CUSTOMER AGREEMENT
This Customer Agreement is entered into by and between Revel Systems,
Inc., a Delaware corporation with offices at 600 Peachtree Street, Suite
3800, Atlanta, Georgia 30308 and/or its affiliates and/or subsidiaries
("Revel"), and the entity agreeing to these terms ("Customer")
and is effective as of the date Customer electronically accepts the
Agreement (the "Effective Date"). Capitalized terms have the
meanings in Section 13 (Definitions) or elsewhere in this Agreement.
Revel offers through the Revel POS Platform integrated point of sale
solutions consisting of a subscription Service, Software, API/XML and
Hardware and offers certain related professional services, and Customer
desires to utilize the Revel POS Platform and acquire certain products
and services from Revel in accordance with the terms and conditions set
forth in this Agreement.
In consideration of the mutual promises and agreements contained herein,
the sufficiency of which are hereby acknowledged, the parties agree as
follows:
- Provision of the Service and Products.
- Order Forms. Customer orders to Revel for the Service,
Software, API/XML and Purchased Hardware, as applicable, will be
made pursuant to Order Forms submitted to Revel by Customer and
accepted by Revel by express written confirmation by Revel's
authorized representative. Each such properly submitted and
accepted Order Form will be incorporated into this Agreement and
will identify the Service, Software, API/XML and Purchased
Hardware to be provided by Revel. Notwithstanding any language
to the contrary therein, no terms or conditions stated in a
Customer purchase order or in any other Customer correspondence
or order documentation will be incorporated into or form any
part of this Agreement or any Order Form or SOW, and all such
terms or conditions will be null, unopposable and void.
- License Grant. Subject to the terms and conditions of this
Agreement, Revel hereby grants Customer a limited,
non-exclusive, non-transferable (except in connection with an
assignment of this Agreement pursuant to Section 12.7
(Assignment)), non-sublicensable right to access and use the
Service and Software (in object code form only), in each case
that have been validly ordered pursuant to an Order Form, solely
for the Business Purposes of Customer at Locations and during
the applicable Order Form Term. Revel shall make the Service and
Software available to Customer in accordance with the
Documentation. The API/XML will be licensed by Revel to Customer
if specified in the applicable Order Form. Customer's access to
and use of the API/XML are further subject to the API/XML Terms.
- License Restrictions. Customer shall not (a) modify, copy or
create any derivative or integrated works based on the Service,
Software or API/XML; (b) license, sublicense, sell, resell,
rent, lease, transfer, assign (in all or part -- this to include
granting access for a limited time only), distribute, time
share, offer in a service bureau, or otherwise make the Service,
Software or API/XML available to any third party, other than to
Authorized Parties as expressly permitted herein; (c) reverse
engineer or decompile any portion of the Service, Software or
API/XML, including but not limited to, any software utilized by
Revel in the provision of the Service; (d) access the Service,
Software or API/XML in order to build any commercially available
product or service; or (e) copy any features, functions,
integrations, pathways, architecture, interfaces or graphics of
the Service, Software or API/XML; or create internet links to
the Service or frame or mirror the Service on any other server
or wireless or internet-based device or in any other manner that
could become available from time to time during the applicable
Order Form Term.
- Support Services. Subject to the restrictions set forth
herein, Revel shall use commercially reasonable efforts to
provide to Customer the Support Services during the applicable
Order Form Term as more fully set forth in the Support Terms. To
the extent that Revel, at its sole discretion, develops and
makes Improvements (as defined herein) available during the
applicable Order Form Term, Revel shall also provide to Customer
access to any such Improvements, whereupon such Improvements
will be incorporated in the license to the Service and/or
Software and/or API/XML granted herein (as applicable). If an
Improvement to the Software is made available to Customer,
Customer shall update its Software in order for such Software to
operate and perform in a manner consistent with the
Documentation. Customer acknowledges that Revel shall only be
required to support the current version of the Software, plus
one prior current version (and as to the prior current version
only for a period of ninety (90) days), and as a result,
Customer's failure to update Software accordingly may prevent or
interfere with Customer's use of the Service, Software, API/XML,
and/or Hardware. Revel will not be responsible for providing any
form of Support Services if Customer fails or refuses to
incorporate any Improvements or if Customer is operating a
version of the Software other than the then current version or
the prior current version (and as to the prior current version
only during the foregoing ninety (90) day period). For the
avoidance of doubt, this Agreement does not entitle Customer to
New Products. Revel shall not be responsible or liable for any
loss of information, partial or not, use, interaction with a
third party's products, or alike, of the Software after an
Improvement.
- Hardware. All Hardware, with the exception of Apple, Inc.
iPads, must be purchased from Revel unless otherwise approved by
Revel in writing. Any iPad purchased by the Customer must be a
version that is currently supported by Apple (no "end of life"
iPads permitted). All Hardware is sold subject to the Hardware
Sale Terms and, if Customer is enrolled in the Revel Care
Program, the Revel Care Program Terms. If the Customer elects to
use its own network, the network must be mutually agreed upon in
writing by Customer and Revel in the applicable Order Form or
SOW. Revel will have no obligation to support any network
configuration that deviates from the mutually agreed upon
network configuration. Any Revel approved Third Party Hardware
shall meet the written specifications provided by Revel to
Customer for use with the Service, Software or API/XML. Customer
is responsible for all technical issues caused by any Third
Party Hardware, including networking problems and peripheral
incompatibilities caused by or arising out of Customer's use of
the Third Party Hardware.
- Service and Product Changes. Revel reserves the right to
discontinue, modify and/or replace any Service, Software,
API/XML or Hardware, subject to thirty (30) days' prior written
notice (electronic notice acceptable).
- Professional Services/Ownership.
- Statements of Work. The parties may agree that Revel will
perform pursuant to this Agreement certain Professional Services
for Customer associated with its use of the Software, Service,
API/XML or Hardware. In such event, the parties shall enter into
a Sales Agreement or statement of work in a form provided by
Revel ("SOW") setting forth the Professional Services to be
performed and deliverables to be provided ("Deliverables")
by Revel. The manner and means by which Revel chooses to
complete the Professional Services and prepare and provide
Deliverables are in Revel's sole discretion and control.
- Customer's Cooperation. Customer acknowledges that its
timely provision of accurate and complete information, access to
its personnel, materials, equipment and facilities (where
applicable), and its cooperation are essential to the
performance of Professional Services and provision of
Deliverables. Revel will not be liable for any deficiency or
delay in performing Professional Services or providing
Deliverables to the extent resulting from and in any manner
associated with Customer's failure to provide such information,
access and cooperation.
- Ownership of Work Product. Customer agrees that all Work
Product will be the property of Revel and hereby assigns and
agrees to assign all its rights in the Work Product and in all
related patents, patent applications, copyrights, mask work
rights, trademarks, trade secrets, rights of priority and other
proprietary rights to Revel, regardless of what local
legislation may allow the Customer to claim. Customer
acknowledges that Revel, in its sole discretion, will have the
right to license the Work Product or any portion thereof, or
incorporate the Work Product or any portion thereof into
products or services, for use by other licensees or customers of
Revel. At Revel's request and expense, Customer shall assist and
cooperate with Revel in all reasonable respects and shall
execute documents, give testimony and take further acts as
reasonably requested by Revel to acquire, transfer, maintain and
enforce patent, copyright, trademark, mask work, trade secret
and other legal protection for the Work Product.
- Deliverables License. Subject to Customer's performance of
its obligations under this Agreement, including timely payment
of fees and Expenses, Revel hereby grants Customer a limited,
non-exclusive, non-transferable (except in connection with an
assignment of this Agreement pursuant to Section 12.7
(Assignment)), non-sublicensable right to use the Deliverables
in connection with Customer's authorized use of the Revel POS
Platform pursuant to this Agreement. Notwithstanding anything to
the contrary in this Agreement, Customer shall not, without the
prior written consent of Revel: (a) decompile, disassemble or
otherwise reverse engineer the Deliverables or any portion
thereof; (b) rent, lease, sublicense, sell, transfer, disclose,
distribute or otherwise make available or grant rights in or to
the Deliverables, or any portion thereof, to any third party in
any form; or (c) use any Deliverables, or any portion thereof,
for the benefit of any third party.
- Customer Material. As between Revel and Customer, Customer
will retain all of its right, title and interest in and to
Customer Materials. Customer hereby grants Revel a limited,
non-exclusive, non-transferable (except in connection with an
assignment of this Agreement pursuant to Section 12.7
(Assignment)), non-sublicensable right to access and use (and to
allow its Affiliates, contractors and subcontractors to access
and use) Customer Materials in connection with the performance
of Professional Services and provision of Deliverables and
otherwise in connection with its performance under this
Agreement.
- Customer's Use of the Service and Products.
- Customer Obligations. Customer may enable access to the
Service, Software, API/XML and Hardware for use only by
Authorized Parties solely for the Business Purposes of Customer
at Locations in accordance with the Documentation; provided,
however, Customer may enable access to the consumer-facing
functionality and features of the Service, Software and Hardware
for use by Consumers. Customer is responsible for all Authorized
Party and Consumer use of the Service, Software, API/XML and
Hardware and compliance with this Agreement, as well as
restricting access by any individual who is no longer an
Authorized Party. Customer shall: (a) have sole responsibility
for the accuracy, quality, and legality of all Customer
Data; (b) grant User IDs to individuals named Authorized
Parties; (c) require that all Authorized Parties keep User ID
and password information strictly confidential and not share
such information with any third party; (d) prevent unauthorized
access to, or use of, the Service, Software, API/XML and
Hardware, and notify Revel promptly of any such unauthorized
access or use (including any unauthorized access or use caused
by misuse or misappropriation of User IDs or passwords); and (e)
comply with its obligations under all Laws applicable to
Customer's use of the Service, Software, API/XML and Hardware,
including all such Laws related to privacy, data security, and
data protection. Customer shall not: (i) use the Service,
Software, API/XML or Hardware in violation of applicable
Laws; (ii) in connection with the Service, Software, API/XML or
Hardware, send or store infringing, obscene, threatening, or
otherwise unlawful or tortious material, including material that
violates privacy rights; (iii) send or store Malicious Code in
connection with the Service, Software, API/XML or Hardware; (iv)
interfere with or disrupt performance of the Service, Software,
API/XML or the data contained therein; or (v) attempt to gain
access to the Service, Software, API/XML or Hardware or their
related systems or networks in a manner not set forth in the
Documentation. Customer shall designate a maximum number of
Authorized Parties as listed in the applicable Order Form or SOW
to request and receive Support Services from Revel. Such
Authorized Parties must be trained on the Revel product(s) for
which they initiate support requests. Customer shall be liable
for the acts and omissions of all Authorized Parties and
Consumers relating to this Agreement.
- Dedicated Use. The Service and Software are intended to
operate together with the Hardware to provide a comprehensive
point of sale solution. Customer agrees to use the Hardware
solely in connection with the Service and Software in accordance
with the Documentation, and shall not attempt to reconfigure or
use the Hardware for any other purposes (for example, Customer
shall ensure that its employees do not install apps on the Revel
iPads, do not use Revel iPads to browse the internet, and do not
attempt to reconfigure point of sale peripherals to perform
other functions or connect to other devices).
- Restrictions. Customer shall not, without Revel's prior
written consent, use, duplicate, or disclose any data or
information relating to the Service, Software, API/XML or
Hardware that is made available by Revel in connection with this
Agreement, including any information related to the features,
functionality, performance, pricing, application, or
construction of any portion of the Revel POS Platform. Customer
shall not use the Service, Software, API/XML or Hardware for
benchmarking or testing performance, or for enhancing any
products or services that relate to point of sale, payment
processing, or commerce data. Customer shall only use the
Service, Software, API/XML and Hardware for Customer's Business
Purposes at the Locations, and for no other purpose and at no
other location; provided that, following the expiration or
termination of this Agreement, Customer shall be permitted to
retain and use without restriction the Third Party Hardware and
any Purchased Hardware for which Customer has made full payment,
provided that Customer must cease using the Third Party Hardware
and Purchased Hardware as part of the Revel POS Platform and
disable access to and/or de-install the Software, API/XMLs and
Service.
- POS Transactions. The Revel POS Platform is designed to give
Customer flexibility in configuring its point of sale systems.
Consequently, it is critical that Customer understands how to
configure and use Customer's POS Terminals and Back End portal,
and that Customer ensures that transactions are properly
processed and credited to Customer's bank, loyalty and other
relevant accounts. Customer acknowledges that it is Customer's
obligation to seek assistance from Revel representatives and
Customer's other vendors if Customer has any questions about the
processing and crediting of Customer's point of sale
transactions or if Customer needs assistance with the
configuration and operation of the Revel POS Platform or third
party products, software and services, and Revel will have no
liability as a result of Customer's failure to do so. Customer
further acknowledges that it is Customer's obligation to ensure
on an ongoing basis that payments, loyalty transactions and any
other transactions running through the Revel POS Platform are
processed properly, and that the respective currency, credit,
loyalty points, or other applicable transaction proceeds are
accurately deposited in Customer's relevant accounts, and Revel
will have no liability as a result of Customer's failure to do
so. In that regard, Customer will perform a minimum of three (3)
test transactions (e.g. $0.01 transactions) before going live
(e.g. into production) to ensure that transactions processed on
the Revel POS Platform are properly credited to Customer's
account (the "Test Transactions"). Customer shall retain
documentation of all Test Transactions during the Term of this
Agreement and for one (1) year thereafter and will provide such
documentation to Revel upon request. Further, Customer agrees
that, on at least a daily basis (and more often if reasonably
prudent under the circumstances) , Customer shall check,
validate and ensure that (a) all proceeds from Customer's point
of sale transactions were deposited in Customer's accounts
timely and in full (net of any charges that Customer has agreed
to pay to payment processors); (b) data relating to loyalty,
incentive or other similar programs was processed properly;
and (c) point of sale transactions are batched daily to fully
reconcile payment details with Customer's payment processing
vendors, payment gateway and financial institutions. Customer
assumes the responsibility to train and instruct the Authorized
Parties regarding all of the foregoing Customer obligations and
Revel will have no liability as a result of Customer's failure
to do so.
- Usage Limitations. Customer acknowledges and agrees that
Customer's access to and use of the Service may be limited or
capped as set forth in the applicable Order Form or SOW.
- Internet Access. Customer acknowledges that access to and
use of the full functionality of the Revel POS Platform requires
a high speed internet connection and that Customer is
responsible for procuring and maintaining the network
connections that connect the Hardware and Software to the
Service. If Customer uses any internet wireless router or other
network access technology or network-enabled devices provided by
Revel, Customer agrees that Revel will have the right (although
not the obligation) to encrypt and filter internet traffic for
data security purposes and to otherwise manage or modify
internet data transmissions.
- Fees.
- Invoices and Payment. Fees for the Service, Software,
API/XML, Hardware and Professional Services will be invoiced in
accordance with the relevant Order Form or SOW. Customer shall
also reimburse Revel for all reasonable travel, lodging,
communications, shipping charges and out-of-pocket expenses
incurred by Revel in connection with providing the Service,
Software, API/XML, Hardware and Professional Services
("Expenses"). Except as otherwise stated in an Order Form or
SOW, all fees are quoted and payable in United States dollars.
Customer shall provide Revel with complete and accurate billing
and contact information including a valid email address for
receipt of invoices. Upon Revel's request, Customer shall make
payments to Revel via wire transfer.
- Non-cancelable and Non-refundable. Except as specifically
set forth herein or in the applicable Order Form or SOW, all
payment obligations under any and all Order Forms or SOWs are
non-cancelable and all payments made are non-refundable.
Subscriptions and other purchases on Order Forms may not be
decreased during the applicable Order Form Term or SOW Term.
- Overdue Payments. Any payment not received from Customer by
the due date shall accrue late charges at the rate of 1.5% of
the outstanding balance per month, or the maximum rate permitted
by Law, whichever is lower, from the date such payment was due
until the date paid. Customer shall further be responsible for
all costs and expenses incurred by Revel or Revel's agents or
assignees (including collection expenses and attorney fees) in
connection with the collection of payments not made by Customer
on time or any other amounts overdue from Customer.
- Price Increases. Revel shall have the right to increase fees
for the Service, Software, API/XML, Hardware and Professional
Services at any time during the Term of this Agreement upon
thirty (30) days advance written notice.
- Non-Payment. If Customer's account is past due, in addition
to any other rights or remedies it may have under this Agreement
(including the right to suspend the Service pursuant to Section
11.5 (Suspension of Service)) or by Law, Revel reserves the
right to disable the Software and API/XML, repossess any
Purchased Hardware for which Customer has not made full payment
and immediately cease performing Professional Services, without
liability to Customer, until such amounts are paid in full.
Customer shall remain liable for any fees and other amounts
payable under this Agreement during any period of suspension.
- Taxes. Except as otherwise stated in an Order Form or SOW,
Revel's fees do not include any direct or indirect local, state,
federal or foreign taxes, levies, duties or similar governmental
assessments of any nature, including value-added, goods and
services, excise, use or withholding taxes (collectively,
"Taxes"). Customer is responsible for paying all Taxes
associated with licenses and acquisitions, including with
respect to the Service, Software, API/XML, Hardware and
Professional Services, under this Agreement, excluding U.S.
income taxes on Revel. If Customer has an obligation to withhold
any amounts under any Law or tax regime (other than U.S. income
tax law), Customer shall gross up the payments so that Revel
receives the amount actually quoted and invoiced. If Revel has a
legal obligation to pay or collect Taxes for which Customer is
responsible under this section, the appropriate amount will be
invoiced to and paid by Customer, unless Customer provides Revel
with a valid tax exemption certificate authorized by the
appropriate taxing authority.
- Proprietary Rights; Customer Data.
- Ownership and Reservation of Rights to Revel Intellectual
Property. As between Revel and Customer, Revel, its Affiliates
or its licensors own all right, title and interest in and to the
Revel POS Platform, Service, Software, API/XML, Work Product,
and all related technology and Intellectual Property Rights.
Subject to the limited rights expressly granted hereunder, Revel
reserves all rights, title and interest in and to the Revel POS
Platform, Service, Software, API/XML and Work Product, including
all related technology and Intellectual Property Rights. No
rights are granted to Customer hereunder other than as expressly
set forth in this Agreement.
- Customer Feedback. Customer and Authorized Parties may elect
to provide Revel with suggestions, enhancement requests,
recommendations and other feedback concerning the Service,
Software, API/XML, Hardware, Support Services or Professional
Services (the "Customer Feedback"). Customer hereby assigns
and agrees to assign all Customer Feedback to Revel without lien
or encumbrance and agrees that Customer Feedback will be the
sole property of Revel and that Revel may use Customer Feedback
in its discretion without obligation to Customer. Revel has no
obligation to make Customer Feedback an Improvement.
- Ownership of Customer Data. As between Revel and Customer,
Customer owns the Customer Data. Revel will have, and Customer
hereby grants and agrees to grant to Revel, a royalty-free,
worldwide, transferable, sub-licensable, irrevocable, perpetual
license to use the Customer Data to configure and/or provide the
Service, Software, API/XML, Support Services and Professional
Services to Customer, or to prevent or address service or
technical problems, in accordance with this Agreement, the
applicable Order Form or SOW and the Documentation, or otherwise
in accordance with Customer's instructions.
- Permitted Use of Customer Data. Notwithstanding the other
provisions of this Agreement, Revel shall also have a
non-exclusive, fully paid, royalty-free, transferable,
perpetual, irrevocable worldwide, right and license to use,
access, make, have made, use, copy, distribute, maintain,
modify, enhance, create derivative works of, aggregate, and
re-purpose Customer Data for the purposes (including commercial
purposes) of analyzing activity, modeling, industry
benchmarking, marketing, developing industry expertise and
making product/service improvements. In any such use of
Customer's Data, Revel will ensure that only aggregate
information is utilized, and in all cases all Customer Data will
be anonymized.
- Customer Data and Customer Materials Storage. Revel will
store Customer Data and Customer Materials at no charge for a
period of twelve (12) months from the execution date of
Customer's Initial Order Form Term for monthly Software
subscription services. Thereafter, the Customer will be billed
at Revel's then current rate for Customer Data and Customer
Materials storage unless Customer provides Revel with at least
thirty (30) days advance written notice that it no longer wants
Revel to maintain its Customer Data or Customer Materials
storage database.
- Usage Data. Revel may collect certain information in
connection with Customer's access to or use of the Service, such
as access records, date and time stamps, transaction and
activity records, and system performance data ("Usage
Data"). Revel may use Usage Data to, among other things,
deliver and manage its products and services, perform
maintenance and support, and develop, test, and improve the
Service and other Revel products and services, and generate
statistical data about usage of its products and services. As
between Revel and Customer, Revel owns the Usage Data.
- Data Processing Addendum. Terms applicable to Personal Data
are set forth in the Data Processing Addendum (as defined
below).
- Revel Privacy Policy. Customer agrees to comply with the
Personal Data Protection Act 2012 (Singapore Customers only),
the Privacy Act 1988 (Cth) (Australian Customers only), and
the Revel Privacy Policy, as may be updated or amended from time
to time, located at https://revelsystems.com/privacy/.
- Third Party Payment Processors.
- Payment Processing. The Revel POS Platform is designed to
integrate with third party payment processors. Unless otherwise
agreed by the parties in the applicable Order Form (and further
subject to such terms, conditions and fees as Revel may
require), Customer shall utilize a payment gateway provider and
a payment processing services provider designated by Revel
(Revel may bill and collect fees for such services, but Revel in
no way provides payment processing or gateway services). To the
extent Customer is required to enter into a separate agreement
with any such third party payment gateway or payment processing
services provider, or is required to agree to such third party
payment gateway or payment processing services provider's terms
and conditions as set forth in an Agreement with Revel, Customer
hereby agrees to do so. If Customer requires Revel's assistance
with the payment gateway or processor, the parties may agree
upon applicable Professional Services under a SOW. If Customer
is utilizing an integrated payments solution through Revel, then
Customer is hereby agreeing to the applicable integrated payment
solutions' terms and conditions found at
www.revelsystems.com/payment-terms,
as may be updated from time to time.
- Always-On Mode. The Revel POS Platform may be configured to
operate in an offline mode, so that Customer's point of sale
terminals may continue to process credit cards, loyalty cards
and other remote server-based transactions even if the
connection to the internet or to the payment processor is
temporarily discontinued ("Offline Transactions"). While in
offline mode, Offline Transactions are processed locally,
without receiving a final confirmation from a remote server that
the respective transactions were in fact completed.
Consequently, with Offline Transactions Customer assumes the
risk and will be solely responsible if credit card transactions
processed offline are not approved if the credit cards are
declined by a payment processor or financial institution when
the connection with the remote servers is reestablished.
Customer agrees to verify that the Revel POS Platform is
properly configured to process credit cards and other
transactions that require remote server responses, including by
verifying at least once a day (and more often if reasonably
prudent under the circumstances) that Customer's account is
properly credited for the full amounts of the purchase
transaction conducted using the Revel POS Platform. Customer
hereby assumes all liability and responsibility for training and
instructing Authorized Parties to verify multiple times each day
that the Revel POS Platform is not operating inadvertently in an
offline mode, that the connection to the payment processor is
and remains properly configured, and that any Offline
Transactions are accurately processed when the connection to the
remote servers is reestablished.
- Confidentiality.
- Confidentiality. A party shall not disclose or use any
Confidential Information of the other party except as reasonably
necessary to perform its obligations or exercise its rights
pursuant to this Agreement except with the other party's prior
written permission.
If the Customer is a Franchisor (or any other corporate entity) that
plans to request access to view all Services, Software, API/XML,
Hardware, any component of the Revel POS Platform ordered by Franchisees
(or any other related corporate entity) or Franchisees' (or any other
related corporate entities') Customer Data or Customer Materials then
Franchisor (or such other corporate entity) is hereby representing that
it has the legal right to obtain such access. If the Customer is a
Franchisee (or a corporate entity whose information is legally subject
to the review of Franchisor or another related corporate entity) then it
is hereby agreeing that Franchisor (or any other such related corporate
entity) may have access to all Services, Software, API/XML, Hardware,
any component of the Revel POS Platform ordered by it or its Customer
Data or Customer Materials, as well as any other data contained in the
Revel POS Platform through the Revel POS Platform. - Protection. Each party agrees to protect the Confidential
Information of the other party in the same manner that it protects
its own Confidential Information of like kind, but in no event using
less than a reasonable standard of care.
- Compelled Disclosure. A disclosure by one party of Confidential
Information of the other party to the extent required by Law will
not be considered a breach of this Agreement, provided the party so
compelled promptly provides the other party with prior notice of
such compelled disclosure (to the extent legally permitted) and
provides reasonable assistance, at the other party's cost, if the
other party wishes to contest the disclosure.
- Remedies. If a party discloses or uses (or threatens to disclose
or use) any Confidential Information of the other party in breach of
confidentiality protections hereunder, the other party will have the
right, in addition to any other remedies available, to seek
injunctive relief to enjoin such acts without the necessity of
posting a bond, it being acknowledged by the parties that any other
available remedies are inadequate.
- Exclusions. Confidential Information will not include any
information that: (a) is or becomes generally known to the public
without breach of any obligation owed to the other party; (b) was
known to a party prior to its disclosure by the other party without
breach of any obligation owed to the other party, as evidenced by
contemporaneous written records; (c) was independently developed by
a party without breach of any obligation owed to the other party, as
evidenced by contemporaneous written records; or (d) is received
from a third party without breach of any obligation owed to the
other party.
- Warranties and Disclaimers.
- Mutual Warranties. Each party warrants to the other party
that it is a corporation or other legal entity duly organized,
validly existing and in good standing in the jurisdiction of its
formation, and that it has all necessary corporate or similar
power and authority to execute and deliver this Agreement.
- Service, Software, API/XML, Revel POS Platform Warranty.
Revel warrants to Customer, for Customer's benefit only, that
during the applicable Order Form Term the Service, Software,
API/XML and Revel POS Platform will perform substantially in
accordance with the then-current and applicable Documentation.
- Professional Services Warranty. Revel warrants to Customer,
for Customer's benefit only, that Revel will perform
Professional Services in a professional and workmanlike manner.
- Warranty Remedies. As Customer's exclusive remedy and
Revel's sole liability for breach of the warranty in Sections
8.2 and 8.3), Revel shall use commercially reasonable efforts to
correct reported material non-conformities. To receive warranty
remedies, Customer must report the non-conformity in writing to
Revel within thirty (30) days after Customer first identifies
the non-conformity or, in the case of Professional Services,
within thirty (30) days after the non-conforming Professional
Services are performed.
- Australian Consumer Law (Australian Customers only). If Revel is
liable to Customer in relation to a failure to comply with a
guarantee that applies under the Australian Consumer Law that
cannot be excluded, Revel's total liability to Customer for
that failure is limited to, at Revel's option:
(a) in the case of services, the resupply of the services or the
payment of the cost of resupply; and
(b) in the case of goods, the replacement of the goods, the supply of
equivalent goods or the repair of the goods, or the payment of the cost
of replacing the goods, acquiring equivalent goods or of having the
goods repaired. - DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2
(SERVICE, SOFTWARE, API/XML, REVEL POS PLATFORM WARRANTY) AND
SECTION 8.3 (PROFESSIONAL SERVICES WARRANTY) AND TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, THE REVEL POS PLATFORM, SERVICE,
SOFTWARE, API/XML, SUPPORT SERVICES AND PROFESSIONAL SERVICES ARE
PROVIDED "AS IS" AND REVEL, ITS AFFILIATES AND LICENSORS MAKE NO
WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, AND DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED
OR EXPRESS WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT OR ARISING OUT OF COURSE OF DEALING OR USAGE OF
TRADE. REVEL DOES NOT REPRESENT OR WARRANT THAT THE REVEL POS
PLATFORM, SERVICE, SOFTWARE OR API/XML WILL BE ERROR FREE,
UNINTERRUPTED OR FREE OF HARMFUL COMPONENTS OR THAT CUSTOMER DATA OR
CUSTOMER MATERIALS, WILL BE SECURE OR NOT LOST OR DAMAGED. REVEL
SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR
OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC
COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE ITS REASONABLE CONTROL,
INCLUDING ANY HARM OR DAMAGES CAUSED BY THIRD-PARTY HOSTING
PROVIDERS. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND
EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THIS
AGREEMENT. REVEL MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER
ON BEHALF OF ANY THIRD PARTY PROVIDER.
- Indemnification.
- Indemnification by Customer. Customer shall indemnify and
hold harmless, and at Revel's request defend, Revel and its
Affiliates, successors and assigns (and its and their officers,
directors, employees, sublicensees, customers and agents) from
and against any and all claims, losses, liabilities, damages,
settlements, expenses and costs (including, without limitation,
attorneys' fees and court costs) which arise out of or relate
to: (a) any breach (or claim or threat thereof that, if true,
would be a breach) of this Agreement by Customer; (b) Customer
Data or Customer Materials, including any third party claim
alleging that Customer Data or Customer Materials infringe or
misappropriate the rights of a third party or violate any Law;
and (c) any violation of Law by Customer.
- Procedures. Revel shall give Customer prompt notice of any
claim to which Customer's indemnification obligation applies;
provided, however, that the failure to give such notice shall
not relieve Customer of its obligations under Section 9.1
(Indemnification by Customer) except to the extent that Customer
was actually and materially prejudiced by such failure. Revel
may, at its option and expense, participate and appear on an
equal footing with Customer in the defense of any
indemnification claim that is conducted by Customer as set forth
herein. Customer may not settle any claim without the prior
written approval of Revel.
- Limitation of Liability.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, IN NO EVENT WILL REVEL'S (OR REVEL'S THIRD PARTY
LICENSORS' OR SUBCONTRACTORS') TOTAL AND AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN
CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF FEES
PAID BY CUSTOMER DURING THE IMMEDIATELY PRECEDING TWELVE (12)
MONTH PERIOD FOR THE SERVICE, SOFTWARE, HARDWARE, API/XML, REVEL
POS PLATFORM OR PROFESSIONAL SERVICES FROM WHICH THE CLAIM
AROSE. THE FOREGOING LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS
FOR CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION
OF THE LIMIT, AND THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT
ENLARGE THAT LIMIT. THE CUSTOMER EXPRESSLY AGREES AND ACCEPTS TO
WAIVE ANY ADDITIONAL RIGHT TO CLAIM AMOUNTS IN EXCESS OF THE
ABOVE.
- Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, IN NO EVENT WILL REVEL (OR REVEL'S THIRD PARTY LICENSORS OR
SUBCONTRACTORS) HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED,
OR FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF DATA
RECONSTRUCTION OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF
OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE
USE OR INABILITY TO USE THE SERVICE, SOFTWARE, HARDWARE,
API/XML, REVEL POS PLATFORM OR PROFESSIONAL SERVICES, ANY
INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF REVEL OR
REVEL'S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED
OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
- Term, Termination and Suspension.
- Term of Agreement and Order Form. The term of this Agreement
(the "Term") commences on the Effective Date and continues
until terminated in accordance with the terms set forth herein.
The Order Form Term (as defined herein) is set forth in the
applicable Order Form. Unless otherwise specifically set forth
in the Order Form, Revel's standard Order Form term is
thirty-six months from the date upon which Revel first bills
Customer for monthly Software and/or Revel POS Platform
subscription services (and if Customer is not ordering any such
subscription services, then from the date on which Revel first
otherwise bills Customer) (the "Standard" or "Initial
Order Form Term"). Thereafter, the Initial Order Form Term
will automatically renew for one year every year until such time
as a party gives thirty days prior written notice of termination
of the applicable Order Form (each an "Order Form Renewal
Term" and together with the Initial Order Form Term the
"Order Form Term"). Provided, however, that in no event
will any Order Form Term for Revel Guard XT™ or Delivery XT™
exceed the time period during which Revel has the legal right to
continue offering Revel Guard XT or Delivery XT and Customer
understands and agrees that Revel has the right to terminate
Customer's access to Revel Guard XT or Delivery XT upon the
expiration and/or termination of such right. Customer is hereby
agreeing that each Customer location for which it signs an Order
Form under this Agreement will not utilize any point of sale
system other than the Revel POS Platform (including for the
avoidance of doubt the Revel Software) at such location for the
entire duration of the applicable Order Form Term.
The term of any SOW (the "SOW Term") shall be as set forth
in the applicable SOW. - Termination. A party may terminate this Agreement or the
applicable Order Form or SOW (a) upon thirty days prior written
notice to the other party of a material breach of this Agreement
by the other party if such breach remains uncured at the
expiration of such notice period; or (b) immediately in the
event the other party becomes the subject of a petition in
bankruptcy or any other proceeding relating to insolvency,
receivership, liquidation or assignment for the benefit of
creditors. In the event the Agreement is terminated, all Order
Forms and SOWs are simultaneously terminated. A termination of
one Order Form of SOW will not constitute termination of any
other Order Forms or SOWs or this Agreement.
- Effect of Termination. Upon any termination of this
Agreement, Customer shall, as of the date of termination,
immediately cease accessing and utilizing the Service, Software,
Revel POS Platform, the API/XML (except as permitted under
Section 11.4 (Retrieval of Customer Data)), and Revel
Confidential Information. Customer will return all Revel
Confidential Information, including but not limited to, any
Documentation, and any Purchased Hardware the Customer has not
fully paid for as of the date of termination, at Customer's
expense, within fifteen days of termination.
Termination for any reason will not relieve Customer of the
obligation to pay any fees accrued or due and payable prior to
the effective date of termination. In addition to the foregoing,
upon early termination by Customer or termination by Revel for
other material breach, Customer shall also pay the greater of
the sum of either: i) six (6) months of monthly recurring
revenue; or ii) the total amount of monthly recurring revenue
which would have been paid to Revel had Customer fulfilled its
financial obligations under the then current Order Form Term.
The Customer and Revel acknowledge and agree that the sums
payable under the foregoing sentence shall constitute liquidated
damages and not penalties and are in addition to all other
rights of Revel.
Those provisions that by their express terms survive or which by
their nature should survive, will survive the expiration or any
termination of this Agreement. Termination of this Agreement by
either party will not act as a waiver of any breach of this
Agreement and will not act as a release of either party from any
liability for breach of such party's obligations under this
Agreement. Neither party will be liable to the other party for
damages of any kind solely as a result of terminating this
Agreement in accordance with its terms, and termination of this
Agreement by a party will be without prejudice to any other
right or remedy of such party under this Agreement or applicable
Law. - Retrieval of Customer Data. Upon written request by Customer
made within thirty days after any expiration or termination of
this Agreement and/or Location Order Form, Revel shall make
Customer Data available to Customer through the Service in
Revel's standard format on a limited basis solely for purposes
of Customer retrieving Customer Data during such thirty-day
period for a fee of five hundred ninety-nine dollars ($599) or
the Customer's monthly recurring revenue, whichever is greater.
If Customer desires Customer Data to be provided in a format
other than Revel's standard format, the parties may agree that
Revel will assist in providing the requested format pursuant to
a SOW in exchange for additional fees for such assistance. After
such thirty-day period, Revel shall have no obligation to
maintain or provide any Customer Data and may thereafter, unless
legally prohibited, delete all Customer Data.
If Customer requests retrieval of Customer Data after the
expiration of the time period set forth in this Section 11.4,
then, if Revel, in its discretion has maintained the Customer
Data, Revel may agree to provide the Customer Data to Customer
in Revel's standard format pursuant to a Sales Agreement or SOW
for a fee. The Customer understands and agrees that the fee may
vary based on time elapsed since termination of this Agreement.
Further, if Customer desires Customer Data to be provided in a
format other than Revel's standard format, the parties may agree
that Revel will assist in providing the requested format
pursuant to a Sales Agreement or SOW in exchange for fees for
such assistance. - Suspension of Service. In addition to any other rights or
remedies it may have under this Agreement or by Law, Revel may
immediately suspend provision of the Service without liability
to Customer: (a) if Customer's account is past due until paid in
full; (b) if Customer breaches Section 2.5 (Deliverables
License), Section 3.1 (Customer Obligations) or Section 3.3
(Restrictions); (c) to avoid harm or liability to Revel or its
other customers, including in the case of denial of service
attacks or other disruptions; or (d) if required by Law or
requested by a governmental authority. Customer shall remain
liable for any fees and other amounts payable under this
Agreement during any period of suspension.
- General Provisions.
- Relationship of the Parties. The parties are independent
contractors. This Agreement does not create nor is it intended
to create a partnership, franchise, joint venture, agency,
fiduciary or employment relationship between the parties. The
relationship of the parties described in this Agreement is
non-exclusive. There are no third party beneficiaries to this
Agreement. Further, A person or entity who is not a party to
this Agreement shall have no right under the Contracts (Rights
of Third Parties) Act 2001 of Singapore to enforce any term of
this Agreement, except that (i) Section 9.1 (Indemnification by
Revel) is intended to benefit Customer, its Affiliates, and
their respective employees, officers and directors, and (ii)
Section 9.2 (Indemnification by Customer) and paragraph 1.4 of
Exhibit A (API/XML Terms) are intended to benefit Revel, its
Affiliates, and their respective employees, officers and
directors, and each such Section shall be enforceable by any of
them to the fullest extent permitted by Law, subject to the
other terms and conditions of this Agreement. Notwithstanding
the foregoing, the parties may amend or vary this Agreement in
accordance with its terms without the consent of any other
person.
- Non-solicitation. During the Term of this Agreement and for
a period of twelve months after termination or expiration of
this Agreement or any Order Form or SOW, Customer shall not
directly or indirectly solicit as an employee or independent
contractor any employee working for Revel. The parties
acknowledge this provision does not apply to responding to
unsolicited applications, or responding to unprompted responses
to general advertisements, or independently (without direction
or advice) presented by an independent recruiting firm.
- Subcontracting. Revel may draw on the resources of (and
subcontract to) its Affiliates and third party contractors and
subcontractors, within or outside of the United States (each, a
"Revel Vendor") for internal, administrative and compliance
purposes or in connection with the hosting or provision of the
Service and other products and services to be provided by Revel
pursuant to this Agreement. Customer agrees that Revel may
provide information, data and materials that Revel receives in
connection with this Agreement (including Customer Data) to the
Revel Vendors for such purposes.
- Publicity. Customer agrees that Revel may use Customer's
name and logo in lists of customers, on promotional and
marketing materials and on its website. Revel agrees that,
subject to Revel's written consent in each instance, Customer
may use Revel's name and logo to identify Revel as Customer's
point of sale solution provider on promotional and marketing
materials and on its website.
- Notices. Except as otherwise set forth herein, all notices
required under this Agreement will be in writing and will be
deemed to have been given upon: (a) personal delivery; (b) the
third business day after mailing by registered post; or (c) the
second business day after sending by facsimile with telephonic
confirmation of receipt. Notices to Revel will be addressed to
the attention of the Office of the General Counsel to the
address in the introductory paragraph of this Agreement. Notices
to Customer will be addressed to the address in the applicable
Order Form. Each party may modify its recipient and address of
notices by providing notice pursuant to this Agreement.
- Waiver and Cumulative Remedies. No failure or delay by
either party in exercising any right under this Agreement will
constitute a waiver of that right or any other right. Other than
as expressly stated herein, the remedies provided herein are in
addition to, and not exclusive of, any other remedies of a party
at Law or in equity.
- Force Majeure. Neither party will be liable for any failure
or delay in performance under this Agreement (other than for
delay in the payment of money due and payable hereunder) for
causes beyond that party's reasonable control, including, but
not limited to, acts of God, acts of government, flood, fire,
civil unrest, acts of terror, strikes or other labor problems,
computer attacks or malicious acts, such as attacks on or
through the internet, any internet service provider,
telecommunications or hosting facility. Dates by which
performance obligations are scheduled to be met will be extended
for a period of time equal to the time lost due to any delay so
caused. For the avoidance of doubt, COVID-19 related matters may
not be declared as a Force Majeure event under this Agreement.
- Assignment. Revel may assign, sell, transfer, delegate or
otherwise dispose of, whether voluntarily or involuntarily, by
operation of Law or otherwise, this Agreement and any of its
rights or obligations of this Agreement, but Customer shall not
and shall not have the right to assign, sell, transfer, delegate
or otherwise dispose of, whether voluntarily or involuntarily,
by operation of Law or otherwise, this Agreement or any of its
rights or obligations under this Agreement without the prior
written consent of Revel. Any attempt by Customer to assign,
sell, transfer, delegate or otherwise dispose of, whether
voluntarily or involuntarily, by operation of Law or otherwise,
this Agreement or any of its rights or obligations under this
Agreement without the prior written consent of Revel will be
void and of no effect. Subject to the foregoing, this Agreement
will bind and inure to the benefit of the parties, their
respective successors and permitted assigns.
- Governing Law; Waiver of Jury Trial. This Agreement will be
governed exclusively by the internal laws of the State of
Georgia, USA, without regard to its conflicts of laws rules.
Each party hereby waives any right to jury trial in connection
with any action or litigation in any way arising out of or
related to this Agreement and irrevocably consents to the
exclusive personal jurisdiction and venue of any state or
federal court located in Atlanta, GA, USA. The United Nations
Convention on Contracts for the International Sale of Goods will
not apply to this Agreement. The Customer hereby irrevocably
confirms that it has sought independent legal advice on the
applicable law of this Agreement and that this has been a
considered element when agreeing terms. As such, the Customer
fully understands the consequences and costs that may be
associated with this Agreement being governed by Georgia, USA,
law. The Customer understands and agrees to the consequences of
this choice of law and the exclusive venue provisions set forth
herein and expressly renounces, abstains and refrains from
invoking any local law dispositions to the contrary. Customer
hereby consents to service of process of any action filed under
this Section via email.
- Export. Customer shall comply with the export laws and
regulations of the United States and other applicable
jurisdictions in using the Service, Software, API/XML, Hardware,
Revel POS Platform and Deliverables. Without limiting the
generality of the foregoing, Customer shall not make the
Service, Software, API/XML, Revel POS Platform, Hardware or any
Deliverable available to any person or entity that: (a) is
located in a country that is subject to a U.S. government
embargo; (b) is listed on any U.S. government list of prohibited
or restricted parties; or (c) is engaged in activities directly
or indirectly related to the proliferation of weapons of mass
destruction.
- Modifications. From time to time, Revel may modify this
Agreement and/or the URL Terms and such modifications will
become effective as of the date such modification is made by
Revel. Customer may be required to electronically (including via
a "click and accept" pop-up) accept or otherwise agree to the
modified Agreement or URL Terms, and in any event, continued use
of the Service after an updated version of the Agreement or URL
Terms goes into effect will constitute Customer's acceptance of
the updated Agreement or URL Terms.
- Miscellaneous. This Agreement, including all Order Forms,
SOWs and URL Terms, constitutes the entire agreement between the
parties with respect to the subject matter hereof. This
Agreement, all Order Forms and/or SOWs and all other associated
documents, this to extend and include any and all correspondence
and notifications, have been negotiated and are solely intended
to be binding in their English version. All parties have agreed
that only the English meaning of a word is binding. Any
translation requested under any circumstance will only be
applicable for the sole internal purposes of the Customer and
will not be the basis of any claim, interpretation or award. In
the unlikely event a local law would award or consider a
translation of this Agreement a legal valid basis for a claim
against Revel, the Customer will hold Revel harmless of any such
award and any and all costs and legal fees associated with the
proceedings giving rise to the award. In the event of a
conflict, the following order of precedence will apply: the Data
Processing Addendum, Order Forms, SOWs, the body of this
Agreement and URL Terms other than the Data Processing
Addendum. Except as otherwise stated herein, this Agreement
supersedes all prior and contemporaneous agreements, proposals
or representations, written or oral, concerning its subject
matter. If the application of any provision of this Agreement to
any particular facts or circumstances will be held to be invalid
or unenforceable by an arbitration panel or a court of competent
jurisdiction, then (a) the validity and enforceability of such
provision as applied to any other particular facts or
circumstances and the validity of other provisions of this
Agreement will not in any way be affected or impaired thereby
and (b) such provision will be enforced to the maximum extent
possible so as to effect the intent of the parties and reformed
without further action by the parties to the extent necessary to
make such provision valid and enforceable. Notwithstanding any
language to the contrary therein, no terms or conditions stated
in a Customer purchase order or in any other Customer
correspondence or order documentation will be incorporated into
or form any part of this Agreement, and all such terms or
conditions will be null, unopposable and void. Section headings
are for convenience only and are not intended to affect the
meaning or interpretation of this Agreement. A reference to a
Section, Exhibit or Attachment which does not specify a
particular document is to the relevant Section, Exhibit or
Attachment of the document containing the reference. The words
"hereby," "herein," "hereof," "hereunder" or other words of
similar meaning refer to the entire document in which they are
contained, and the word "or" is not exclusive and the words
"including" or "include" are not limiting. This Agreement may be
executed in counterparts, which taken together will form one
binding legal instrument. The parties hereby consent to the use
of electronic signatures (including via a "click and accept" pop
up) in connection with the execution of this Agreement and any
amendments thereto, and further agree that electronic signatures
(including via a "click and accept" pop up) to this Agreement
and any amendments thereto will be legally binding with the same
force and effect as manually executed signatures.
- Attorney Fees. Customer shall pay on demand all of Revel's
attorney fees and other costs incurred by Revel in pursuing its
rights and remedies under this Agreement, including but not
limited to, collecting any unpaid fees, charges, penalties or
other damages due to Revel from Customer under this Agreement.
- US Federal Government End Use Provisions (if applicable).
Revel provides the Service, Software and API/XML, including
related software and technology, for federal government end use
solely in accordance with the following: US government technical
data and software rights related to the Service, Software and
API/XML include only those rights customarily provided to the
public as defined in this Agreement. This customary commercial
license is provided in accordance with FAR 12.211 (Technical
Data) and FAR 12.212 (Software) and, for US Department of
Defense transactions, DFAR 252.227-7015 (Technical Data --
Commercial Items) and DFAR 227.7202.3 (Rights in Commercial
Computer Software or Computer Software Documentation). If a
government agency has a "need for" right not conveyed under
these terms, it must negotiate with Revel to determine whether
there are acceptable terms for transferring additional rights. A
mutually acceptable addendum specifically conveying such rights
must be executed by the parties in order to convey such rights
beyond those set forth herein.
- Definitions.
"API/XML Terms" means the terms available at
www.revelsystems.com/APITerms/ (or successor location designated by
Revel), as such terms may be updated by Revel from time to time.
"Affiliate" means any entity which directly or indirectly controls,
is controlled by, or is under common control by either party. For
purposes of the preceding sentence, "control" means direct or indirect
ownership or control of more than fifty percent (50%) of the voting
interests of the subject entity.
"Agreement" means this Customer Agreement, including the URL Terms
and attachments thereto, and any fully executed Order Forms or SOW's.
"API" means Revel's application programming interface designed to
facilitate the transmission of data (including Customer Data) to and/or
from the Service and Software, licensed by Customer under an Order Form.
"Authorized Parties" means Customer's employees authorized to access
and use the Service, Software, API/XML and Hardware through the
Service's security designation.
"Business Purposes" means the facilitation of point of sale
processes, customer experience, customer relationship management, and
enterprise, inventory, employee and other internal management functions.
"Confidential Information" means (a) in the case of Revel, the Revel
POS Platform, the Service (including any software (source code and
object code) utilized by Revel in the provision of the Revel POS
Platform or Service), the Software (source code and object code),
API/XML and Work Product, and any improvements, modifications or
extensions made to any of the foregoing; (b) in the case of Customer,
Customer Data and Customer Materials; and (c) in the case of each party,
the party's business or technical information, including training
materials, information relating to software plans, designs, costs,
prices, finances, marketing plans, business opportunities, personnel,
research, development or know-how that is designated by the disclosing
party as "confidential" or "proprietary" or the receiving party knows or
should reasonably know is confidential or proprietary in light of the
nature of the information or the circumstances of its disclosure, and
the terms, conditions and pricing of this Agreement (but not its
existence or parties).
"Customer" has the meaning set forth in the introductory paragraph
of this Agreement.
"Customer Data" means the electronic data submitted by Customer or
Authorized Parties to the Service.
"Customer Feedback" has the meaning set forth in Section 5.2
(Customer Feedback).
"Customer Materials" means information, data and materials made
available to Revel by Customer in connection with this Agreement and any
Order Form or SOW.
"Consumer" means any individual or entity client or customer of
Customer.
"Data" means information relating to Consumers and/or transactions
conducted through the Revel POS Platform, where such information is
stored, transferred, or otherwise processed within the Revel POS
Platform. The Data includes SKU-level transaction data if such data is
made available to Customer.
"Data Processing Addendum" means the terms available at
www.revelsystems.com/DPA/ (or successor location designated by Revel),
as such terms may be updated by Revel from time to time.
"Deliverables" has the meaning set forth in Section 2.1 (Statements
of Work).
"Documentation" means Revel's electronic user manual for the Service
and Software, which may be updated by Revel from time to time.
"Hardware" means the Purchased Hardware and Third Party Hardware.
"Hardware" may include iPads, other smart tablets, mobile devices,
stands, cash drawers, payment card readers, printers, routers, scales
and other peripherals.
"Hardware Sale Terms" means the terms available at
www.revelsystems.com/HardwareSaleTerms/ (or successor location
designated by Revel), as such terms may be updated by Revel from time to
time.
"Improvements" means all improvements, updates, enhancements, error
corrections, bug fixes, release notes, upgrades and changes to the
Service or Software, as developed by Revel and made generally available
for production use without a separate charge to customers.
"Intellectual Property Rights" means any and all common law,
statutory and other industrial property rights and intellectual property
rights, including copyrights, trademarks, trade secrets, patents and
other proprietary rights issued, honored or enforceable under any
applicable laws anywhere in the world, and all moral rights related
thereto.
"Law" means any local, state, national and/or foreign law, treaties,
and/or regulations applicable to a respective party.
"Locations" means those Customer locations identified in the
applicable Order Form or SOW.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and
other malicious code, files, scripts, agents or programs.
"New Product" means a release with significant new functionality and
any associated user documentation which: (a) Revel in its sole
discretion designates as a new product; (b) is made generally
commercially available by Revel for a separate charge; and (c) is
marketed by Revel as a new product generally to its end user customers
even if it is capable of being integrated with the Service or Software.
"Offline Transactions" has the meaning set forth in Section 6.2
(Always-On Mode).
"Order Form" means the separate ordering document under which
Customer subscribes to the Service, licenses the Software or API/XML,
and/or purchases the Hardware, that has been fully executed by the
parties and accepted by Revel pursuant to Section 1.1 (Order Forms).
"Order Form Term" has the meaning set forth in Section 11.1 (Term of
Agreement, Order Form/SOW).
"Professional Services" means any installation, implementation,
training, project management, consulting and other services (outside the
scope of the Support Services) that are described in a SOW duly executed
by authorized representatives of both parties.
"Purchased Hardware" means the hardware identified on the applicable
Order Form as purchased by Customer from Revel.
"Revel" has the meaning set forth in the introductory paragraph of
this Agreement.
"Revel Advantage Program" means the Revel-recommended credit card
processing program which offers preferred processing rates and bundled
services negotiated by Revel with third party payment providers.
"Revel Care Program" means the Revel hardware protection program
offering Revel's Customer's additional protection for Purchased
Hardware.
"Revel Care Program Terms" means the terms available at
https://revelsystems.com/revel-care-terms/ (or successor location
designated by Revel), as such terms may be updated by Revel from time to
time.
"Revel POS Platform" means the platform commercialized by Revel to
conduct or facilitate point of sale ("POS") transactions and/or
electronic commerce transactions, including POS terminals ("POS
Terminals"), back end technology (including all technology relating to
data analytics, data management, data storage, reporting, ERP, CRM,
payroll management and other back end portal functionality) ("Back
End"), API/XMLs, networking, financial and electronic transaction
clearing, omnichannel functionality, and all other aspects of physical
and/or electronic commerce transactions processed through POS Terminals
and/or the Back End.
"Service" means Revel's subscription-based, software-as-a-service
offering provided to Customer by Revel in connection with Customer's use
of Software and Hardware, as described in the Documentation and
subscribed to under an Order Form. "Service" does not include payment
processing or gateway services.
"Software" means Revel's software applications that are installed on
the Hardware as described in the Documentation and licensed by Customer
under an Order Form.
"SOW" has the meaning set forth in Section 2.1 (Statements of Work).
"SOW Term" has the meaning set forth in Section 11.1 (Term of
Agreement, Order Form/SOW
"Support Terms" means the terms available at
www.revelsystems.com/SupportServicesTerms/ (or successor location
designated by Revel), as such terms may be updated by Revel from time to
time.
"Taxes" has the meaning set forth in Section 4.6 (Taxes).
"Term" has the meaning set forth in Section 11.1 (Term of Agreement
and Order Form).
"Third Party Hardware" means any third-party hardware not purchased
by Customer from Revel.
"URL Terms" means, collectively, the Additional API/XML Terms,
Support Terms, Hardware Sale Terms, Data Processing Addendum and Revel
Privacy Policy.
"Usage Data" has the meaning set forth in Section 5.6 (Usage Data).
"User ID" means the unique user identification for sign in by
Authorized Parties to the Revel POS Platform.
"Work Product" means all materials, software, tools, data,
inventions, works of authorship and other innovations of any kind,
including, without limitation, the Deliverables, that Revel, or
personnel working for or through Revel, may make, conceive, develop or
reduce to practice, alone or jointly with others, in the course of
performing Professional Services or providing Deliverables or as a
result of such Professional Services of Deliverables, whether or not
eligible for patent, copyright, trademark, trade secret or other legal
protection.
"XML" means Revel's extensible markup language feed designed to
facilitate the transmission of Data from Revel's POS Platform to an IP
address provided by Customer.
v.5.5