Access Americas Hospitality Core Terms

Access Americas Hospitality Core Terms

1.1 These terms govern Our supply of the Products and Services described in each Order. By signing an Order, You accept these terms.

1.2 The Agreement consists of: (a) each Order; (b) these terms; (c) the Data Processor Terms; and (d) each set of Product Specific Terms applicable to the Products You have purchased.

1.3 If those documents conflict, the order of precedence is: (a) any provision of the Order that expressly states it overrides this clause 1.3; (b)these terms ; (c) the AI Terms, in respect of AI Features only; (d) the Product Specific Terms; (e) any supplementary terms referenced in these terms; and (f) the remainder of the Order.

1.4 Appendix 2 lists the only documents that sit outside these terms. Each is a central platform or customer success process document, each applies in the current version from time to time rather than the current version when You sign Your Order, and each is published at the location stated in Appendix 2. All other terms governing Our supply to You are set out in this document or will otherwise be documented in the Order.

1.5 The Access entity contracting with You is identified in Appendix 1. Where an Order covers Products supplied by more than one Access entity, You have a separate agreement with each on these terms, and each is severable from the others. Where You purchase Consulting Services without the underlying Product, the contracting entity is the one that supplies the Product to which the consulting relates.

1.6 Additional terms agreed in an Order apply for that Order's Initial Term only. The then-current version of these terms applies from the start of any Renewal Term.

Capitalized terms have the meanings below. Other terms have their ordinary meaning. “Including” is not a term of limitation.

Access Success Plan means the packaged support service set out in Your Order, delivered in accordance with the relevant datasheet.

Agreement means the agreement between Us, as described in clause 1.2.

AI Features means any artificial intelligence functionality within a Product, governed by the AI Terms.

AI Terms means Our terms governing the use of AI Features, published at https://www.theaccessgroup.com/en-gb/legal-hub/ai-terms/. The AI Terms are central platform terms and apply in the current version as updated by Us from time to time. They form part of the Agreement and, in respect of AI Features, prevail over these terms.

Affiliate means any entity that controls, is controlled by, or is under common control with a party.

API Supplementary Terms means Our supplementary API terms as set out in Appendix 2, which We update from time to time.

Authorized User means any of Your employees, or an employee of a Permitted User, whom You permit to access the Products.

Confidential Information means any information relating to a party's business, operations, customers, pricing, products (including technical and security information), strategies, trade secrets, know-how, personnel or suppliers; any information designated confidential; and any other information that ought reasonably to be treated as confidential, whether or not marked as such.

Consulting Services means the consultancy services set out in an Order, which may include FlightPath, training, implementation, configuration, integration and general IT consultancy.

Contract Year means each 12-month period during the License Term beginning on the Start Date, or any other period the Order specifies.

Critical Upgrade means an update to a Product that is critical to its security or functionality, or to personal data, as We identify acting reasonably.

Customer Content means the information, software, text, images, audio, video and other material that You or Your Authorized Users provide to, or display or make available through, a Product. Customer Content excludes any category of data governed exclusively by the AI Terms.

Data Processor Terms means Our terms governing Our processing of personal data on Your behalf, which form part of the Agreement, as set out in Appendix 2.

Documentation means the user guides, manuals and other materials We make available describing the Products and their use, as updated from time to time.

Effective Date means the date You sign the Order.

Fees means all amounts payable by You under the Agreement, including subscription, license, support, consulting, usage and excess usage charges, exclusive of Taxes.

FlexPoints means Our method of pre-purchasing eligible Consulting Services, on the terms of the FlexPoints Datasheet, which is a central customer success process document and applies in the current version from time to time.

FlightPath means Our defined implementation process for a Product, where available, as described in the relevant overview We make available.

Hardware means the physical equipment We supply to You under an Order, whether purchased or supplied as hardware-as-a-service, as described in that Order, which shall be governed by either the Hardware Terms or HaaS Terms (as set out in Appendix 2).

Hardware Terms means Our hardware purchase terms referenced in Appendix 2, as We update them from time to time.

Initial Term means 36 months from the Start Date, or any other period the Order specifies.

Intellectual Property Rights means all intellectual and industrial property rights anywhere in the world, registered or not and including applications, including patents, trademarks, logos, database rights, design rights, inventions, know-how, trade secrets and copyrights.

Installation Date means the sooner of the date the Software (or SaaS, as applicable) is made available or 90 days after the Effective Date.

License Term means the Initial Term together with each Renewal Term.

Order means each document setting out the Products or Services We will supply and the associated commercial terms, including an order form or statement of work. Some Orders prepared by Us require Your signature only.

Permitted User means an entity identified as such in an Order that is permitted to use the Product licensed to You thereunder.

Product means each software-as-a-service (SaaS), hosted or licensed software product identified in an Order, excluding Services and Third Party Products.

Product Fact Sheet means the document described as a product fact sheet that We make available for the relevant Product, in the current version from time to time.

Product Specific Terms means any product-specific terms identified in Your Order as applying to a Product You have purchased. No Product Specific Terms apply unless Your Order identifies them.

Renewal Term means each 12-month renewal period, or any other period the Order specifies (which may also be referred to as a Further Term).

Sanctioned Country means Cuba, Iran, North Korea, Syria, Russia, or any Russian-occupied territory of Ukraine.

Sanctions Target means any natural or legal person that is subject to any sanction, export control, embargo or dual-use restriction administered by the United Nations, the United States, the United Kingdom or the European Union, is resident or incorporated in a Sanctioned Country, or is owned or controlled by such a person to the extent that ownership or control causes it to be subject to the same restrictions.

Service(s) means the technical support, Consulting Services, FlightPath, hosting, hardware support and other professional services set out in an Order.

Software means the Access Product as specified in the Order, which is considered Software not SaaS.

Start Date means the date You sign the Order, or any other date the Order specifies.

Taxes means all sales, use, excise, gross receipts and other similar transaction taxes, and any related interest and penalties, other than taxes on Our net income.

Third Party Product means any software, platform, service or other product owned or licensed by a third party that We license or make available to You under an Order, subject to the applicable Third Party Terms.

Third Party Terms means the terms applicable to a Third Party Product, as provided to You from time to time.

Warranty Period means 12 months from the Start Date.

We, Us, Our means the Access entity identified in Appendix 1 and, where the context requires, its Affiliates.

You, Your mean the customer named in the Order.

3.1 The Agreement begins on the Start Date and continues for the Initial Term. It then renews automatically for successive Renewal Terms unless either party gives the other not less than 90 days' written notice of non-renewal, or unless it is terminated under clause 11. Your notice of non-renewal must be given through the following termination form: Request to Cancel Access Hospitality Services (available at https://forms.cloud.microsoft/pages/responsepage.aspx?id=oZWRc9b1mk2sQqHbt8dBPSmhPRO6o2ZHtnT2OgmBsrZUQkpIVlFRTUtVQUxUTVVBSEdKMUZJWloxNi4u&route=shorturl), unless We notify You about an update to the account support process, which We may update from time to time. 

4.1 You agree to pay the Fees set out in each Order, in US dollars (unless Your Order specifies otherwise), without deduction, set-off or counterclaim, within 30 days of the invoice date. Except where expressly stated, Fees are non-refundable and Orders are non-cancelable.

4.2 Fees are exclusive of Taxes. You will pay all Taxes other than those for which You have given Us a valid exemption certificate, and You are responsible for the accuracy of that certificate and of the location data on which Taxes are assessed.

4.3 We may increase the Fees not more than once in each Contract Year. At the end of the Initial Term or any Renewal Term, We may adjust Your Fees to Our then-current list price. Any fee increase imposed on Us by the provider of a Third Party Product will be passed through to You.

4.4 You will notify Us in writing of any invoice dispute, with reasonable detail, within 30 days of the invoice date. An invoice not disputed within that period is deemed accepted as correct and You waive the right to dispute it. The parties will seek to resolve disputed invoices promptly and in good faith.

4.5 If Fees become overdue and have not been disputed under clause 4.4: (a) We will notify You in writing or by notification within the Product; (b) if they remain unpaid 30 days after that notice, We may (i) suspend or remove Your access to the Products and Services, (ii) charge interest at the lesser of 1.5% per month or the maximum rate permitted by law, and (iii) withdraw any discount, in each case with effect from the date of that notice; and (c) Your payment obligations continue in full during any suspension. You will reimburse Our reasonable costs of collection, including reasonable attorneys' fees, notwithstanding clause 10.

4.6 At any time after the 30-day period in clause 4.5(b) expires, or on or after termination, We may, at our election and by written notice accelerate and declare immediately due and payable all Fees You have committed to pay for the remainder of the then-current term across all Orders then in effect (the “Accelerated Sum”). The Accelerated Sum excludes Fees disputed under clause 4.4 and carries interest under clause 4.5(b) on any part unpaid more than 14 days after Our notice.

4.7 The Accelerated Sum represents Fees You have already committed to pay for the term You selected. Acceleration alters only the timing of payment, not the amount owed, and is not a penalty. It does not limit any other right or remedy available to Us.

5.1 Subject to payment of the Fees, We grant You a non-exclusive, revocable, non-transferable right, without the right to sublicense, to use each Product for the License Term. The Products are licensed for use by You, Your Permitted Users and Your Authorized Users. Any act or omission of a Permitted User or Authorized User is treated as Your act or omission. You will designate one primary and one alternate administrator as Your authorized representatives for all communications under the Agreement.

5.2 You may use the Products as supplied and configure those elements designed to be configured. You will not: (a) sell, transfer or sublicense access credentials, except to Authorized Users in accordance with the Agreement; (b) reverse engineer, decompile, modify or otherwise interfere with any Product or Third Party Product, or expose its source code, internal logic or algorithms; (c) attempt to obtain source code or to remove or circumvent any security device; or (d) conduct penetration testing on any Product. You may request in writing, not more than once in each Contract Year, a redacted copy of Our most recent penetration test report for a Product. Where a Product includes components that protect digital material, You will not override or circumvent the applicable usage rules or reproduce, publish, or distribute that material without authorization.

5.3 You are responsible for keeping all log-on credentials secure and confidential for all activity under them. Where multi-factor authentication is available for a Product You will enable it and keep it enabled. You will notify Us immediately if a credential is compromised and We will revoke its permissions and issue a replacement.

5.4 If multi-factor authentication was available for a Product and You had not enabled it before a credential was compromised, We are not liable for any costs, claims, expenses, or liabilities arising from that compromise to the extent attributable to the failure to enable multi-factor authentication You will indemnify Us against all costs, claims, expenses (including reasonable attorneys' fees) and liabilities, direct and indirect, that We incur as a result.

5.5 Acceptable use. You will not, and will ensure that no Permitted User or Authorized User will, use a Product to: (a) store, transmit or make available material that is unlawful, defamatory, obscene or harassing, or that infringes a third party's rights; (b) store, transmit or make available malicious code, or anything designed to disrupt or gain unauthorized access to any system; (c) send unsolicited commercial communications; (d) impersonate any person or misrepresent an affiliation; (e) attempt to gain unauthorized access to any Product, account or network, or to interfere with or place undue load on a Product or its infrastructure; (f) develop, train or benchmark a competing product or service, or publish any benchmark of a Product, without Our prior written consent; or (g) act in breach of any applicable law or of the rights of any third party. You will require each Authorized User, as a condition of access, to agree to the applicable terms of the Agreement and to comply with this clause 5.5, and if You become aware of a breach You will notify Us immediately and remove that user's access. We may suspend access to a Product where We reasonably believe this clause has been breached and suspension is necessary to protect the Product, Our other customers or any person.

5.6 Where a Product has usage thresholds set out in Your Order and You exceed them, We will invoice You for the excess from the date it began and will increase the threshold and associated Fees for the following Contract Year at Our then-prevailing rates. We may assess your use remotely to verify compliance with agreed thresholds.

5.7 We may recommend updates to a Product from time to time and will identify any Critical Upgrade. You will engage with the upgrade process and implement Critical Upgrades within the timeframe We specify. If You do not implement a Critical Upgrade: (i) We may limit technical support; (ii) You assume the security risks of operating an unpatched version; and (iii) We may terminate the Agreement; and (iv) You will indemnify Us against all costs, claims and liabilities, direct and indirect, that We incur as a result.Where additional work is required to implement an upgrade due to Your customizations or modifications, We may charge for that work at Our then-current rates.

5.8 We may add, remove or amend features of a Product without notice, including disabling or limiting any application programming interface. Where We change or discontinue an application programming interface We will use commercially reasonable efforts to support the previous version for 12 months, unless doing so would (a) present a security or intellectual property risk; (b) be economically or technically burdensome; or (c) be necessary to comply with law or a governmental request. Where we provide an application programming interface as part of a Product or Service, the API Supplementary Terms also apply and your use of it constitutes acceptance of those terms.

5.9 We may verify that Your use of the Products complies with the Agreement. You will cooperate reasonably and provide access to relevant systems and records. If You unreasonably refuse or delay, We may suspend or terminate Your access and pursue any other remedy. If We identify unauthorized use or other non-compliance You will reimburse Our reasonable verification costs and pay additional Fees for that use at Our list price current on the invoice date. Where Your Order grants You a right to audit Us, that audit is subject to the following conditions: You give Us at least 30 days' prior written notice; the audit takes place not more than once in any Contract Year and during normal business hours; it is conducted by You or by an independent auditor who is not Our competitor and who has given confidentiality undertakings acceptable to Us; it does not extend to any other customer's data, to Our source code, or to any infrastructure shared with Our other customers; You bear Your own costs and Our reasonable costs of supporting the audit; and no recording of any kind is made without Our prior written consent. If You do not meet those conditions We may postpone or end the audit, or require the deletion or return of any recording.

6.1 We will perform the Services set out in Your Order in accordance with good industry practice, using appropriately skilled personnel. We rely on the accuracy and completeness of the data, documents and information You provide and are not obliged to verify them.

6.2 To enable Us to perform, You will at no charge to Us: (a) provide reasonable access to relevant locations, equipment and systems; (b) make available qualified personnel familiar with Your equipment and operations; (c) make available the Documentation, information, data and computing facilities We reasonably require; (d) appoint a representative for each Order; (e) ensure Your equipment meets the agreed specification; and (f) remain responsible for any third party You control or contract with on whom We rely. You acknowledge that implementation will involve some disruption to Your staff and processes.

6.3 We are not liable for delay caused by Your failure to cooperate, and any resulting rescheduling may attract additional charges. If We delete or return Your data on Your instruction and You later require it restored, We will charge Our then-prevailing rates for the restoration work, if restoration is possible, and for any further work required to re-input the data.

6.4 Consulting Services are performed on a time and materials basis, or on the basis of a FlightPath process, as the Order specifies. Fees stated in an Order for Consulting Services are estimates only and exclude travel, meals and accommodation, which are charged at cost as incurred, supported by receipts on request, and limited to economy class air travel, standard rail fare and reasonable mid-market accommodation unless Your Order provides otherwise.

6.5 We will provide technical support from the date You sign the Order and throughout the License Term at the level of the Access Success Plan You have purchased. If Your Order does not specify a plan, You will receive the Essential plan. The Access Success Plan datasheets are central customer success process documents and apply in the current version from time to time. We may change the services within a plan, but only with effect from the start of Your next Renewal Term. Additional licenses, sites or modules You purchase will sit at the same plan level and associated Fees as Your existing subscription.

6.6 Technical support covers issues arising from the Products as supplied and operated in accordance with the Documentation. It does not extend to: (a) data loss or corruption not caused by Our negligence or that of Our suppliers; (b) Products altered by anyone other than Us; (c) faults resulting from Your (and Your Permitted Users and Authorized Users’) failure to follow the Documentation or from operator error; or (d) faults attributable to Your equipment, to software which is not compatible with a Product, or equipment We have not approved in writing. If You engage an unapproved third-party consultant to configure a Product, We may charge for remediation work and may cease providing technical support. Technical support is provided through Our online service, subject to You enabling the required connections, and We will determine the most effective medium for delivering it.

6.7 We will supply each SaaS Product in accordance with the applicable service level agreement (SaaS SLA as set out in Appendix 2), unless the relevant Product Fact Sheet states otherwise. Where a Product or feature includes AI Features, the AI Terms apply. If You, a Permitted User or an Authorized User does not comply with the AI Terms, We may issue a written warning, suspend, or withdraw access to the feature, or terminate the Order for that feature.

6.8 Where your Order includes hardware supplied by us, that hardware is supplied as hardware-as-a-service unless your Order expressly states that you are purchasing it. Any hardware specific terms will be set out in Your Order.  

6.9 Third Party Products.

a)     Your signature on an Order that includes a Third Party Product is also Your acceptance of the applicable Third Party Terms.

b)     We will use reasonable endeavors to bring Third Party Terms to Your attention.

c)      Third Party Products are provided as is, have not been prepared to meet Your requirements, and it is Your responsibility to verify that they do.

d)     To the maximum extent permitted by law We make no representation, warranty or other promise as to the merchantability, fitness for purpose, availability or quality of any Third Party Product, no service level in the Agreement applies to it, and We have no obligation to provide technical support for it unless Your Order or the Third Party Terms expressly state otherwise.

e)     You will indemnify Us against all costs, claims, demands, expenses (including reasonable attorneys' fees) and liabilities incurred by or awarded against Us arising from any claim brought against Us by a third-party provider as a result of Your or a Permitted User's breach of the applicable Third Party Terms.

f)      If a third-party provider ceases to supply a Third Party Product procured through Us, other than as a result of Your or a Permitted User's breach, We will use reasonable endeavors to replace it with a suitable alternative at no additional cost, and if We notify You that We cannot, or 30 days pass after it ceased to be available, We will credit You with amounts paid in advance for services not received; this is Your sole and exclusive remedy for that event.

7.1 Each party will hold the other's Confidential Information in confidence, will not disclose it other than to employees, agents, Affiliates and subcontractors who need to know and who are bound by obligations at least as protective, and will not use it for any purpose other than the Agreement. This clause survives termination.

7.2 Information is not Confidential Information if (a) it is or becomes public other than through the receiving party's fault; (b) was lawfully known to the receiving party before disclosure; (c) is lawfully provided by a third party without restriction;  or (d) was independently developed as the receiving party can demonstrate in writing. Anonymized or aggregated data that We create from observing use of the Products and Services is not Your Confidential Information.

7.3 If a party is required by law, regulator or court to disclose Confidential Information it will give as much notice as it lawfully may, will disclose only what is required, and will take account of the other party's reasonable requests. Neither party is responsible for a third party's subsequent use of information disclosed in accordance with this clause.

7.4 Our processing of personal data on Your behalf is governed by the Data Processor Terms and includes the US Data Processing Addendum, which forms part of the Agreement.

7.5 Where a Product processes payment card data, We will maintain, for the components within Our responsibility, compliance with the applicable version of the Payment Card Industry Data Security Standard and will provide evidence of validation on reasonable written request not more than once in each Contract Year. You remain responsible for the security of cardholder data within Your own environment, for Your own compliance with that standard and with the operating regulations of the payment card networks, and for Your relationship with any third-party payment processor or gateway. Where a third party possesses, stores, processes or transmits cardholder data on Your behalf, that third party is solely responsible for its security and We do not warrant, indemnify or accept liability in respect of it.

7.6 Where You use a Product to send messaging, telemarketing, electronic communications or other outreach to third parties, You represent and warrant that You will comply with the Telephone Consumer Protection Act (47 U.S.C. s.227) and its implementing regulations, including by obtaining all required prior express written consent before initiating any automated call, pre-recorded message or text message, and by keeping records of that consent and making them available to Us on request. You will also comply with the CAN-SPAM Act (15 U.S.C. s.7701 et seq.) and all other applicable federal and state laws governing electronic marketing and communications.

7.7 You are responsible for providing Your own customers with terms of use and a privacy notice that comply with applicable law, for obtaining all consents required for the processing of their personal data through a Product, and for compliance with all laws applicable to Your promotions, loyalty programs, gift and stored value instruments and unclaimed property, and to the sale of age-restricted items.

7.8 You will indemnify Us against all costs, claims, demands, expenses (including reasonable attorneys' fees) and liabilities incurred by or awarded against Us arising from Your breach of clause 7.6 or 7.7.

8.1 We and Our licensors own all Intellectual Property Rights in the Products, the Services, any Third Party Products and the Documentation, including any Intellectual Property Rights developed or created during the performance of this Agreement. Nothing in the Agreement transfers any of those rights to You. If You acquire any such right, You will promptly assign it to Us, or hold it on trust for Us if assignment is not possible, and will execute any document We reasonably require.

8.2 You and Your licensors own all Intellectual Property Rights in Customer Content and Your data. You grant Us an irrevocable, non-transferable (other than to Our subprocessors and subcontractors), non-exclusive license to copy, modify and use Your data and Customer Content for the License Term, to the extent strictly necessary to provide the Products and Services, including as set out under the Data Processor Terms.

8.3 You warrant that You hold all rights necessary to submit the Customer Content, that it is complete and accurate, and that its display through a Product will not violate any law, including those governing advertising, alcohol licensing and gambling, injure any person, or infringe any third party's intellectual property, privacy or publicity rights. You will indemnify Us against any claim arising from breach of this warranty.

8.4 In the event that any third-party claims that Your permitted use of a Product, the Documentation or related materials that We supply infringes that third party's United States or Canadian patent, copyright or trademark, We will indemnify You against the direct costs, claims, expenses (including reasonable attorneys' fees incurred with Our prior written approval) and liabilities You incur, provided that You: (a) notify Us promptly; (b) do not admit liability or settle without Our written consent; (c) permit Us (or the relevant Third Party Product provider), at Our option, to defend and settle the negotiations and litigation at Our cost; and (d) provide reasonable assistance at Our expense.

8.5 If such a claim is made or threatened, or if We consider that a Product may infringe a third party's copyright or registered patent in effect during the License Term of the Agreement, We may at Our option: (a) procure a license permitting continued use; (b) modify or replace the Product without material adverse effect on functionality, or (c) terminate the affected part of the Agreement and refund the unused portion of prepaid Fees.

8.6 Clause 8.4 does not apply to any claim arising from (a) Your use of a Product other than as permitted; (b) Your failure to take reasonable corrective steps We have identified; (c) Your combination of a Product with Your own or any third party's items, data, applications or services where the claim would have been avoided but for that combination; (d) Your use of a superseded version where the claim would have been avoided by using the current version; (e) Your use of a Product provided free of charge or on a trial, pre-release, beta or evaluation basis; (f) Our use of Your Intellectual Property Rights under the license in clause 8.2; or (g) any modification to a Product made at Your direction or to Your specifications, to the extent the claim would have been avoided but for that modification. Clauses 8.4 to 8.6 state Our entire liability, and Your sole and exclusive remedy, in respect of any infringement of Intellectual Property Rights by a Product, the Services or the Documentation.

8.8 A Permitted User has the status of licensee only and has no direct contractual relationship with Us. You agree that all claims arising in connection with the Agreement will be brought by You, and You will indemnify Us against all costs, claims, demands, expenses, reasonable attorneys' fees and liabilities incurred by or awarded against Us as a result of any claim brought against Us by a Permitted User, unless that claim arises under a separate agreement that Permitted User has with Us in its own right.

 

9.1 We warrant that during the Warranty Period each Product will operate in all material respects in accordance with the Documentation when used in accordance with it, and that its functionality will not be materially reduced during the License Term. We will obtain and maintain the licenses and consents We require and will comply with the laws applicable to Us in respect of the Products.

9.2 The warranty in clause 9.1 is conditional on all Fees being paid when due and on Your use of current virus scanning software. It does not cover minor errors that do not materially affect functionality. Products are not tailored to Your specific requirements and it is Your responsibility to verify that a Product meets them.

9.3 EXCEPT AS EXPRESSLY SET OUT IN CLAUSE 9.1, THE PRODUCTS, THE SERVICES, ANY THIRD PARTY PRODUCT AND THE DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND WE MAKE NO OTHER REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, SYSTEM INTEGRATION AND NON-INFRINGEMENT, AND DO NOT WARRANT THAT ANY PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS. WE MAKE NO WARRANTY THAT THE PRODUCTS WILL SATISFY THE ACCESSIBILITY REQUIREMENTS OF ANY SPECIFIC END USER OR COMPLY WITH ANY PARTICULAR TECHNICAL ACCESSIBILITY STANDARD. THE DISCLAIMERS IN THIS CLAUSE 9 ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.

 

9.4 ANY PRODUCT OR FEATURE PROVIDED FREE OF CHARGE OR ON A TRIAL, PRE-RELEASE, BETA OR EVALUATION BASIS IS PROVIDED “AS IS” WITHOUT WARRANTY OR INDEMNITY OF ANY KIND, AND OUR TOTAL LIABILITY IN CONNECTION WITH IT WILL NOT EXCEED $100.

10.1 The exclusions and limitations in this clause 10 apply regardless of the theory of liability, whether in contract, tort (including negligence), strict liability, statute or otherwise; apply even if a party was advised of the possibility of the loss; and apply even if a limited remedy is found to have failed its essential purpose.

10.2 EXCEPT AS PROVIDED IN CLAUSE 10.5, EACH PARTY'S TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT IS LIMITED TO THE FEES YOU PAID US UNDER THE RELEVANT ORDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, LESS ANY SERVICE CREDITS ISSUED TO YOU UNDER THAT ORDER IN THAT PERIOD.

10.3 NEITHER PARTY IS LIABLE FOR MISREPRESENTATION OTHER THAN FRAUDULENT MISREPRESENTATION, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF USE, LOSS OR CORRUPTION OF DATA, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, FINES OR PENALTIES, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS, HOWEVER THE CLAIM IS FRAMED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY IS LIABLE TO THE OTHER FOR PUNITIVE, EXEMPLARY OR TREBLE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEPT WHERE A COURT OR ARBITRATOR AWARDS SUCH DAMAGES TO A THIRD PARTY AND THEY FALL WITHIN AN INDEMNITY GIVEN UNDER THE AGREEMENT.

10.5 Nothing in the Agreement limits or excludes: (a) liability for death or personal injury caused by negligence; (b) liability for fraud or willful misconduct; (c) any liability that cannot be limited or excluded by law; (d) the indemnities You give Us under clauses 5.4, 5.7, 6.9(e), 7.8, 8.3 and 8.8, and the indemnities We give You under clauses 8.4 and 8.7, together with any indemnity expressly stated to be uncapped in the Product Specific Terms; (e) Your obligation to pay all Fees, including any Accelerated Sum; or (f) Your liability for infringement of Our Intellectual Property Rights.

10.6 Clause 10.3 does not prevent Us from recovering direct loss of revenue caused by Your abandonment of, or deliberate default under, the Agreement.

10.7 You acknowledge that the allocation of risk in clauses 9 and 10 is a fundamental basis of the bargain between Us, that the Fees reflect that allocation, and that We would not supply the Products and Services at those Fees without it.

11.1 If a party materially breaches the Agreement and the breach is capable of remedy, the other party may serve notice requiring it to be remedied within 30 days. If it is not remedied within that period the non-defaulting party may terminate the Agreement, or the affected Order or severable elements of the Products, by serving a further notice, which takes effect on receipt unless the parties agree otherwise in writing. Where the same breach affects multiple Orders, the non-defaulting party may terminate all affected Orders by a single notice.

11.2 Either party may terminate the Agreement immediately if the other suffers an insolvency event that is not dismissed within 90 days, or commits a material breach that is not capable of remedy.

11.3 We may suspend or terminate an Order and, if applicable, the Agreement at any time if We reasonably believe that You, a Permitted User or an Authorized User has become a Sanctions Target, or if continuing to supply would cause Us to breach any legal or regulatory obligation. You will notify Us promptly if You become aware that any of them has become a Sanctions Target.

11.4 On termination or expiration of the Agreement or an Order, in whole or in part: (a) each party will promptly pay the other any amount already owed in relation to the terminated part, including the Accelerated Sum if applicable, except where payment is not permitted by law; (b) each party will, on request, delete or return the other's Confidential Information, retaining only what the law requires or what is not reasonably practicable to remove from electronic backup; (c) You, Your Permitted Users and Your Authorized Users will cease using the affected Products and Services and, on Our request, return or destroy all copies as soon as reasonably practicable and certify in writing that You have done so; (d) We will manage Your exit in accordance with any applicable exit policy or, in its absence, with applicable law and good industry practice, and will cease accessing Your equipment; and (e) We will act on Your instruction to return or delete personal data in accordance with the Data Processor Terms. The standard format for return of data is as per the relevant Product Fact Sheet.

11.5 Any provision that is expressed, or by its nature intended, to survive termination continues in force, including clauses 4, 5.4, 5.7, 6.8, 6.9(e), 7, 8, 9, 10, 11.4 and 12.

12.1 The Agreement is governed by the laws of the State of New York, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply. The Agreement is an agreement between merchants for the purposes of the Uniform Commercial Code as adopted in New York.

12.2 This clause 12 does not apply to unpaid, undisputed Fees, which are dealt with under clauses 4.5 and 4.6 as a material breach. Discussions to resolve a dispute are confidential and neither party may use them as evidence in any later proceeding unless both agree otherwise in writing.

12.3 For any dispute arising out of or relating to the Agreement, including its formation, performance, interpretation, breach or termination (a “Dispute”): (a) the individuals managing the relationship will seek in good faith to agree a resolution and, if they cannot do so within 30 days, each party will nominate a senior executive and those executives will meet, in person or by video conference, to seek in good faith to resolve it; and (b) if the senior executives cannot resolve the Dispute within a further 30 days, either party may begin binding arbitration under clause 12.4. If the parties agree in writing that a particular Dispute should instead be resolved in court, it will be resolved only in the state or federal courts sitting in New York, New York.

12.4 Any Dispute not resolved under clause 12.3 will be finally resolved by binding arbitration administered by JAMS under its Comprehensive Arbitration Rules and Procedures then in effect, before a single arbitrator, on the following basis: (a) the seat is New York, New York and the arbitration is conducted in English; (b) the arbitrator may award any remedy a court of competent jurisdiction could award, including injunctive relief and specific performance, but not punitive or exemplary damages except where a statute permits; (c) the award is final and binding and judgment on it may be entered in any court of competent jurisdiction; (d) each party bears its own costs and attorneys' fees, except that if the arbitrator determines that the claims or defenses of the non-prevailing party were frivolous or brought in bad faith the arbitrator may award reasonable attorneys' fees to the prevailing party; and (e) either party may apply to a court of competent jurisdiction for interim or injunctive relief before or during the arbitration without waiving this agreement to arbitrate.

12.5 All Disputes must be brought in the parties' individual capacity. Neither party may bring or join a Dispute as a plaintiff or class member in any class, collective, consolidated or representative proceeding, and the arbitrator may not preside over any such proceeding. If this clause 12.5 is held unenforceable for a particular Dispute, the remainder of clauses 12.3 and 12.4 will not apply to that Dispute and it will instead be resolved only in the state or federal courts sitting in New York, New York.

12.6 WHERE A DISPUTE IS RESOLVED IN COURT RATHER THAN BY ARBITRATION, EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY.

12.7 Either party may at any time seek injunctive or other equitable relief to enforce performance, prevent further damage, protect a legal right or remedy, or restrain the misuse of Confidential Information or Intellectual Property Rights, without posting bond, and nothing in this clause 12 restricts that right.

13.1 Any notice under the Agreement must be in writing and in English, must state that it is a notice under these terms, must be addressed for the attention of the appropriate person, and must be given by email to the address most recently notified for that purpose or by nationally recognized overnight courier, with written confirmation of delivery, to the registered office of the Access entity identified in Appendix 1. Notice of non-renewal under clause 3.1, and notice under clause 11.3, must be given through the account support process set out in those clauses, or as otherwise notified to You by Us from time to time.

13.2 These terms may be varied only in a writing signed by both parties, except that We may amend them unilaterally, effective immediately on notice to You, where necessary to comply with applicable law. A purchase order, side document or email exchange does not vary these terms.

13.3 Other than an obligation to pay amounts due, neither party is liable for any failure or delay in performance caused by an event beyond its reasonable control and not caused by its fault or negligence, including act of God, natural disaster, war, terrorism, civil unrest, governmental order, embargo, epidemic or pandemic, and failure of power or telecommunications, but excluding any strike or labor dispute involving that party's own employees. The affected party will give prompt notice and use reasonable efforts to overcome the cause. If the event continues for 45 days or more, the other party may terminate the Agreement by written notice given not later than 15 days after the 45th day.

13.4 The Agreement gives no rights or remedies to anyone other than the parties and their permitted successors and assigns, except as expressly provided in the Product Specific Terms in relation to a third-party provider. For the avoidance of doubt, Permitted Users are not third-party beneficiaries of this Agreement.

13.5 You may not assign, transfer, charge, hold on trust or otherwise deal with Your rights or obligations under the Agreement, whether by operation of law or otherwise, without Our prior written consent. We may assign or transfer the Agreement to an Affiliate, or to a successor in interest in connection with a merger, change of control or sale of all or substantially all of the business or assets to which it relates, on notice to You.

13.6 Each party will comply with all laws, statutes and regulations applicable to it in connection with the Agreement, including those governing privacy, anti-bribery, export control and economic sanctions.

13.7 We may refer to You as a customer and user of the Products in Our marketing and public relations materials only with Your prior written consent on each occasion.

13.8 A failure or delay in exercising a right or remedy does not waive that or any other right or remedy, and no course of dealing operates as a waiver. Remedies are cumulative and not exclusive. The parties are independent contractors, and nothing in the Agreement creates any agency, partnership, joint venture or employment relationship.

13.9 If any provision of the Agreement is held illegal, invalid or unenforceable, the remainder continues in force and that provision will be deemed modified to the minimum extent necessary to make it enforceable while achieving the parties' original economic and commercial intent as nearly as possible.

13.10 The Agreement is the entire agreement between the parties on its subject matter and supersedes all prior proposals, agreements and representations, whether oral, written or electronic. You acknowledge that You have not relied on any pre-contractual statement. We object to and reject any additional or different term proposed by You, including any contained in a purchase order, acceptance, supplier portal or website, and no such term has any force or effect.

13.11 The Agreement may be executed in counterparts, and delivery of an executed signature page by electronic means has the same effect as delivery of an original. Headings are for reference only, and the Agreement will not be construed against the party that drafted it.

 

 

Product	Access entity	Registration	Governing Law and Jurisdiction
Paytronix	Paytronix Systems, Inc.	Delaware, US	New York; JAMS, New York, NY
Qikserve (US or Canada)	Paytronix Systems, Inc.	Delaware, US	New York; JAMS, New York, NY
SHR (US or Canada)	Sceptre Hospitality Resources, LLC	Delaware, US	New York; JAMS, New York, NY

Where Your Order involves more than one Access entity there is a separate Agreement on these terms with each, and the law and seat set out above apply to that part of Your Agreement.

The following documents form part of the Agreement where applicable. Each applies in the current version from time to time. We will provide the current version, or any archived version, on written request.

Document	Applies to	Where published
AI Terms	Any Product with AI Features.	https://www.theaccessgroup.com/en-gb/legal-hub/ai-terms/
API Supplementary Terms	Any API access that You purchase from Us.	https://www.theaccessgroup.com/en-gb/legal-hub/api-supplementary-terms/
Data Processor Terms (including the US Data Processing Addendum)	Data processing for all Products.	https://www.theaccessgroup.com/en-gb/legal-hub/data-processor-terms/   https://www.theaccessgroup.com/en-gb/legal-hub/us-data-processing-addendum/
Product Fact Sheets	The applicable Product(s) set out in Your Order.	https://access-support.force.com/Support/s/gdpr-hub
SaaS SLA	All SaaS Products	http://www.theaccessgroup.com/media/30908/saas-sla-v3.pdf