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Licensing Agreement

Modern Retail End-User License Agreement

www.modernretail.com

THIS AGREEMENT GOVERNS YOUR USE OF OUR SERVICES.

BY PLACING AN ORDER ON OUR WEBSITE FOR OUR SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" WILL REFER TO ENTITY. IF YOU DO NOT HAVE AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

1.0 Definitions

Agreement” means this Subscription Agreement.

Documentation” means any documentation made available by Modern Retail relating to the Service, as updated from time to time.

Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. “

Non-Modern Retail Application” means a Web-based, mobile, offline or other software application functionality that is provided by You or a third party and interoperates with the Service, including, for example, an application that is developed by or for You.

Order” means an online order specifying the Services to be provided under this Agreement that is entered into between You and Us.

Services” means the Software products and services that are ordered by You under an Order, and made available online by Us, including associated Modern Retail Software, as described in the Documentation. “Services” exclude Non-Modern Retail Applications.

Software” means any computer programming code in object code or source code form, its documentation, and any enhancements, updates, or upgrades thereof. “

User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription, and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.

We,” “Us” or “Our” means the Modern Retail company.

You” or “Your” means the company or other legal entity for which you are accepting this Agreement.

Your Data” means electronic data and information submitted by or for You to the Service.

2.0 Our Responsibilities

2.1 Provision of Services. We will (a) make the Services available to You pursuant to this Agreement, (b) provide applicable standard support for the Services to You at no additional charge, (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Modern Retail Application, or denial of service attack.

2.2 Protection of Your Data. We will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law (Compelled Disclosure) below, or (c) as You expressly permit in writing. You acknowledge and understand that the Service is not designed to process or store any information subject to PCI compliance.

3.0 USE OF SERVICES AND CONTENT

3.1 Subscriptions. The Services are purchased as a month-to-month subscription using a Software as a Service model.

3.2 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any unauthorized access or use, (d) use Services only in accordance with this Agreement, and Documentation, and applicable laws and government regulations, and (e) comply with terms of service of any Non-Modern Retail Applications with which You use Services. You will not (a) make any Service available to, or use the Service for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service or Non-Modern Retail Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Modern Retail Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, or the Documentation, (h) copy the Service or any part, feature, function or user interface thereof, (i) access the Service in order to build a competitive product or service or to benchmark with a Non-Modern Retail product or service, or (j) reverse engineer the Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, or Documentation, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy any violation or threat prior to suspension.

3.3 Non-Modern Retail Applications and Your Data. If You choose to use a Non-Modern Retail Application with the Service, You grant Us permission to allow the Non-Modern Retail Application and its provider to access Your Data as required for the interoperation of that Non-Modern Retail Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by the Non-Modern Retail Application or its provider.

3.4 Integration with Non-Modern Retail Applications. The Service contains features designed to interoperate with Non-Modern Retail Applications. To use these features, You may be required to obtain access to the Non-Modern Retail Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-Modern Retail Applications.

4.0 FEES AND PAYMENT FOR SERVICES

4.1 Fees. You will pay all fees specified in an Order. Fees are based on Service subscriptions purchased and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable.

4.2 Invoicing and Payment. You will provide Us with valid and updated credit card information. You authorize Us to charge Your credit card for the Service listed in the Order for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.1 (Term of Agreement). All charges will be made monthly in advance.

4.3 Suspension of Service. If any amount owing by You under this Agreement for Our services is 10 or more days overdue, We may, without limiting Our other rights and remedies, suspend Our services to You until the overdue amounts are paid in full.

4.4 Payment Disputes. We will not exercise Our rights under Section 4.3 (Suspension of Service) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.5 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section, We will charge the amount against your credit card unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. We are solely responsible for taxes assessable against Us based on Our income, property and employees.

4.6 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

5.0 PROPRIETARY RIGHTS AND LICENSES

5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Service, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. To the extent We provide software to you as part of the Service Your use of the Software is limited to use of only one copy of the Software on one installation, solely for your own personal or business use, and subject to all other terms of this Agreement. A separate Order must be purchased for each new Software installation. Any distribution of the Software without Our consent, including noncommercial distribution, is regarded as violation of this Agreement and is subject to Our remedies under the law.

5.2 License to Use Feedback. You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our services.

5.3 License to Host Your Data and Applications. You grant Us and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-Modern Retail Applications and program code created by or for You using a Service or for use by You with the Service, as reasonably necessary for Us to provide the Service in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, or Non-Modern Retail Application.

6.0 CONFIDENTIALITY

6.1 Definition of Confidential Information.Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Service; and Confidential Information of each party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order to any third party other than its legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its legal counsel or accountants will remain responsible for such legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order to a subcontractor or Non-Modern Retail Application provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth in this Agreement.

6.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

7.0 REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

7.2 Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Order and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Service, and (c) the Service will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. WITHOUT LIMITING THE FOREGOING, MODERN RETAIL DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

8.0 MUTUAL INDEMNIFICATION

8.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the Service infringes or misappropriates any third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to the Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 15 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your Data, a Non-Modern Retail Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order.

8.2 Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Service in violation of the Agreement, the Documentation, Order or applicable law (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.

8.3 Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.

9.0 LIMITATION OF LIABILITY

9.1 Limitation of Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE THREE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

9.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

10.0 TERM AND TERMINATION

10.1 Term of Agreement. This Agreement commences on the date You first place an Order for the Service and continues on a month to month basis unless it has been terminated.

10.2 Termination. A party may terminate this Agreement for cause (i) upon 15 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if 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.

10.3 Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 10.2 (Termination), We will refund You any prepaid fees covering the remainder of the term of any affected Order after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 10.2, You will pay any unpaid fees covering the remainder of the term of any Order. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

10.4 Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any of Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems, or control, unless legally prohibited.

11.0 GENERAL PROVISIONS

11.1 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Customer Data Portability and Deletion,” and “General Provisions” will survive any termination or expiration of this Agreement.

11.2 Agreement to Governing Law and Jurisdiction. This Agreement will be governed by the Laws od the State of Illinois without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of Illinois courts.

11.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any other of Your order documentation (excluding Order) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) this Agreement, and (3) the Documentation.

11.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.5 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

11.7 Customer List. We reserve the right to publish a selected list of users of our Service.

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