caused by a Customer-Generated Error, then Agilysys will have the right to invoice Customer at Agilysys’ then-current time and materials rates for all such Support Services, in addition to any Software Maintenance or Subscription fees already payable by Customer hereunder. 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.

5. PROFESSIONAL SERVICES.

Agilysys will provide the Professional Services designated in the Agreement. 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 the Agreement, Customer shall be deemed to have a personal, non-exclusive, nontransferable licence to use such Intellectual Property Rights consistent with the licence granted in Section 2 or as otherwise expressly set forth in the Agreement. All Professional Services will be subject to and performed in accordance with all applicable Documentation in effect at the time of service.

6. EQUIPMENT.

6.1 Equipment. Agilysys will supply Customer with the Equipment identified in the Agreement. Customer acknowledges that Agilysys is acting only as a distributor or reseller of any Equipment.

6.2 Equipment Installation. Customer shall make available 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.

6.3 Returns. Customer may return non-defective Equipment only with Agilysys’ prior consent. Customer must confirm with Agilysys the return of defective or otherwise non-conforming Equipment prior to its return. Upon confirmation of right to return, Agilysys shall issue or cause to be issued a return material authorisation authorising the return of such Equipment. Customer shall return Equipment freight prepaid, in accordance with Agilysys’ instructions, in original packaging and in good condition. 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, Agilysys has the right to issue and 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 one year after issuance.

6.4 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 policies resulting from Equipment obsolescence or errors in the Equipment.

6.5 Collateral Documents. Customer agrees to accept and/or sign any licence terms (such as an end user licence agreement) or other third-party documentation reasonably required by Equipment manufacturers/licensors to be agreed or accepted in connection with Equipment sold by Agilysys to Customer.

7. ORDERING AND DELIVERY.

7.1 Ordering. Customer’s signature on the Agreement shall stand as Customer’s firm order to purchase the Software licences, Equipment and Services specified in the Agreement. The Agreement will be deemed accepted by Agilysys unless and until Agilysys accepts the Agreement in writing or provides the items ordered to Customer.

7.2 Delivery, Freight Costs and Risk of Loss. Unless otherwise specified in the Agreement, all Equipment will be delivered ExWorks (Incoterms 2010) at the EU facility specified by Agilysys, and all Software will be delivered electronically. Unless otherwise agreed, Agilysys will arrange shipment, prepay freight on behalf of Customer and invoice Customer for shipping and handling charges upon shipment, and Agilysys is authorised to select the carrier. For any Customer location outside the United Kingdom, Customer shall arrange freight and be responsible for export and import obligations. Risk in Equipment will pass to Customer at the time of delivery. Customer will file any claims for damages directly with the carrier. Agilysys will use reasonable efforts to deliver by any date specified in the Agreement; 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.

8. FEES.

8.1 Fees. Customer will pay Agilysys the fees and other amounts specified in the Agreement as provided in the Agreement.

8.2 Subscription Fees. Except as set forth herein, all fees for Subscription Services will be non-refundable once paid. 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 in advance. Support Services for Subscription Services are included in fees for Subscription Services.

8.3 Professional Service Fees. Agilysys’ fees for Professional Services may be described in the Agreement but are only Agilysys’ good faith estimates unless otherwise expressly agreed in the Agreement. Actual fees for Professional Services will be invoiced based on work performed at the hourly rates stated in the Agreement. If Agilysys’ personnel providing Professional Services are requested by Customer to work on a weekend or a recognized holiday, Agilysys will charge for such services at its standard weekend or holiday rates. Agilysys will use reasonable efforts to notify Customer if actual fees are likely to exceed Agilysys’ estimates. Customer will reimburse Agilysys for any reasonable out-of-pocket expenses incurred by Agilysys in connection with performing any Professional Services. All such amounts will be due and payable within 30 days after the date of Agilysys’ invoice.

8.4 Software Maintenance Fees. Fees for Software Maintenance will be assessed on an annual basis in advance at Agilysys’ then-current rates and are non-refundable. Software Maintenance 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 Maintenance term. Agilysys may change any portion of the fees for Software Maintenance upon any renewal of the annual Software Maintenance term, such changes to take effect at the beginning of the subsequent term. If Customer elects not to obtain Software Maintenance from Agilysys, Agilysys may refuse to provide future such Software Maintenance to Customer.

8.5 Past Due Amounts. If Customer’s account is 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 any Subscription Services or Support Services, without liability to Customer, until such amounts are paid in full. Past due amounts (except with respect to amounts then under reasonable and good faith dispute) will incur interest at the lesser of 1.5% per month or the maximum rate permitted by law. Customer will reimburse Agilysys for all reasonable costs and expenses incurred in collecting any overdue amounts.

8.6 Additional Payment Terms and Taxes. Prices are stated, and Customer will pay all amounts due, in the currency specified in the Agreement. All fees and other amounts due hereunder 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 applicable 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 Equipment, Software and Services, except for taxes based on Agilysys’ net income.

9. WARRANTIES.

9.1 Equipment Warranty. Equipment is subject to any warranties provided by the manufacturers/licensors of such Equipment to end users thereof, to the extent that Agilysys is able to pass through claims to and recover from such manufacturers/licensors. 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 other warranty of any kind regarding 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. Customer acknowledges and agrees that Customer has made its own independent investigation of the Equipment and determined that it is suitable for Customer’s intended use and purpose.

9.2 Software Warranty. Agilysys warrants that as of the date of delivery and for a period of 30 days thereafter the Software will perform in all material respects in accordance with its published functional specifications which are in effect at the date of delivery. If Customer believes the Software does not meet published functional specifications which are in effect at that time, Customer shall notify Agilysys within five days of delivery. Agilysys does not warrant that the functions contained in a licensed Software program will meet Customer's requirements or will operate in combination with other equipment, software or systems which may be selected for use by Customer, or that the operation of the licensed Software will be uninterrupted or error free or that all Software 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 licence fees paid by Customer for the non-conforming Software, and any licence granted to Customer for such Software shall automatically terminate.

9.3 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. Agilysys’ sole obligation and Customer’s sole and exclusive remedy in the event of any failure by Agilysys to comply with the limited warranty in this Section 9.3 with respect to Professional Services and Support Services will be for Agilysys to, at its option, remedy the failure, re-perform the affected Services, or refund to Customer the portion of any fees attributable to the affected Services. Agilysys’ sole obligation and Customer’s sole and exclusive remedy in the event of any failure by Agilysys to comply with the limited warranty in this Section 9.3 with respect to Subscription Services will be for Agilysys to, at its option, remedy the failure, or as otherwise expressly stated in the applicable Documentation.

9.4 Disclaimer of Warranties. EXCEPT AS PROVIDED ABOVE, AGILYSYS MAKES NO WARRANTY OF ANY KIND REGARDING 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. BETA SOFTWARE AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. 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.

10. INDEMNIFICATION.

10.1 Infringement Indemnity. Subject to Sections 2.5 and 3.4, Agilysys will defend or settle any action brought against Customer to the extent that it is based upon a claim that the Software or Subscription Services, as provided by Agilysys to Customer under this 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.

10.2 Injunctions. If Customer’s use of any Software or Subscription Services is, or in Agilysys’ opinion is likely to be, enjoined due to the type of claim specified in Section 10.1 above, Agilysys may, at its sole option and expense (a) procure for Customer the right to continue using such Software or Subscription Services under the terms of this Agreement, (b) replace or modify such Software or Subscription Services so that it is non-infringing and substantially equivalent in function to the enjoined Software or Subscription Services, or (c) terminate Customer’s rights and Agilysys’ obligations hereunder with respect to such Software and Subscription Services and refund to Customer, the unamortized portion of the licence fees paid for such Software, based upon a straight-line three year depreciation commencing as of the date of delivery to Customer of such Software.

10.3 Exclusions. Notwithstanding the terms of Section 10.1, Agilysys will have no obligation of indemnity or any liability of any kind 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’ authorised representative; (b) the combination, operation or use of the Software or Subscription Services with equipment, devices, software, services 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 or Subscription Services other than in accordance with this Agreement or the Documentation.

10.4 Sole Remedy. This Section 10 sets 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 or Subscription Services provided under this Agreement.

11. CONFIDENTIALITY.

11.1 Definition. “Confidential Information” means: (a) the Software; (b) the Documentation; (c) 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 (d) the specific terms and pricing set forth in this Agreement.

11.2 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.

11.3 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.

12. DATA PRIVACY AND SECURITY.

12.1 Customer Data. Customer is solely responsible for all data, information and other content provided to Agilysys by or on behalf of Customer or any User or third party through the Subscription Services or otherwise (“Customer Data”). Customer hereby grants, and represents and warrants to Agilysys that Customer has the right to grant, to Agilysys a nonexclusive, royalty-free, fully paid, worldwide licence to reproduce, distribute, display, perform, prepare derivative works of, and otherwise use all Customer Data, and to grant sublicences of the foregoing, as necessary for performing its obligations under this Agreement. Agilysys is under no obligation to review any Customer Data for accuracy or potential liability. Customer assumes all risks associated with the use of any Customer Data, including any reliance on its accuracy, completeness or usefulness by others, or any act by Customer or any User or third party acting on behalf of Customer that discloses any Customer Data or makes Customer or any third party personally identifiable. Without limiting the foregoing, Agilysys has the right (but not the obligation) to review any Customer Data, investigate, and/or take appropriate action against Customer in its sole discretion if Customer violates the Agreement. Such acts may include removing or modifying Customer Data.

12.2 Payment Card Security. In the event Agilysys stores, processes, receives or transmits payment card transaction data and other data of Customer protected under the Payment Card Industry Data Security Standards (“Payment Card Data”) on behalf of Customer, Agilysys acknowledges and agrees that it is responsible for securing Payment Card Data, and Agilysys will maintain a data security program providing for reasonable and appropriate administrative, technical, and physical safeguards and security measures designed to protect Payment Card Data. Agilysys will comply with applicable Payment Card Industry Data Security Standards (including the payment application data security standards).

12.3 Data Privacy. Agilysys shall, in providing the Subscription Services, comply with its Privacy Policy relating to the privacy and security of Customer Data available at www.agilysys.com or such other website address as may be notified to Customer from time to time, as such document may be amended from time to time by Agilysys in its sole discretion. If Agilysys processes any Customer Data on Customer's behalf when performing its obligations under this Agreement, the parties record their intention that Customer shall be the data controller and Agilysys shall be a data processor and in any such case (a) Customer acknowledges and agrees that the Customer Data may be transferred or stored outside the European Union (EU) or the country where Customer and the Users are located in order to carry out the Services and Agilysys' other obligations under this Agreement; (b) Customer shall ensure that Customer is entitled to transfer the relevant Customer Data to Agilysys so that Agilysys may lawfully use, process and transfer the Customer Data in accordance with this Agreement on Customer's behalf; (c) Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; (d) Agilysys shall process the Customer Data only as required to provide Services under this Agreement; and (e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Customer Data or its accidental loss, destruction or damage.

12.4 Breach Notification. Agilysys will notify Customer without undue delay if Agilysys becomes aware of a data breach affecting Customer Data.

12.5. Certifications and Audit Reports. Upon Customer’s request, to the extent available and subject to the confidentiality obligations set forth in these Terms, Agilysys will make available to Customer (or Customer’s independent, third-party auditor) information regarding Agilysys’ compliance with the security obligations set forth in these Terms in the form of third-party certifications and audit reports.

12. LIMITATION OF LIABILITY.

12.1 Total Liability. Agilysys’ maximum liability arising out of or related to this 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.

12.2 Exclusion of Damages. In no event will Agilysys be liable to Customer (or any person claiming under or through Customer) for any indirect, special, incidental, punitive or consequential damages (including without limitation loss of use, loss or corruption of data, business opportunity or goodwill, loss of anticipated savings or profits whether direct or indirect) 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.

12.3 The exclusions in Sections 9.4, 10 and 12 shall apply to the fullest extent permissible at law, but Agilysys does not exclude liability for (a) death or personal injury caused by the negligence of Agilysys, its officers, employees, contractors or agents, (b) fraud or fraudulent misrepresentation, and (c) any other liability which may not be excluded by law.

13. TERM AND TERMINATION.

13.1 Term. This Agreement will remain in effect until terminated in accordance with the terms of this Agreement.

13.2 Termination for Cause. (a) Either party may terminate this Agreement immediately upon notice to the other party if the other party: (i) materially breaches this Agreement and fails to remedy such breach within 30 days after receiving notice of the breach from the other party; or (ii) materially breaches this Agreement in a manner that cannot be remedied. (b) Termination of this Agreement pursuant to this Section 13.2 does not terminate any Software licence except as provided in Section 13.4 or otherwise as explicitly provided in this Agreement.

13.3 Termination of Subscription Services. Upon any termination of any Subscription Services: (a) all rights and licences to such Subscription Services granted to Customer under the Agreement will immediately terminate; (b) Agilysys will be under no further obligation to retain any Customer Data held by Agilysys through the Subscription Services; and (c) Customer will cease all use of all applicable Subscription Services and any software licensed for use with the Subscription Services.

13.4 Termination of Software Licences. Customer may terminate any Software licence upon written notice to Agilysys. Customer’s Software licences shall terminate upon Customer’s violation of Section 2 of this Agreement, with or without notice from Agilysys, and as provided in Section 9.2, Section 13.2 or otherwise as explicitly provided in this Agreement. Upon termination of any Software licence granted hereunder, Customer’s rights to use the Software cease. Customer will promptly return to Agilysys or delete or erase the applicable Software and all copies and portions thereof. Upon the request of Agilysys, an officer of Customer will certify in writing to Customer's compliance with the terms of this Section. Unless terminated pursuant to this Section, a Software licence shall terminate automatically at the end of the term set out in the Agreement.

13.6 Survival. Except as otherwise provided herein, the rights and obligations of the parties contained in Sections 2, 5, 9.4, 10, 11, 12, 13 and 14 will survive the termination of this Agreement.

14. GENERAL.

14.1 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior 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.

14.2 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 Restricted Person. If Customer breaches this Section 14.2, Customer shall, on demand, pay to Agilysys damages equivalent to the costs of Agilysys hiring a temporary and/or permanent replacement (including but not limited to recruitment costs and any additional salary or other costs reasonably incurred) such damages to be capped at 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. In this Section “Restricted Person” means anyone who is at the relevant time or has been employed or engaged by Agilysys or its affiliates within the preceding 24 months and who could damage the interests of Agilysys or its affiliates and with whom Customer dealt in the preceding 24 months.

14.3 Governing Law; Disputes. This Agreement will be governed by and construed in accordance with the laws of England and Wales, excluding its conflicts of law provisions. Customer agrees for the benefit of Agilysys that the courts of England and Wales shall have jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) and that Customer shall not bring any action against Agilysys in any other jurisdiction. Any action to enforce any rights or obligations under this Agreement may be brought by Agilysys in any court in any country. 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.

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

14.5 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 notices to Customer will be sent to the address set forth above. All communications to Agilysys shall be sent to Agilysys UK Ltd, 1st Floor, York House, 41 Sheet Street, Windsor, SL4 1DD, United Kingdom, attention: Agilysys Legal Department. 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.

14.6 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.

14.7 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.

14.8 Export Control. Each party shall comply with all applicable 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 resulting from any violation of such laws and regulations by Customer or any of Customer’s agents.

14.9 Relationship of the Parties. The parties 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 authorised to act for or on behalf of the other party.

14.10 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 authorised representatives of both parties.

14.11 Entire Agreement. Customer agrees that the Agreement and these Terms represent the entire understanding and agreement between the parties with respect to the subject matter hereof, superseding all proposals, negotiations, understandings and representations or prior agreements, oral or written, and all other communications between the parties.

14.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.