The Alliance Laundry Systems Payment Application and Portal Services Agreement (the “Agreement”) is a legally binding contract between you and/or your company (“Customer”) and Alliance Laundry Systems PO Box 990 Shepard Street Ripon, WI 54971 (“ALS”). The Agreement sets out the terms and conditions under which Customer may utilize the Transaction Services. Customer should read this Agreement carefully.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE APP (AS DEFINED HEREIN).
By clicking on the “I AGREE” button or a similar affirmation, or by acknowledging acceptance of the Agreement by any other method allowed by ALS, or by using or accessing the Transaction Services through any means permissible including, without limitation via a computer or a mobile application, Customer acknowledges and agrees that: (i) it has reviewed and understands the Agreement; (ii) it agrees to be legally bound by the terms and conditions of the Agreement; and (iii) its use of the Transaction Services and any related products or services will be governed by this Agreement. If Customer does not agree or is not willing to be bound by the terms and conditions of this Agreement, Customer should not click on the “I AGREE” button and should not seek to obtain or use the Transaction Services.
By accepting the terms and conditions of this Agreement, Customer represents and warrants that (a) the person executing this Agreement on behalf of Customer is 18 years of age or older, (b) all information Customer has provided to ALS is true and correct in all respects, and (c) Customer will promptly update ALS in writing with any changes to information Customer has previously supplied. Customer further represents and warrants that Customer has the legal authority to accept the terms and conditions of this Agreement and that such acceptance will be binding on Customer. ALS reserves its right, in its sole discretion, to refuse to provide Customer with any ALS product or service, including the Transaction Services.Words and phrases with initial letters capitalized and not otherwise defined herein shall have the meaning set forth in Section 15.
2.1 Transaction Services.
ALS shall provide to Customer the Transaction Services at the rates set forth in the order document and in accordance with the terms and conditions of this Agreement.
2.2 Customer Service.
During the term of this Agreement, if Customer is current in payment of all fees owing to ALS and is otherwise not in default under this Agreement, ALS shall provide customer service to Customer, as set forth on the ALS transaction portal and additionally by email atsoftwaresupport@alliancels.com
3.1 ID and Password.
Customer must select an ID and password to enable Customer to access Customer’s payment application and portal account and use the Transaction Services. Customer will restrict access to such ID, password, and account to Customer’s employees and agents as may be reasonably necessary consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement regarding such use and access. Customer is solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes for purposes of giving Customer access to the Transaction Services. ALS shall be entitled to rely on information it receives from Customer and may assume that all such information was transmitted by or on behalf of Customer. Customer shall comply with all ALS recommendations and notices regarding the security of Customer’s ID, password and payment application and portal account(s).
3.2 Relationship to Merchant Service Providers.
Customer may have entered into a separate agreement related to the Transaction Services with a Merchant Service Provider. In addition to any other agreement Customer may have with the Merchant Service Provider, the terms and conditions of this Agreement govern Customer’s use and ALS's provision of the Transaction Services. Customer expressly acknowledges and agrees that ALS may share information about Customer and Customer’s account with its Merchant Service Providers and that such sharing of information is in integral to receiving the Transaction Services.
3.3 Compliance.
In connection with the exercise of Customer’s rights and obligations under this Agreement (including, without limitation, any related to privacy), Customer will comply, at Customer’s own expense, with the Data Protection Legislation and all laws, policies, guidelines, regulations, ordinances, rules applicable to Customer, this Agreement, End User data or the Transactions and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof, including, without limitation, the Payment Network Rules and the Services Documentation. ALS reserves the right to amend, modify or change the Services Documentation at any time. Customer shall not use the Transaction Services in any manner, or in furtherance of any activity that may cause ALS to be subject to investigation, prosecution, or legal action.
3.4 Additional Solutions and Services.
In the event that Customer enrolls in and/or utilizes any of ALS’s Additional Services, Customer hereby acknowledges and agrees that such Additional Services may be subject to additional terms and conditions.
3.5 Third Party Products and Services.
Customer’s use of third party products and services shall be governed by and subject to separate third party product, service, software, and/or license agreements. ALS will not be a party to such third party agreements and does not warrant or guarantee any third party product or service.
4.1 Data Protection.
The parties understand that ALS or any ALS affiliate shall act as the processor and Customer shall act as controller of End Users’ personal data in connection with this Agreement. Each party shall comply with their respective obligations with regards to Personal Data contained in Appendix B(I) and B(II), as applicable, of this Agreement.
4.2 Customer.
a) Customer shall comply with all applicable laws (including the Data Protection Legislation), policies and regulations governing the security, privacy, collection, retention and use by Customer of End User data, including, without limitation, personal data, financial information, card account numbers, and all other personally identifiable End User information.
b) As controller of the personal data, Customer agrees to provide notice to End Users on Customer’s website that discloses how and why personal and financial information is collected and used in accordance with applicable laws.
c) Customer agrees that Customer will comply with all ALS security protocols and security advisories in effect during the term of this Agreement. Customer is solely responsible for verifying the accuracy and completeness of all Transactions associated with Customer’s account that are submitted and processed by ALS (for deployments outside the United States) or by the payment processing entity with whom Customer enters into an agreement for payment processing services. Customer is solely responsible for verifying that all corresponding funds are accurately processed. In instances where payment processing is performed by a third party payment processing entity with whom Customer enters into an agreement for payment processing services, Customer acknowledges that ALS shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Customer’s account, End-User or Transaction data. For deployments where ALS is performing payment processing services, ALS’s liability for improperly processed or unauthorized Transactions solely attributable to the negligence of ALS is limited pursuant to Section 12.
4.3 ALS.
a) ALS will collect, retain, disclose and use the Personal Data, collected from End Users in accordance with its obligations contained in Appendix B(I) or B(II), as applicable, of this Agreement.
b) With respect to the Transaction Services, at all times while this Agreement is in effect, ALS will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS) to the extent the same are applicable to ALS.
4.4 Data Retention.
ALS is responsible for compiling and retaining records of all Transactions and End-User data for Customer’s reference. ALS shall store, retain, report or otherwise provide any copies of or access to any records of Transactions or End-User data collected or processed by ALS for so long as Customer maintains an active subscription to the Service and in accordance with applicable Data Protection Legislation.
5.1 ALS Service Fees.
Customer shall pay to ALS the fees set forth in the Order, which is hereby incorporated into the terms of this Agreement by reference. Notwithstanding anything to the contrary and if agreed upon by the parties, a Merchant Service Provider may charge, bill, and collect such fees from Customer, in the amounts stated in and in accordance with the terms and conditions of the agreement between Customer and such Merchant Service Provider. If Customer’s relationship with a Merchant Service Provider expires or terminates and such Merchant Service Provider was billing Customer for certain fees, Customer agrees to directly pay ALS for any further use of the Transaction Services effective immediately upon any such expiration or termination in accordance with the terms herein.
5.2 Account Fees.
5.2.1 Late Payment Fee.
If Customer does not pay owing amounts on or before the payment due date, ALS has the right, but not the obligation, to terminate Customer’s use of the Transaction Services and Customer will be responsible for all unpaid fees related thereto. As between ALS and Customer, Customer will be liable for any damages claimed by Customer’s end users resulting from Customer’s failure to meet its’ payment obligations hereunder.
5.2.2 Abandoned Account Fee.
If Customer’s account becomes an Abandoned Account with a balance due to Customer, Customer shall be assessed a monthly Abandoned Account Fee. In addition, all costs incurred by ALS in managing Customer’s Abandoned Account, including costs associated with attempting to locate Customer to deliver Customer’s account balance or incurred with respect to escheating Customer’s funds to the appropriate governmental agency will be deducted from Customer’s account, as applicable.
5.3 Taxes.
The fees described above are exclusive of all taxes. Customer agrees to pay all applicable taxes other than tax assessed on ALS’s income. Customer agrees that the payment of fees to ALS shall be made without deduction or withholding for any taxes. If Customer is required to withhold any taxes, the amount paid by Customer to ALS shall be increased to the extent necessary to yield to ALS (after withholding of such taxes) a net amount equal to the amount ALS would have received had no such withholding been made. Customer bears the ultimate responsibility for the proper payment of taxes applicable to Customer’s sale of its products or services.
5.4 Opening/Closing Accounts.
Should a Customer fail to pay fees due under an ALS account (“Original Account”) and subsequently opens another ALS account (“Subsequent Account”) ALS reserves the right to bill the Subsequent Account for amounts due under the Original Account whether or not the Original Account was closed.
6.1 ALS Bills Customer.
6.1.1 Billing Terms.
Any customer without an ALS credit account hereby authorizes ALS to charge Customer’s credit card provided in the order form for all amounts due to ALS by Customer under this Agreement. Charges or credits to Customer’s credit card account will be in accordance with Payment Network Rules and/or any other regulatory body or agency having jurisdiction over the subject matter hereof.
6.1.2 Disputes.
The parties shall promptly investigate any disputed fees under this Agreement. A dispute will not relieve Customer of its payment obligations herein. If an event of dispute is resolved in Customer’s favor ALS will credit back to Customer any applicable overpayments made by Customer. All disputes must be made in good faith and in writing within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within such thirty (30) day period.
6.2 Merchant Service Provider Bills Customer.
Notwithstanding Section 6.1, if Customer is to be billed by a Merchant Service Provider for some or all of the fees associated with Transaction Services, Customer shall pay the Merchant Service Provider in accordance with the terms mutually agreed upon between Customer and such Merchant Service Provider provided no such payment will have the effect of reducing the amounts owed to ALS.
This Agreement shall commence on the Effective Date and remain in full force and effect until terminated pursuant to Section 8.
8.1 Termination by Customer.
Customer may terminate this Agreement at any time and for any reason, with or without cause, upon written notice to ALS, such termination to be effective at the end of the then-current term, unless such termination is for ALS’s uncured material breach of this Agreement, in which case Customer may terminate this Agreement on not less than thirty (30) days’ written notice to ALS.
8.2 Termination by ALS.
ALS may terminate this Agreement and/or Customer’s access to the Transaction Services, at any time and for any reason, with or without cause, upon not less than thirty (30) days’ written notice, and in the event such termination is without cause, the termination will be effective on the anniversary date of Customer’s agreement to use the Transaction Services.
8.3 Termination or Suspension of Customer by a Merchant Service Provider.
If ALS is to be paid for Customer’s access to and use of the Transaction Services by a Merchant Service Provider, and if ALS receives notice from such Merchant Service Provider that it has terminated or suspended its relationship with Customer, ALS may suspend and/or terminate Customer’s right to access and use the Transaction Services and/or this Agreement without notice and without liability. In addition, ALS may suspend and/or terminate the Transaction Services and/or this Agreement without notice and without liability upon receipt of notice from Customer’s Processor or acquiring bank that Customer is no longer entitled to send an authorization message, settlement message, or other message or payment data related to a card transaction to Customer’s Processor.
8.4 Threatening Condition.
In the event that ALS reasonably believes that Customer is in violation of its obligations hereunder, including, without limitation, selling products or services that violate applicable law or regulation, or that Customer’s conduct poses a threat to ALS’s systems, equipment, processes, or Intellectual Property (the “Threatening Condition”) ALS may immediately suspend Customer’s Account(s). In any event, ALS may terminate this Agreement if the Threatening Condition remains uncured more than thirty (30) calendar days after Customer is notified of the Threatening Condition.
8.5 Effect of Termination.
Upon termination of the Agreement for any reason, all rights and obligations of the parties under this Agreement shall be extinguished, except that (a) all payment obligations hereunder shall survive such termination; and (b) the rights and obligations of the parties that should by their nature survive such termination shall survive such termination.
9.1 ALS.
The parties agree that ALS owns and retains all right, title and interest in and to the ALS Trademarks, Transaction Services, copyrights and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to Customer or any other entity or person under this Agreement. Customer will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the Transaction Services or related technology.
9.2 ALS Trademarks License.
Subject to the terms and conditions contained herein, ALS hereby grants to Customer a non- exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display the ALS Trademarks on Customer’s website in connection with Customer’s offering of payment options to End Users.
9.3 Customer’s Marks License.
Subject to the terms and conditions contained herein, Customer hereby grants to ALS a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display Customer’s Marks as necessary in connection with the performance of the Transaction Services.
9.4 Use of Trademarks.
Each party shall strictly comply with all standards with respect to the other party's Trademarks contained herein or which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more Trademarks of the other party. All uses of the other party's Trademarks shall inure to the benefit of the party owning such Trademark. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party.
9.5 Use the Appropriate ® or ™ Symbol.
Customer must reproduce any ALS Trademarks exactly as shown in Appendix A, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or ™ symbol at the first and most prominent reference, or as soon as practicable thereafter.
9.6 Trademarks and Domain Registration.
Except as otherwise provided herein, Customer shall not use, register or attempt to register any (a) ALS Trademarks or (b) marks or domain names that are confusingly similar to any of the ALS Trademarks or the Domain(s).
9.7 Trademark Restrictions.
Customer shall not (a) use the ALS Trademarks except as expressly authorized in this Agreement; (b) take any actions inconsistent with ALS’s ownership of the ALS Trademarks and any associated registrations, or attack the validity of the ALS Trademarks, its ownership thereof, or any of the terms of this Agreement; (c) use the ALS Trademarks in any manner that would indicate Customer is other than as a licensee of ALS; nor (d) permit any third party to do any of the same.
10.1
Each Party (the “Receiving Party”) hereby agrees (i) to hold the other party’s (the “Disclosing Party”) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to remove or export from the United States or re-export any such Confidential Information or any direct product thereof, except in compliance with, and with all licenses and approvals required under, applicable U.S. and foreign export laws and regulations, (v) not to copy or reverse engineer any such Confidential Information, and (vi) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate “need to know” and shall be bound in writing to comply with the Receiving Party’s confidentiality obligations, whether generally or specific to this Agreement.
10.2
Except as otherwise provided in this Agreement, within thirty (30) calendar days of termination of this Agreement, the Receiving Party shall, destroy all materials that constitute Confidential Information and/or Intellectual Property of the Disclosing Party and upon request provide to the Disclosing Party written certification signed by an authorized officer of the Receiving Party that all such information was so destroyed. Notwithstanding the foregoing, each party may retain Confidential Information that is (i) stored on archival or back-up files and is required to be retained for a legitimate business purpose or (ii) required for compliance with applicable law, rule, regulation, or its obligations pursuant to this Agreement, provided that such party continues to maintain confidentiality of such Confidential Information pursuant to the terms of this Agreement.
10.3
Notwithstanding any provision in this Agreement to the contrary, each party may disclose Confidential Information of the other party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction.
11.1 Mutual Warranties.
Each party represents and warrants to the other that (a) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of this Agreement, (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, (d) the party's obligations under this Agreement do not violate any applicable law, policy or regulation or breach any other agreement to which such party is bound; and (e) it has all right, title or interest, or valid license to use its respective Marks, and that its grant of rights associated therewith do not violate any intellectual property or other proprietary rights of any third party.
11.2 ALS Warranties.
11.2.1
With respect to the Transaction Services, ALS represents and warrants that the Transaction Services provided to Customer hereunder will conform substantially to specifications set forth in the applicable Services Documentation, as may be amended from time to time at ALS’s sole discretion. The preceding warranty will not apply if (a) any Transaction Services or products provided hereunder are used in a manner inconsistent with this Agreement or Services Documentation; (b) any Transaction Services or products have been modified without the prior written consent of ALS; or (c) a defect in any Transaction Services or products has been caused by any of Customer’s malfunctioning equipment or software. Customer expressly acknowledges that the certain of the Transaction Services are computer network-based services, which may be subject to outages, interruptions, attacks by third parties and delay occurrences.
11.2.2
In the event Customer discovers that any Transaction Services or products are not in conformance with the representations and warranties made in Section 11.2.1 and report such non-conformity to ALS or if the Transaction Services are subject to outages, interruptions, attacks by third parties and delay occurrences, ALS shall use commercially reasonable efforts to remedy material interruptions and will provide adjustments, repairs and replacements, within its capacity, that are necessary to enable the Transaction Services to perform their intended functions in a reasonable manner. Customer acknowledges that ALS does not warrant that such efforts will be successful. If ALS's efforts are not successful, Customer may terminate this Agreement with written notice to ALS. The foregoing shall constitute Customer’s sole remedy, and ALS's sole liability, in the event of interruption, outage or other delay occurrences in the Transaction Services. ALS does not warrant the services of any third party, including without limitation, the Merchant Service Provider, bank or any third party processor.
11.2.3
Where the Transaction Services are provided in Australia, nothing in this Agreement is intended to exclude, restrict or modify any consumer rights under the Competition and Consumer Act 2010 (Cth) (“CCA”) or any other applicable law which may not be excluded, restricted or modified by agreement. If the CCA or any other applicable law implies a condition, warranty or term into this Agreement or provides statutory guarantees in connection with this Agreemnt, in respect of goods and services supplied (if any), ALS’s liability for breach of such condition, warranty or other term or guarantee is limited (at ALS’s election) to the extent it is able to do so: (a) in the case of supply of goods, ALS doing any one or more of the following: (i) replacing the goods or supplying equivalent goods; (ii) repairing the goods; (iii) paying the cost of replacing the goods or of acquiring equivalent goods; and/or (iv) paying the cost of having the goods repaired; or (b) in the case of supply of services, ALS doing either or both of the following: (i) supplying the services against; and/or (ii) paying the cost of having the services supplied again.
11.2.4 DISCLAIMER.
THE TRANSACTION SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. ALS DOES NOT REPRESENT OR WARRANT THAT THE TRANSACTION SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. CUSTOMER MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE TRANSACTION SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY MERCHANT SERVICE PROVIDER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.2.1, ALS SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE TRANSACTION SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT ALS SHALL BEAR NO RISK WITH RESPECT TO CUSTOMER’S SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CARD FRAUD OR CHARGEBACKS.
11.3 Customer’s Warranties.
Customer represents and warrants that at all times during the term of this Agreement and any renewal thereof: (i) all representations and statements made by Customer in this Agreement, or in any other document relating hereto by Customer or on Customer’s behalf, are true, accurate and complete in all material respects; (ii) it is engaged in a lawful business and has all necessary rights and authorizations to sell and distribute its products and/or services; (iii) Customer will comply, at Customer’s own expense, with all laws, policies, guidelines, regulations, ordinances or rules applicable to Customer, this Agreement, End User data or the Transactions, including, without limitation:
(a) Data Protection Legislation; (b) any regulatory body or agency having jurisdiction over the subject matter hereof; and (c) the Services Documentation.
11.4 Third Party Programs.
Customer acknowledges that the Transaction Services are designed for use with certain third party programs, including, without limitation, certain Internet browser and software programs developed and owned by third parties. Customer will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. ALS does not warrant and shall not be responsible for services or software provided by unaffiliated third party vendors. Customer authorizes ALS to disclose to any third party vendor information concerning Customer to the extent required to deliver the requested service.
12.1 THIRD PARTY PRODUCTS AND SERVICES.
ALS MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS OR SERVICES. CUSTOMER’S USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT CUSTOMER’S OWN RISK. ALS ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT ALS IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.
12.2 LIMITATIONS
UNDER NO CIRCUMSTANCES (I) WILL ALS OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS (OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR VENDORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGE OR LOSS SUFFERED OR INCURRED BY CUSTOMER, REGARDLESS OF THE FORM OF ACTION, OR FOR ANY DIRECT OR INDIRECT LOSS OF REVENUE, PROFITS OR BUSINESS, ANTICIPATED SAVINGS, LOSS OF GOODWILL OR REPUTATION, COSTS OF DELAY, LOST OR DAMAGED DATA, OR THE INCURRING OF LIABILITY FOR LOSS OR DAMAGE OF ANY NATURE WHATSOEVER SUFFERED BY THIRD PARTIES, ALL WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) WILL ALS’S TOTAL AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE GREATER OF THE AGGREGATE COMPENSATION ALS RECEIVED FOR PROVIDING THE TRANSACTION SERVICES TO CUSTOMER DURING THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,000. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO EXCLUDE OR LIMIT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.
12.3 DISCLAIMER.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CUSTOMER EXPRESSLY AGREES THAT ALS SHALL NOT BE LIABLE FOR ANY LOSS (HOWEVER OCCURRING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (A) CUSTOMER’S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE CUSTOMER’S MERCHANT ACCOUNT; (B) FRAUDULENT TRANSACTIONS PROCESSED THROUGH CUSTOMER’S PAYMENT GATEWAY ACCOUNT(S); (C) DISRUPTION OF TRANSACTION SERVICES, SYSTEMS, SERVER OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (D) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A MERCHANT SERVICE PROVIDER, PAYMENT PROCESSOR OR BANK; OR (E) THE LIMITATION OF THE FUNCTIONING OF ANY TRANSACTION SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH.
12.4 THIRD PARTY PRODUCTS AND SERVICES.
ALS MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS OR SERVICES. CUSTOMER’S USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT CUSTOMER’S OWN RISK. ALS ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT ALS IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.
13.1 Indemnification by ALS.
13.1.1 General.
ALS shall defend, indemnify and hold Customer and any of Customer’s officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Customer, arising out of or relating to any alleged infringement of a U.S. patent or copyright of any other entity or person by the Transaction Services.
13.1.2 Limitation; Prevention of Infringement.
ALS's obligations in Section 13.1.1 do not apply if: (i) the Transaction Services have been modified by parties other than ALS; (ii) the Transaction Services are used in conjunction with data where use with such data gave rise to the infringement claim; (iii) Customer’s failure to install upgrades or patches provided by ALS where such upgrade or patch would have removed the infringing condition; (iv) Customer’s use of the Transaction Services in a manner inconsistent with Services Documentation; or (v) Customer’s use of the Transaction Services with software or hardware not authorized by ALS, where use with such other software or hardware gave rise to the infringement claim. If the Transaction Services or any component thereof becomes, or in ALS's opinion is likely to become, the subject of a claim of infringement, then Customer shall permit ALS, at ALS's sole option and expense, either to (i) procure for Customer the right to continue using the Transaction Services as permitted in this Agreement, or (ii) replace or modify the affected Transaction Services or infringing component so that it becomes non- infringing. If, after using commercially reasonable efforts, ALS is unable to cure the infringement, either party may immediately terminate this Agreement. THIS SECTION 13.1.2 STATES THE ENTIRE LIABILITY OF ALS TO CUSTOMER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE TRANSACTION SERVICES.
13.2 Indemnification by Customer.
Customer shall defend, indemnify and hold harmless ALS and its affiliates, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by ALS, arising out of or relating to (a) any breach or alleged breach by Customer of any representation, warranty, or obligation of Customer set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Customer or any of Customer’s employees, agents or customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by Customer to ALS; (d) payment card transactions submitted by Customer to ALS and rejected by ALS or an issuing bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from Customer’s actions; claims by End Users, including, without limitation, claims relating to the disclosure of End User or consumer data; or any alleged or actual violation by Customer of any applicable laws, regulations, the Payment Network Rules or any regulatory body or agency having jurisdiction over the subject matter hereof. In the event Customer causes fines and/or penalties to be charged to ALS by the Payment Networks or any other entity, Customer agrees to immediately reimburse ALS for said fines or penalties.
Indemnification Procedure.
The obligations of each party (“Indemnitor”) under this Section 13 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way.
13.4 Exceptions.
The indemnity obligations under Sections 13.1 and 13.2 shall apply only to the extent permitted by applicable law.
14.1 Marketing.
Except for any announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of either party, all media releases, public announcements or public disclosures (including, but not limited to, promotional or marketing material) by either party or its employees or agents relating to this Agreement or its subject matter, or including the name, trade name, trademark, or symbol of the other party, are prohibited without the prior written consent of both parties. Notwithstanding the foregoing, either party shall be entitled to disclose the existence of the relationship formed hereunder between ALS and Customer without the prior written consent of the other party and ALS shall be entitled to include Customer’s name and/or logo in customer lists within ALS corporate presentations without prior written consent.
14.2 Non-exclusivity.
Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.
14.3 Relationship of the Parties.
The parties are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise. Customer further recognize that if Customer contracted for the Transaction Services with a Merchant Service Provider, such provider is an independent contractor and is not a joint venturer, partner, or agent of ALS.
14.4 Notices.
All notices to Customer shall be given electronically, sent to the electronic mail address provided by or for Customer during registration for the Transaction Services. Service termination notices to ALS shall be given electronically and sent tosoftwaresupport@alliancels.com. All other notices to ALS must be in writing and sent to Alliance Laundry Systems LLC, PO Box 990, Shepard Street, Ripon, WI 54971, USA Attention: Legal Department. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid. Electronic mail notices shall be deemed given the next business day following the date delivered.
14.5 Amendment; Modifications.
No amendment, modification, or change to any provision of this Agreement, nor consent to any departure by either party therefrom, will in any event be effective unless the same will be in writing and signed by the other party, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, ALS may amend this Agreement at any time upon written or electronic notice to Customer of not less than thirty (30) days prior to the effective date of such amendment in the event. Changes to the Agreement that impact Customer’s commercial terms will be effective on the anniversary or renewal date of Customer’s agreement; changes that are required by law, rule or regulation will be effective as promptly as practicable after notice therof but in no event later than is required by the applicable law, rule or regulation. If Customer does not agree to such amendments, Customer’s sole remedy is to immediately terminate this Agreement upon written notice to ALS.
14.6 Severability; Headings.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.
14.7 Governing Law; Consent to Jurisdiction.
This Agreement will be deemed entered into in State of Wisconsin, USA and will be governed by and interpreted in accordance with the laws of the State of Wisconsin, USA excluding (i) that body of law known as conflicts of law and (ii) the United Nations Convention on Contracts for the International Sale of Goods. The parties agree that any dispute arising under this Agreement will be resolved in the state or federal courts in Fond du Lac County, Wisconsin, USA and the parties hereby expressly consent to jurisdiction therein.
14.8 Arbitration.
Any dispute arising out of or relating to this Agreement, including the breach, termination or validity thereof, must be brought to, and shall be finally resolved by, arbitration in accordance with the International Institute for Conflict Prevention and Resolution (“CPR”) Rules for Administered Arbitration of International Disputes by three arbitrators, of whom each party shall designate one, with the third arbitrator to be appointed by CPR. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof as set forth in Section 14.7. The seat of the arbitration shall be Ripon, Wisconsin. The language of the arbitration shall be English.
14.9 Waiver.
The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.
14.10 Assignment.
Customer will not have the right or the power to assign any of Customer’s rights or delegate the performance of any of Customer’s obligations under this Agreement without the prior written consent of ALS.
14.11 Force Majeure.
Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the Transaction Services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Transaction Services, or other catastrophes or any other occurrences which are beyond such parties' reasonable control (each a “Force Majeure Event”), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.
14.12 Entire Agreement.
This Agreement together with all of ALS's policies referenced herein sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. Customer acknowledges that this Agreement reflects an informed, voluntary allocation between ALS and Customer of all risks (both known and unknown) associated with the Transaction Services.
14.13 Survival.
The provisions of this Agreement relating to any fees or other amounts owed, payment of interest on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings and this paragraph shall survive termination or expiration of this Agreement.
14.14Mobile Device Application.
If Customer chooses to download and use the ALS mobile device application, Customer’s use of the application shall be subject to the additional usage terms governing such application located within the application service provider’s user interface.
14.15 Affiliates.
The rights, duties and/or obligations of ALS under this Agreement may be exercised and/or performed by ALS and/or any of ALS’s Affiliates, or any of their subcontractors and/or agents. All liabilities arising under or as a consequence of this Agreement, whether arising from the acts or omissions of ALS or any of ALS’s Affiliates, or any of their subcontractors and/or agents, shall be solely ALS’s and not those of any of ALS’s Affiliates, or any of their subcontractors and/or agents. Customer agrees to bring any claim and or action relating to the foregoing against ALS only and not against any of ALS’s Affiliates, or any of their subcontractors and/or agents.
14.16 Export Control.
Customer understands and acknowledges that ALS is subject to regulation by agencies of the U.S. government which prohibits export or diversion of certain products and technology to certain countries, persons, or other entities. Any and all obligations of ALS to provide the Transaction Services shall be subject to all applicable export laws and restrictions and regulations. Customer agrees to comply with all applicable export laws and restrictions and regulations and not to export or re-export any ALS Intellectual Property (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods including, without limitation, Iran, Cuba, Syria, Sudan, the Crimea Region of the Ukraine, and North Korea; or (ii) to any person on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Person’s List.
means any inactive account through which no Transactions have been processed for a minimum of six (6) months AND for which all contact information (address, phone numbers, fax numbers, email address) and billing information (bank account number and/or card number) is no longer valid.
means a top-level gateway identifier that is issued by ALS to Customer to enable Customer’s use of Transaction Services hereunder. For each business unit within Customer’s organization that requires invoices to be sent to an address different than the primary Account, a new Account is required.
means any service or product that may be offered by ALS in the future.
means any entity that controls, is controlled by, or is under common control with a party, including its parents and subsidiaries.
means application programming interface.
means any batch settlement submitted to a Processor by ALS consisting of any card authorization, credit, token, decline transaction or other related transaction.
shall mean any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Services Documentation (in whatever form or media provided), inventions, processes, plans, financial information, End-User data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving party prior to the Effective Date of this Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.”
has the meaning given to it in Appendix B(I) and B(II).
means any website or sites operated by or for ALS.
means the earlier of the date Customer acknowledges and agrees to the Agreement terms and conditions by (a) clicking the “I AGREE” button associated with the Agreement; (b) acknowledging Customer’s acceptance of the Agreement by any other method allowed by ALS, including without limitation execution of a Merchant Service Provider application that incorporates the Agreement by reference; or (c) by using the Transaction Services.
shall mean any person that purchases any of Customer’s goods or services, whose information will be transmitted via the payment application during the course of Customer’s provision of the goods and services.
means a list of fees and charges to be paid by Customer to ALS. The Fee Schedule is set forth on the applicable order document.
shall mean all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and all derivatives of any of the foregoing.
for purposes of this Agreement, a Merchant Service Provider shall mean any third party through whom ALS may offer the Transaction Services to Customer.
means Visa, MasterCard, American Express, Discover Financial Services, and any affiliates thereof or any other payment network applicable to this Agreement. “Payment Network Rules” means the operating rules, bylaws, schedules, supplements and addenda, manuals, instructions, releases, specifications and other requirements, as may be amended from time to time, of any of the Payment Networks.
see sq.alsgtg.com/en-US/privacy
means a card processor that processes Transactions for Customer.
means collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to Customer and that are intended for use in connection with the Transaction Services.
means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.
means any card authorization, credit, ticket only, capture or settlement request, decline transaction, or other related transaction, completed or submitted under Customer’s account to ALS.
means the ALS payment management solutions provided to Customer under the Agreement.
I. ALS Marks.
For purposes of this Agreement, “ALS Trademarks” means those trademarks listed below and such other trademarks as ALS may from time to time notify Customer in writing to be “ALS Trademarks” within the meaning of this Agreement.
II. Customer’s Marks.
For purposes of this Agreement, “Customer’s Marks” means Customer’s customary name and logo, and such other trademarks as Customer may from time to time notify ALS in writing to be “Customer’s Marks” within the meaning of this Agreement.
1. Definitions and Interpretation
1.1 The following definitions and rules of interpretation apply in this DPA.
"Business Purpose" means the services described in the Agreement or any other purpose specifically identified in Appendix A.
"Data Subject" means an individual who is the subject of Personal Information.
"Personal Information" means any information ALS processes for the Customer that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in ALS's possession or control or that ALS is likely to have access to, or (b) the relevant Privacy and Data Protection Requirements otherwise defined as protected personal information.
"Processing, processes, or process" means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties.
"Privacy and Data Protection Requirements" means all applicable federal and state laws and regulations relating to the processing, protection, or privacy of the Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
"Security Breach" means any act or omission that compromises the security, confidentiality, or integrity of Personal Information or the physical, technical, administrative, or organizational safeguards put in place to protect it. The loss of or unauthorized access, disclosure, or acquisition of Personal Information is a Security Breach whether or not the incident rises to the level of a security breach under the Privacy and Data Protection Requirements.
Other capitalized terms have the definition given to them in the Alliance Laundry Systems Payment Application And Portal Service Agreement between Customer and ALS (“the Agreement”).
1.2 This DPA is subject to the terms of the Agreement and is incorporated into the Agreement. Interpretations and defined terms set forth in the Agreement apply to the interpretation of this DPA.
1.3 A reference to writing or written includes faxes and email.
1.4 In the case of conflict or ambiguity between any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA will prevail; and
2. Personal Information Types and Processing Purposes The Customer retains control of the Personal Information and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to ALS.
3. Provider's Obligations
3.1 ALS will only process, retain, use, or disclose the Personal Information to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer's written instructions. ALS will not process, retain, use, or disclose the Personal Information for any other purpose or in a way that does not comply with this DPA or the Privacy and Data Protection Requirements. ALS must promptly notify the Customer if, in its opinion, the Customer's instruction would not comply with the Privacy and Data Protection Requirements. The foregoing notwithstanding, the Customer acknowledges that ALS is under no duty to investigate the completeness, accuracy, or sufficiency of any specific Customer instructions or the Personal Information other than as required under the Privacy and Data Protection Requirements.
3.2 ALS must promptly comply with any Customer request or instruction requiring ALS to amend, transfer, or delete the Personal Information, or to stop, mitigate, or remedy any unauthorized processing.
3.3 ALS will maintain the confidentiality of all Personal Information, will not sell it to anyone, and will not disclose it to third parties unless the Customer or this DPA specifically authorizes the disclosure, or as required by law. If a law requires ALS to process or disclose Personal Information, ALS must first inform the Customer of the legal requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
3.4 ALS will reasonably assist the Customer with meeting the Customer's compliance obligations under the Privacy and Data Protection Requirements, taking into account the nature of ALS's processing and the information available to ALS.
3.5 ALS must promptly notify the Customer of any changes to Privacy and Data Protection Requirements that may adversely affect ALS's performance of the Agreement.
3.6 ALS will only collect Personal Information for the Customer using a notice or method that the Customer specifically provides or pre-approves in writing (“Privacy Notice”). ALS will not modify or alter the notice in any way without the Customer's prior written consent.
3.7 ALS acknowledges that, without limiting any obligations under any Privacy and Data Protection Requirements, it is a “service provider” as that term is defined in the California Consumer Protection Act of 2018, Cal. Civ. Code §§ 1798.100–1798.199.
3.8 ALS will:
(a) implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk relating to its processing of the Personal Information;
(b) keep, and procure that its partners, employees, agents and subcontractors keep, Personal Information confidential in accordance with ALS’s confidentiality obligations contained in clause 10 of the Agreement (Confidential Information);
(c) notify the Customer without undue delay, and provide reasonable cooperation after becoming aware of a Personal Information breach relating to Personal Information in ALS’s possession or control;
(d) provide reasonable cooperation and assistance to the Customer in relation to any request by a data subject to have access to Personal Information held about them or in relation to a reasonable request, allegation or complaint by a competent authority or data subject, including notifying the Customer in writing without undue delay of receipt of any request (save to the extent prevented from doing so by applicable law);
(e) be entitled to recover any reasonable costs incurred in assisting the Customer in meeting its obligations under the Privacy and Data Protection Requirements;
(f) at the reasonable request of the Customer, delete or return all Personal Information to the Customer on termination or expiry of the Agreement.
3.9 To the extent required by Privacy and Data Protection Requirements, ALS shall maintain a record of its processing activities and provide such cooperation and information to the Customer as is reasonably necessary for the Customer to demonstrate compliance with such Privacy and Data Protection Requirements. Such cooperation shall include permitting the Customer, at the Customer's sole cost and expense, to audit ALS's compliance with this Appendix 1.
3.10 The Customer authorises ALS to use any subcontractor, including any ALS affiliate, to process Personal Information as a subprocessor of ALS provided that ALS shall ensure that (a) such processing is subject to a written contract or other legal act with such sub-processor containing data protection obligations no less onerous than those set out in this DPA; and (b) ALS shall remain liable for the acts and omission of any such sub-processor with respect to the processing of Personal Information.
3.11 The Customer shall ensure that:
(a) it complies with Privacy and Data Protection Requirements in relation to any of its processing of Personal Information; and
(b) any consents relied upon are sufficient for the purposes of Privacy and Data Protection Requirements.
3.12 The parties acknowledge and agree that it is the Customer's responsibility to ensure that all of its processing of Personal Information (including for direct marketing purposes) is undertaken in accordance with Privacy and Data Protection Requirements and that ALS is not responsible for ensuring the lawfulness of any activities (including direct marketing activities) undertaken by the Customer in relation to the Personal Information.
1. Data Protection
1. Data Protection
1.1 In this Appendix B, "Data Protection Legislation" means "Data Protection Legislation" means all applicable legislation relating to privacy or data protection in force from time to time, including any statute or statutory provision which amends, supplements, consolidates or replaces the same, and in particular, to the extent applicable and without limitation, the EU General Data Protection Regulation 2016/679 (“GDPR”), the GDPR as it forms part of the domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018, the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations (EC Directive) Regulations 2003 (SI 2003/2426) and in the event of any inconsistency between the GDPR and the UK GDPR, the UK GDPR shall apply. The terms “personal data”, “controller", "processor" and “process” (and its derivatives) shall have the meanings given to them in the Data Protection Legislation.
1.2 Each party shall comply with its obligations under Data Protection Legislation in respect of the End-User personal data processed by it in connection with the Agreement and the Transaction Services and Additional Services ("Personal Data") and shall not perform any obligation under this Agreement in such a way as to cause the other Party to breach any of its obligations under the Data Protection Legislation.
1.3 ALS or any ALS affiliate shall act as a processor of the Customer in respect of the End-User Personal Data. Annex 1 to this Appendix B sets out the scope of the processing carried out by ALS.
1.4 Where acting as a processor of the Personal Data, ALS or any ALS affiliate shall:
1.4.1 only process Personal Data:
(a) to the extent necessary to provide the Transaction Services and Additional Services;
(b) in accordance with the specific instructions of the Customer (save to the extent, in the opinion of ALS, such instructions infringe the Data Protection Legislation, in which case ALS shall notify the Customer and should ALS suffer any losses in following such instructions of the Customer in processing the Personal Data, the Customer agrees to hold ALS harmless from all losses, liabilities, claims and expenses); or
(c) as required by any competent authority or applicable law;
1.4.2 implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk relating to its processing of the Personal Data;
1.4.3 keep, and procure that its partners, employees and agents keep, Personal Data confidential in accordance with ALS’s confidentiality obligations contained in clause 10 of the Agreement (Confidential Information);
1.4.4 notify the Customer without undue delay, and provide reasonable cooperation after becoming aware of a personal data breach relating to Personal Data in ALS’s possession or control;
1.4.5 provide reasonable cooperation and assistance to the Customer in relation to any request by a data subject to have access to Personal Data held about them or in relation to a reasonable request, allegation or complaint by a competent authority or data subject, including notifying the Customer in writing without undue delay of receipt of any request (save to the extent prevented from doing so by applicable law);
1.4.6 be entitled to recover any reasonable costs incurred in assisting the Customer in meeting its obligations under the Data Protection Legislation;
1.4.7 at the reasonable request of the Customer, delete or return all Personal Data to the Customer on termination or expiry of the Agreement.
1.5 To the extent required by Data Protection Legislation, ALS shall maintain a record of its processing activities and provide such cooperation and information to the Customer as is reasonably necessary for the Customer to demonstrate compliance with Data Protection Legislation. Such cooperation shall include permitting the Customer, at the Customer's sole cost and expense, to audit ALS's compliance with this Appendix 1.
1.6 The Customer authorises ALS to use any subcontractor, including any ALS affiliate, to process Personal Data as a subprocessor of ALS provided that ALS shall ensure that (a) such processing is subject to a written contract or other legal act with such sub-processor containing data protection obligations no less onerous than those set out in this Appendix B; and (b) ALS shall remain liable for the acts and omission of any such sub-processor with respect to the processing of Personal Data.
1.7 ALS shall be entitled to process or transfer Personal Data to any jurisdiction including a jurisdiction outside the European Economic Area ("EEA") including to any subcontractor, provided that such transfer is permissible under Data Protection Legislation.
1.8 The Customer shall ensure that:
1.8.1 it complies with Data Protection Legislation in relation to any of its processing of Personal Data for direct marketing purposes;
1.8.2 any consents relied upon for its direct marketing activities are sufficient for the purposes of Data Protection Legislation; and
1.18.3 prior to undertaking any directing marketing activities it verifies that any consents collected by ALS on the Customers behalf are up to date and have not been withdrawn.
1.9 The parties acknowledge and agree that it is the Customer's responsibility to ensure that all of its processing of Personal Data (including for direct marketing purposes) is undertaken in accordance with Data Protection Legislation and that ALS is not responsible for ensuring the lawfulness of any activities (including direct marketing activities) undertaken by the Customer in relation to the Personal Data.
This Annex 1 includes certain details of the Processing of End User Personal Data on behalf of the Customer as required by Article 28(3) GDPR.
1 Subject matter, nature and purpose of processing: In connection with the provision of laundry Services to End-Users.
2 Duration: for the duration of the Contract;
3 Types of Personal Data: Email addresses, telephone numbers, names, payment details.
4 Categories of data subjects: End-Users of Customer’s laundry services.
5 The obligations and rights of the Customer are set out in the Contract.