1. Definitions. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
- “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Retailsphere Solution.
- “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Retailsphere Solution pursuant to Customer’s rights under this Agreement.
- “Retailsphere Solution” means the Retailsphere software-as-a-service applications identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface.
- “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
- “Documentation” means the technical materials provided by Retailsphere to Customer in hard copy or electronic form describing the use and operation of the Retailsphere Solution.
- “Error” means a reproducible failure of the Retailsphere Solution to substantially conform to the Documentation.
- “Error Corrections” means bug fixes or workarounds intended to correct Errors in the Retailsphere Solution.
- “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
- “Licensed Material” means results, reports, materials and documentation made available to Customer as part of the Services.
- “Metropolitan Area” means each separate distinct metropolitan area(s), as defined according the U.S. Census Bureau standards, as set forth in an Order Form.
- “Order Form” means an order form that is based on the template in Exhibit A, is signed by both parties and references this Agreement.
- “Services” means any services provided by Retailsphere to Customer under this Agreement as set forth in an Order Form.
- “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Retailsphere as required for use of the Retailsphere Solution. The current requirements are described in the Documentation.
2. Provision of Services
- Access. Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), Retailsphere will provide Customer with access to the Retailsphere Solution for the number of users set forth in the Order Form for the Metropolitan Areas set forth on an Order Form. On or as soon as reasonably practicable after the Effective Date Retailsphere will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Retailsphere Solution in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Retailsphere Solution, and notify Retailsphere promptly of any such unauthorized use known to Customer.
- Support Services. Subject to the terms and conditions of this Agreement, Retailsphere will exercise commercially reasonable efforts to (a) provide support for the use of the Retailsphere Solution to Customer, and (b) keep the Retailsphere Solution operational and available to Customer, in each case in accordance with its standard policies and procedures.
- Hosting. Retailsphere will, at its own expense, provide for the hosting of the Retailsphere Solution, provided that nothing herein will be construed to require Retailsphere to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Retailsphere Solution from the Internet.
3. Intellectual Property
- License Grant. Subject to the terms and conditions of this Agreement, Retailsphere grants to Customer a non-exclusive, non-transferable (except as permitted under Section 12.5) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the Retailsphere Solution and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Retailsphere Solution. Customer may permit any Authorized Users to access and use the features and functions of the Retailsphere Solution as contemplated by this Agreement.
- Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Retailsphere Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Retailsphere Solution, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Retailsphere Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Retailsphere Solution, except as permitted by law; (e) interfere in any manner with the operation of the Retailsphere Solution or the hardware and network used to operate the Retailsphere Solution; (f) modify, copy or make derivative works based on any part of the Retailsphere Solution or Documentation; (g) access or use the Retailsphere Solution to build a similar or competitive product or service; (h) attempt to access the Retailsphere Solution through any unapproved interface; or (i) otherwise use the Retailsphere Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement, including, but not limited to, accessing Metropolitan Areas that are not set forth in an Order Form. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Retailsphere or its licensors on the Licensed Material or any copies thereof.
- Ownership. The Retailsphere Solution, Licensed Materials and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Retailsphere and its suppliers. All rights in and to the Retailsphere Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Retailsphere and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Retailsphere Solution, Documentation, or any part thereof.
- License to Licensed Material. Subject to the terms and conditions of this Agreement, Retailsphere grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 12.5), non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.
- Open Source Software. Certain items of software may be provided to Customer with the Retailsphere Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 or 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Retailsphere makes such Open Source Software, and Retailsphere’s modifications to that Open Source Software, available by written request at the notice address specified below.
- Feedback. Customer hereby grants to Retailsphere a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Retailsphere will not identify Customer as the source of any such feedback.
4. Fees and Expenses; Payments
- Fees. In consideration for the access rights granted to Customer and the Services performed by Retailsphere under this Agreement, Customer will pay to Retailsphere the Fees. Except as otherwise provided in the Order Form, all Fees are billed at the end of the month due and payable within thirty (30) days of the date of the invoice. Retailsphere reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current term. Retailsphere will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided Retailsphere has furnished such documentation for authorized expenses as Client may reasonably request. Retailsphere reserves the right (in addition to any other rights or remedies Retailsphere may have) to discontinue the Retailsphere Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
- Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Retailsphere’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Retailsphere Solution to Customer. Customer will make all payments of Fees to Retailsphere free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Retailsphere will be Customer’s sole responsibility, and Customer will provide Retailsphere with official receipts issued by the appropriate taxing authority, or such other evidence as the Retailsphere may reasonably request, to establish that such taxes have been paid.
- Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5. Customer Content and Responsibilities
- License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Retailsphere to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Retailsphere to use the Customer Content submitted by or on behalf of Clients for the purposes set forth in this Agreement. Customer grants Retailsphere a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services, and (b) use the Customer Content in an aggregated and anonymized form to: (i) improve the Services and Retailsphere’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Retailsphere in this Agreement are reserved by Customer.
- Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Retailsphere’s system or data; and (e) otherwise violate the rights of a third party. Retailsphere is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Retailsphere Solution contrary to or in violation of the representations and warranties of Customer in this Section 5.2 constitutes unauthorized and improper use of the Retailsphere Solution.
- Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Retailsphere Solution. Customer will have the ability to export Customer Content out of the Retailsphere Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
6. Warranties and Disclaimers
- Limited Warranty. Retailsphere represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. The foregoing warranty will not apply if the cause of the breach of the warranty is due to (a) any use of the Retailsphere Solution not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Retailsphere Solution in combination with other products, equipment, software or data not supplied by Retailsphere; or (c) any modification of the Retailsphere Solution by any person other than Retailsphere or its authorized agents. Provided that Customer notifies Retailsphere in writing of any breach of the foregoing warranty during the Term, Retailsphere will, as Customer’s sole and exclusive remedy, provide the support described in Section 2.2.
- Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Services, LICENSED MATERIAL AND Documentation ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE COMPANY SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
7. Limitation of Liability
- Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY customer TO COMPANY DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL Retailsphere’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Retailsphere.
- Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Retailsphere). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
- Exceptions. The confidentiality obligations set forth in Section 9.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- By Retailsphere. Retailsphere will defend at its expense any suit brought against Customer by a third party and will pay any settlement Retailsphere makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Retailsphere Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Retailsphere Solution becomes, or in Retailsphere’s opinion is likely to become, the subject of a claim of infringement, Retailsphere may, at Retailsphere’s option: (a) procure for Customer the right to continue using the Retailsphere Solution; (b) replace the Retailsphere Solution with non-infringing software or services which do not materially impair the functionality of the Retailsphere Solution; (c) modify the Retailsphere Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Retailsphere Solution and Documentation. Notwithstanding the foregoing, Retailsphere will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon (i) any use of the Retailsphere Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Retailsphere Solution in combination with other products, equipment, software or data not supplied by Retailsphere; or (iii) any modification of the Retailsphere Solution by any person other than Retailsphere or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 9.1 states the sole and exclusive remedy of Customer and the entire liability of Retailsphere, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
- By Customer. Customer will defend at its expense any suit brought against Retailsphere, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach or alleged breach of Sections 5.2. This Section 9.2 states the sole and exclusive remedy of Retailsphere and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
- Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10. Term And Termination
- Term. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term.
- Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 9; and (c) any amounts owed to Retailsphere under this Agreement will become immediately due and payable. Sections 1, 3.2, 3.3, 3.5, 4, 7.2, 8, 9, 10.4, and 12 will survive expiration or termination of this Agreement for any reason.
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New Castle County, Delaware for any lawsuit filed there against Customer by Retailsphere arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Retailsphere, or any products utilizing such data, in violation of the United States export laws or regulations.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
- Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Licensed Material and Documentation.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- Independent Contractors. Customer’s relationship to Retailsphere is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Retailsphere.
- Notices. All notices required or permitted under this agreement must be delivered in writing, if to Retailsphere, by emailing ClientSuccess@theMSDC.com and if to Customer by emailing the Customer Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Retailsphere.