Master Subscription Agreement (MSA)

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR USAGE OF THE REVERSELOGIX PLATFORM AND THE PROVISION OF PROFESSIONAL SERVICES BETWEEN YOU AND REVERSELOGIX CORP. (“REVERSELOGIX”), EXCEPT AS STATED OTHERWISE BETWEEN YOU AND COMPANY IN AN EXECUTED AGREEMENT THAT IS DATED AFTER THE DATE HEREOF FOR SPECIFIC SERVICES NOT CONTEMPLATED HEREIN, SUCH AS IN A STATEMENT OF WORK. IF YOU PURCHASE REVERSELOGIX OR PROFESSIONAL SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF REVERSELOGIX AND PROFESSIONAL SERVICES.

THIS AGREEMENT SHALL BECOME EFFECTIVE BY YOU ACCEPTING (“ACCEPTING”) THIS AGREEMENT ON THE DATE HEREOF, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY EXECUTING THIS AGREEMENT. BY YOU ACCEPTING THIS AGREEMENT, 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 SUCH ENTITY AND ITS AFFILIATES TO ALL OF THE PROVISIONS, INCLUDING ANY RESTRICTIVE CONVENTANTS, HEREIN, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS HEREIN, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE REVERSELOGIX.

You may not access ReverseLogix if You are Our direct competitor, except with Our prior written consent. You may only use ReverseLogix for the sole purpose of optimizing returns, or reverse logistics, for your own customers, and for no other purpose.  For the avoidance of doubt, You may not access ReverseLogix for purposes of monitoring Our availability, capacity, features, performance, functionality, or for any other benchmarking or competitive purposes.  For the avoidance of doubt, You are entering into this Agreement with Us without any expectation of creating a relationship as partners, joint ventures, agent, employee, representative, or any other possible relationship other than that described herein

1.0 DEFINITIONS

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Order Form” means the ordering documents (pricing proposal) for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.

“Professional Services” means the professional services as described in Section 12 and the applicable Order Form that are ordered by You as part of this Agreement.

“Users” means individuals who are authorized by You to use the ReverseLogix and who have been supplied user identifications and passwords. Users may include but are not limited to Your employees, consultants, contractors and agents; or customers and other third parties with which You transact business.

“Stores” means any physical location that have Your products for sale, includes 3^rd party retailers, partners etc.

“Units” means any physical item being processed through each module in the ReverseLogix system; units are counted once for each module

“We,” “Us” or “Our” means ReverseLogix Corp. and its product ReverseLogix as described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).

“You” or “Your” or “Client” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

“Your Data” means all electronic data or information submitted by You to the ReverseLogix Platform.

“Derivative Data” has the meaning as set forth in Section 6.5.

2.0 REVERSELOGIX PLATFORM

2.1. Provision of ReverseLogix Platform. We shall make the ReverseLogix platform available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

2.2. Subscriptions. Subscriptions shall be based upon the definitions and license parameters as set forth in the applicable Order Form.

3.0 USE OF THE REVERSELOGIX PLATFORM

3.1 Our Responsibilities. We shall: (i) provide to You Standard support for ReverseLogix at no additional charge, and/or Enhanced support if purchased separately, (ii) use commercially reasonable efforts to make ReverseLogix available 24 hours a day, 7 days a week, except for: (a) planned downtime, of which We shall give notice in accordance with the requirements of the applicable ReverseLogix Support Terms (Standard or Enhanced) via ReverseLogix and which We shall schedule to the extent practicable during the weekend hours from 8:00 p.m. Central time Friday to 5:00 a.m. Central time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), pandemics, or Internet service provider failures or delays, and (iii) provide the ReverseLogix Platform and related services only in accordance with applicable laws and government regulations.

3.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the ReverseLogix Platform , and notify Us promptly of any such unauthorized access or use, (iv) use ReverseLogix only in accordance with Our guidelines and applicable laws and government regulations, and (v) comply in all respects with all applicable Third Party TOS. You shall not (a) make ReverseLogix available to anyone other than Users, (b) sell, resell, rent or lease ReverseLogix  (c) use ReverseLogix 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 ReverseLogix to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of  ReverseLogix or third-party data contained therein, or (f) attempt to gain unauthorized access to ReverseLogix or Our related systems or networks. If You are in material breach of Your obligations as set forth in this Section, in addition to any of Our other rights or remedies, We reserve the right to immediately suspend Your use of ReverseLogix provided to You without liability to You, until such breach is cured.

3.3. Usage and Hosting Limitations. Use of ReverseLogix may be subject to other third-party limitations, such as Microsoft Azure cloud hosting, (which has third-party terms of service that can be located at http://www.windowsazure.com/en-us/support/legal/sla/) which are not subject to Our control.  Any such limitations are specified in the applicable third-party Terms of Service.

3.4. Hosting. As part of license fees, basic hosting is provided and includes the following:  15 GB of cloud storage and once daily backups. Any additional storage, VM instances, bandwidth, compute to be billed and quoted separately per Microsoft Azure hosting rates via order form.  Per the purchased license, a single hosted instance is included.  Additional instances and storage are available and will be billed and quoted separately.

4.0 SUPPORT

Standard support- Includes 24/7 email support with a 48-hour response time for non-critical or system down issues. All customizations done are covered for up to six months for any bugs fixes. Pursuant to the Service Level Agreement between Us and You, the response to property reported bugs in writing and with sufficient documentation (including screenshots and necessary browser/system info where the bug occurred) is 72 hours under standard support, email only. A resolution time is provided once issue is uncovered and work begins within 72 hours (during normal working hours (9AM – 5PM EST Monday – Friday)). For system down issues wherein the ReverseLogix portal is inaccessible and impedes consumer returns, We will work to address and fix the issue within 4 hours.

Premium support– The premium support and maintenance program provides the same day response (within 4 hours) and resolution to start right away. Access is via phone and email with a dedicated account manager. Premium support covers costs of ReverseLogix integration work performed during customer systems changes. Cost of this program is 30% per month of total annual subscription license costs or as per order form (activation of this program to be done via order form), unless already included as part of Subscription license indicated on pricing section of agreement.

5.0 FEES AND PAYMENT

5.1. Fees. You shall pay all fees specified in all Order Forms hereunder for ReverseLogix as set forth in such Order Form. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on ReverseLogix services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of subscription licenses purchased cannot be decreased during the relevant subscription term stated on the Order Form. Subscription fees are based on annual periods that begin on the subscription start date and thereafter on each annual anniversary thereof, as set forth in the Order Form; therefore, fees for subscriptions added in the middle of a period will be charged for that full period. Unless as otherwise specified in the Order Form, overage in units will be billed at the averaged per unit cost of the selected annual subscription. For the avoidance of doubt, the annual period that the Subscription fee is based on will begin upon the effective date of this Agreement.

5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us.  If You provide credit card information to Us, You authorize Us to charge such credit card for all ReverseLogix services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11 (Term and Termination).  Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoicing will commence at time of Contract signature for annual subscription license fees and total implementation fees. Fees are due net-30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information.

5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).

5.4. Suspension of ReverseLogix Service and Acceleration. If any amount owing by You under this or any other agreement is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Your use of ReverseLogix until such amounts are paid in full.

5.5. Payment Disputes. We shall not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.

5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Sales Tax Compliance: ReverseLogix will charge all appropriate sales tax due on invoices throughout the term of this agreement.  In the event that ReverseLogix is not registered in your billing states, the responsibility will pass to your Company for all accrual and payment of use tax. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

6.0 PROPRIETARY RIGHTS

6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to ReverseLogix, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You acknowledge that the ReverseLogix intellectual property provided by Us pursuant to this Agreement are owned solely by Us and made available to You pursuant to license in accordance with the terms and conditions of this Agreement, and such access to the ReverseLogix intellectual property do not constitute a Deliverable under this Agreement, as defined in Section 12.5.2 below. We shall retain title to any deliverables under any Order Form (the “Deliverables”).  We shall also retain title to all intellectual property, trade secrets, ideas and concepts, processes, methodologies, templates, techniques and know-how conceived, developed or reduced to practice by Us prior to or independent of its performance of the Professional Services (collectively, ReverseLogix Technology”). Except as provided otherwise in the applicable Order Form, We hereby grant to You, a non-exclusive, worldwide, royalty free, license to use the Deliverables and any ReverseLogix Technology which is embodied in the Deliverables in connection with your use of the Services during the Term (excluding any ReverseLogix Technology licensed to You pursuant to a separate license agreement, which shall at all times remain subject to the terms and conditions of such agreement). Except as provided for in these terms and conditions, no rights or implied licenses in the ReverseLogix Technology are granted to You. We shall not be restricted in the manner We use the ReverseLogix Technology or any ideas, concepts, know-how, techniques, or procedures acquired or used by Us in the performance of the Professional Services; provided, however that We shall only use Your Materials and or Your Data to perform the Professional Services for You.

6.2. Restrictions. You shall not (i) permit any third party to access the ReverseLogix intellectual property, services, or platform or any other related benefit except as permitted herein or in an Order Form, (ii) create derivate works based on ReverseLogix, (iii) copy, frame or mirror any part or content of ReverseLogix, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer ReverseLogix, or (v) access ReverseLogix in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of ReverseLogix.

6.3. Ownership of Your Data and Materials. As between Us and You, You exclusively own all rights, title, and interest in and to all Your Data, though you grant us a royalty-free, worldwide, non-transferable license for the term hereof to use your Derivative Data pursuant to Section 6.5 herein, and or Your Materials, for the limited purpose of providing you with the ReverseLogix services and platform. You shall retain all right, title and interest in and to any pre-existing or other materials supplied by You to Us hereunder (collectively, “Your Materials”).

6.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into ReverseLogix any suggestions, enhancement requests, recommendations or other feedback provided by You or your Users, relating to the ReverseLogix service, platform, intellectual property, or any other asset, feature, or benefit.

6.5. Derivative Data. We shall not disclose, distribute, or otherwise disseminate or share with any third parties any reports, analyses or other derivative data (“Derivative Data”) created or received by You or any of Your Affiliates in connection with Your and Your Affiliates’ use of ReverseLogix. We will not assert any ownership of Derivative Data. You and Your Affiliates are entitled to access,  manipulate, re-manipulate, protect, use, copy, display and share with third parties any data or content collected from social media networks and also any Derivative Data created by You or any of Your Affiliates from such data or content; provided, however, that You will at all times comply with any applicable provisions set forth in the Third Party TOS regarding access and use of such data and content.  You acknowledge and agree that We may access and use Derivative Data solely for purposes of performing anonymous statistical analyses on an aggregated basis with other Derivative Data; provided that at no time will You be identified to any third parties as the source or creator of such Derivative data and such Derivative Data shall not in any way be identified a Derivative Data created by You.

6.6. Federal Government End Use Provisions. We provide ReverseLogix, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the ReverseLogix include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

6.7 Privacy. The parties represent, warrant and undertake to each other on a continuous basis that they will comply with all applicable anti-corruption and data protection legislation and regulations. The parties both recognize that You may, and We do process data both inside and outside of the United States, and We rely on legal mechanisms to lawfully transfer data across borders. Countries where We process data, such as the United States, potentially have less-protective laws than the privacy protections of a country where some of Your Users might be based. We are aware of July 16, 2020, ruling by the European Court of Justice and the September 8, 2020 opinion by the Swiss Federal Data Protection and Information Commissioner (FDPIC) invalidating the EU-US Privacy Shield Framework and the Swiss-US Privacy Shield Framework. We will continue to wait for guidance from the European Commission, Swiss FDPIC, and the US Government regarding how to best protect User data in the event of cross-border transfers. Although this decision by the CJEU invalidated the use of Privacy Shield, standard contractual clauses (SCC’s) remain in place, and We may transfer data from the EU, EEA and Switzerland using SCCs. The SCC’s published by the Commission Implementing Decision (EU) 2021/915 of 4 June 2021 on standard contractual clauses between controllers and processors under Article 28(7) of Regulation (EU) 2016/679 of the European Parliament and of the Council and Article 29(7) of Regulation (EU) 2018/1725 of the European Parliament and of the Council are hereby incorporated by reference into this Agreement and shall be interpreted according to the context of this Agreement.

6.8 Ownership Legend. You agree to reproduce the copyright notice and any other legend of ownership on any copies of the Deliverables made under the licenses granted in this Section.

7.0 CONFIDENTIALITY

7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential 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 shall include Your Data; Our Confidential Information shall include all information related to the ReverseLogix services or platform, and any other information that would be reasonably expected to be confidential; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, 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 (other than Your Data) shall 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, which Receiving Party can demonstrate, (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 without any reference to or reliance on Confidential Information disclosed by Disclosing Party.

7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

7.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide ReverseLogix services or access to the ReverseLogix platform, or prevent or address service or technical problems, or at Your request in connection with customer support matters.

7.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and commercially practicable) and reasonable assistance, at the Disclosing Party’s sole 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 such Confidential Information.

8.0 WARRANTIES AND DISCLAIMERS

8.1. Our Warranties. We warrant that (i) ReverseLogix shall perform materially in accordance with the features. The functionality of the ReverseLogix system will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below. We warrant that the Professional Services shall be performed in a professional and workman-like manner.  Except as expressly provided for in this Section, we hereby expressly disclaim any and all other representations, warranties, or conditions with respect to the Professional Services, whether express, implied, statutory, or otherwise, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose.

8.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9.0 MUTUAL INDEMNIFICATION

9.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (” Claim“) made or brought against You by a third party alleging that the use of ReverseLogix as permitted hereunder or any Deliverables provided under Professional Services infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded, after all available appeals have been exhausted, against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.

9.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party (a) alleging that Your Data, or Your use of ReverseLogix in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or (b) in any other way relating to or arising from Your Data or a breach of Your Responsibilities set forth in Section 3.2 and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Us of all liability), and (c) provide to You all reasonable assistance, at Your expense.

9.3. Exclusive Remedy. This Section 9 (Mutual Indemnification) 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.

10.0 LIMITATION OF LIABILITY

10.1. Limitation of Liability. EXCEPT FOR (A) DAMAGES ARISING FROM A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7, OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $20,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR REVERSELOGIX AND PROFESSIONAL SERVICES).

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3 THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11.0 TERM AND TERMINATION

11.1. Term of Agreement. This Agreement commences on the date You Accept it and continues (a) until all User subscriptions for ReverseLogix granted in accordance with this Agreement have expired or been terminated and (b) for so long as an Order Form for Professional Services continues to be in effect.

11.2. Term of License (User and store access) Subscriptions. License subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all License subscriptions shall automatically renew for additional periods equal to three years at the list price in effect at the time of renewal unless You give Us notice of termination at least ninety (90) days prior to the end of the relevant Subscription Term.

11.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such 30-day 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.

11.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination and for Professional Services that are not delivered prior to the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all subscriptions under all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

11.5. Return of Your Data. Upon written request by You made within 30 days after the effective date of termination of a ReverseLogix subscription, We will make available to You for download a file of Your Data in comma-separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all Your Data in Our systems or otherwise in Our possession or under Our control. In the event, we retain any Data belonging to you (such as Data that is commercially impracticable to fully delete) shall remain subject to the confidentiality and non-use provisions herein for two years from the date after termination. Similarly, any of our Confidential Information that you retain after the date of termination of this Agreement shall continue to be subject to the confidentiality and non-use provisions herein for two years after the date of termination.

12.0 PROFESSIONAL SERVICES

The following Professional Services Terms and Conditions shall apply to any Professional Services purchased by You under the Agreement.

12.1 Expenses.  You will reimburse Us for our reasonable out-of-pocket expenses, including travel and living expenses, incurred in providing the Professional Services.

12.2 Invoices and Payment.  Invoicing and payment terms for all Professional Services performed under the Agreement are as follows:

-We shall invoice You for Professional Services in full prior to the start of work.

-You shall pay all invoices within thirty (30) days of the invoice date.

-Any work beyond the effort period per order form will be billed at the hourly rate.

12.3 Resources

12.3.1 Availability of Your Resources.  You will make available to Us certain of Your facilities, telecommunications support, records, data, computer resources, software programs, networks, personnel, business information and other relevant information as reasonably required by Us in the performance of any Professional Services hereunder or as specified on any applicable Order Form.  You shall ensure that competent personnel are available during normal working hours (9AM-5PM EST Monday-Friday) to provide information and other support to Us while providing Professional Services.

12.3.2 Compliance with Your Rules.  While on Your premises, We shall take reasonable measures to have Our personnel comply with Your rules and regulations regarding safety, security, and conduct, and shall at Your request immediately remove from the project anyone who is not following such rules and regulations.

12.4 Termination

12.4.1 Order Form Termination. Any Order Form for Professional Services may be terminated by either party in the event the other has failed to perform any obligation required to be performed under such Order Form or these terms and conditions as it relates to such Order Form, provided such failure is not corrected within thirty (30) days from receipt of written notice from the other party advising of such failure. You also may terminate any Order Form in its entirety or postpone or cancel scheduled work under an Order Form without cause on not less than fifteen (15) business days written notice (or such other period as is set forth in the Order Form). Any termination of an Order Form without cause shall not entitle you to a refund of any prepaid Professional Services fees.

12.4.2 Effect of Termination. You shall pay all undisputed amounts due for all Professional Services performed by Us under any terminated Order Form prior to the date of termination, and We shall deliver to You all Deliverables for which payment is made by You. In addition, if You terminate an Order Form in its entirety or postpone or cancel scheduled work under an Order Form without cause on less than fifteen (15) business days written notice (or such other period as is set forth in the Order Form), You shall pay such additional amounts for reallocation of Our resources as are necessary to cover Our resource costs during such period for any resources that We cannot reasonably reallocate to other projects.  Termination of any Order Form shall not relieve You of Your obligation to pay all charges that accrued prior to such termination. Upon termination or expiration of this Agreement or any Order Form, each party shall deliver to the other all copies of all applicable Confidential Information of the other party.

13.0 NOTICES, GOVERNING LAW AND JURISDICTION

13.1. Information:

13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal or courier delivery, (ii) upon delivery via mailing (confirmed receipt signature/return receipt requested), or (iii) the second business day after sending by confirmed facsimile. Notices to You shall be addressed to the person designated above, except in the case of billing-related notices, which shall be addressed to the relevant billing contact designated by You.

13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts set forth in Section 13.1 above.

13.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

14.0 GENERAL PROVISIONS

14.1. Compliance. Each party shall comply with the laws and regulations of the United States and other applicable jurisdictions in providing and using ReverseLogix services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving and (ii) You shall not permit Users to access or use ReverseLogix services in violation of any U.S. embargo, prohibition or restriction.

14.2. 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.

14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

14.4. Non-Solicitation.    Each party acknowledges and agrees that the employees of the other party who are involved in the design, configuration, or deployment of the agreed technology solution are a valuable asset to such party and are difficult to replace.  Accordingly, each party agrees that, during the term of any Order Form and for a period of one (1) year thereafter, neither party will offer employment or other engagement as an employee, independent contractor, or consultant to any employee of the other party who participated in or was involved with the design, configuration, or deployment of the technology solution. Notwithstanding the foregoing, either party may employ any person who (a) initially contacts such party without solicitation, directly or indirectly (other than as described in 14.4 (b)), by such party or (b) responds to any general advertisement of employment or engagement by such party or to any solicitation or inquiry from a recruiter retained by such party provided that such person is not specifically identified or targeted by such party for such solicitation or inquiry.

14.5. Non-Compete. You will not engage in any efforts to reverse engineer, disassemble or decompile any prototypes, software or other tangible objects provided to You by Us pursuant to this Agreement. For the avoidance of doubt, We may work with any party who you consider to be a competitor, as long as we do not disclose any of your Confidential Information to such person or entity and otherwise do not violate any other confidentiality, restrictive covenant, or non-use provision of this Agreement.

14.6. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

14.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

14.8. Attorney Fees. You shall pay on demand all Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment)

14.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination by You, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.10. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

14.11. Surviving Provisions. Section 5 (Fees and Payment), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Return of Your Data), 12.5 (Ownership), 12.6.2 (Effect of Termination), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.

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