Master Agreement for Retail Stores

Last updated November, 25, 2024

This Master Agreement (“Master Agreement”), dated as of the registration date ( the “Effective Date”), sets forth the terms governing the relationship between the Customer set forth below and Locally.com, Inc., a Delaware corporation, doing business as Locally.com (the “Service Provider”) relating to the use and provision of the Service Provider Services (as such term is defined in the Recitals herein)pursuant to the terms and conditions of this Agreement (as such term is defined herein).

RECITALS

A. The Service Provider’s Portal, Referral Services and any Ancillary Services and any Website tools, if applicable (as such terms are defined herein) are hereinafter collectively referred to as the “Service Provider Services”.

B. This “Agreement” collectively means and includes

     (i) this Master Agreement, including without limitation all of the terms and conditions for the provision of the Service Provider Services as set forth in Exhibit A attached hereto and which is incorporated herein by this reference;  and

     (ii) the Statement of Work and any addendum thereto, which are incorporated herein by this reference. 

NOW THEREFORE, for good and valuable consideration, the parties agree as follows:

1.     Definitions.  Certain capitalized terms, if not otherwise defined on the Statement of Work to which this Agreement is attached, shall have the meanings set forth below or in the body of this Agreement. 

     (a) “Affiliate” means any company, which directly or indirectly controls, is controlled by or is under common control with either Party.

     (b) “Aggregate/Anonymous Data” has the meaning set forth in Section 8 herein.

     (c) “Agreement” has the meaning set forth above in the Recitals above.

     (d) “Ancillary Services” has the meaning set forth in Section 3 herein.

   (e) “Confidential Information” means any material or information relating to a Party’s research, development, products, product plans, services, customers, customer lists, software, developments, inventions, processes, formulas, technologies, designs, finances, or other business information (including without limitation, information and tangible and intangible property which may relate to the aforementioned) or trade secrets that a disclosing Party treats as proprietary or confidential and whether or not marked or otherwise identified by such Party as being confidential.  Without limiting the foregoing, Confidential Information of Customer shall include the Customer Data, and Confidential Information of the Service Provider shall include its Portal and its Aggregate/Anonymous Data.  Confidential Information shall not include information that: (i) was generally available to the public at the time it was received from the disclosing party; (ii) becomes publicly known through no fault of the receiving party subsequent to the time of the disclosing party's communication thereof to the receiving party; (iii) can be demonstrated to have been known to the receiving party, without restriction, at the time of disclosure by the disclosing party; (iv) is developed by the receiving party independently of and without reference to any of the disclosing party's Confidential Information or other information that the disclosing party disclosed to any third party pursuant to an obligation of confidentiality; or (v) is disclosed in response to an order or requirement of a court, administrative agency or other governmental body, provided, however, that (x) the receiving party must provide prompt advance notice of the proposed disclosure to the disclosing party, and (y) any Confidential Information so disclosed shall otherwise remain subject to the provisions of Section 12.

     (f) “Customer Data” shall collectively mean any of the following data, information, material or other content (collectively “Data”)

          (i) any Data that the Customer or any of its Customer Users may, directly or indirectly, provide or make available to Service Provider in the course of this Agreement, or may otherwise be uploaded or used as part of the provision of the Service Provider’s Services, including without limitation:

                    (x) any of the Customer’s trademarks, service marks, logos, product names, product descriptions, product specifications, product inventory data, location data, other product information, photos, images, graphics, videos, audio files, code, other information, other data, material, or any other written content in any format whatsoever; and/or

                    (y) any other Data related to the Customer Goods or any of its locations, including without limitation:

                           (a) product names, product descriptions, product specifications, product inventory data, location data, other any other product information or location information ; or  

                            (b) any information related to the purchase, procurement, delivery of pickup of  Customer Goods by End Users; and/or

          (ii) any other Data that the Customer or its Customer Users may make available to Service Provider as part of the Customer’s use of any of the Service Provider Services.

For clarity and the avoidance of doubt, “Customer Data” does not include any Aggregate/Anonymous Data, any End User Data, or any End User Inputs (as such terms are defined herein).

     (g) “Customer Goods” shall mean any the Customer’s products or goods being promoted or offered to, or purchased by, any End Users through or by way of any of the Service Provider Services.

     (h) “Customer Users” shall mean employees and independent contractors of Customer authorized by Customer to use the Customer’s account to access and use (on behalf of the Customer) the Portal or any other Service Provider Services.

     (i) “Documentation” shall mean Service Provider’s user manuals and/or related documentation generally made available to users of any of the Service Provider Services (whether online or printed). 

     (j) “End Users” shall mean all purchasers, end users, or any other consumers who: (x) obtain information or data about the Customer Goods from or through the Portal or any other Service Provider Services; (y) are referred, directed, or channeled to the Customer from or through the Portal or any other Service Provider Services; and/or (z) arrange for the purchase or delivery of and/or purchase any of the Customer Goods from or through the Portal or any other Service Provider Services.

     (k) “End User Data” shall collectively mean any data, information, material or other content about any End User that may directly or indirectly provided or make available to Service Provider in the course of this Agreement, or may otherwise be upload, used, or derived as part of the End User’s access or use of any of the Service Provider Services.

     (l) “End User Inputs” shall mean any data, information, materials or other content given to Service Provider by Customer’s End Users or otherwise collected by Service Provider from Customer’s End User, including without limitation any data, information or material (such as, but not limited to, any personal information about End Users) that is made available through, or which End Users provide via use of, the Service Provider Services.  

     (m) “Intellectual Property” means all copyrights, trademarks, trade secrets, patents, mask works, and other intellectual property recognized in any jurisdiction worldwide, including all applications and registrations with respect thereto.

     (n) “Laws” shall mean applicable international, national, state, local, or other governmental authority laws, regulations, ordinances, orders, standards (including but not limited to payment card industry standards), rules and other requirements that may now or hereafter govern performance of a Party pursuant to this Agreement.

     (o) “Portal” or “Service Provider’s Portal” has the meaning set forth in Section 5 herein.

     (p) “Referral Services” means the core scope of services to be provided by Service Provider to Customer as described in Exhibit A attached hereto and by this reference incorporate herein, such core services to be provided pursuant to the terms and conditions of the Statement of Work. 

     (q) “Service Fee(s)” has the meaning set forth in Section 10 herein.

     (r) “Service Provider Services” has the meaning set forth in the Recitals above.

     (s) “Website Tools” means any of the Service Providers’ tools that are installed on the Customer’s website. 

     (t) “ Statement of Work” shall mean the Service Provider’s Statement of Work document (attached hereto as Exhibit A and by this reference incorporated herein) setting forth the specific scope of Service Provider Services to be provided by Service Provider to Customer under this Agreement.   

     (u) “Term” shall collectively mean the Initial Term set forth on the Statement of Work and any Renewal Term thereafter as mutually agreed by the Parties as set forth in Section 4.

2.     General Provision of Service Provider Services.    Service Provider agrees to provide, and Customer agrees to accept (and pay any Fees for the same) the Service Provider Services as described in and pursuant to the terms and conditions of the Statement of Work and this Agreement  The Customer agrees that its use of any of the Service Provider Services are solely for the purpose of marketing and selling Customer Goods to the End Users, and for no other purpose whatsoever.

3.     Ancillary Services and Additional Products and Any Website Tools.  Customer may request, and Service Provider may in its discretion agree to, provide; (i) certain ancillary services or additional products pursuant to a valid, executed Statement of Work in the form attached hereto as Exhibit “A” (and by this reference incorporated herein), outlining the specific scope of such ancillary services (“Ancillary Services”); and (ii) any Website Tools pursuant to a valid, executed Statement of Work in the form attached hereto as Exhibit “A”.

4.     Renewal Term.  Following expiration of the Initial Term, this Agreement will automatically revert to a month to month arrangement until either Party gives the other Party notice of termination as provided in Section 12(a).

5.     License.

     (a) Grant. Subject to Customer’s (and each Customer User’s) compliance with the terms and conditions of this Agreement and the applicable Statement of Work, the Service Provider grants to Customer and its authorized Customer’s Users a limited, non-exclusive, non-transferable, non-sublicenseable, non-assignable, personal license during only the Term to use and access the Portal solely for the Customer’s internal business purpose of monitoring  the marketing and sale of Customer Goods to End Users through the Service Provider Services, including but not limited to: (i) monitoring the delivery instructions for Customer Goods being sold to End Users pursuant to the Service Provider Services; (ii) monitoring the pick up location for End Users to pick up Customer Goods being sole to the End User pursuant to the Service Provider Services; and (ii)   access to analytics and reporting. (the “Grant”).

     (b)  Prohibited Uses. Customer agrees not to (and shall ensure that is Customer Users and End Users do not) use any part of the Portal or any other Service Provider Services for any purpose that is unlawful or prohibited by this Agreement. Customer shall not, and shall prohibit its Customer Users and End Users from  using any part of the Portal or any other Service Provider Services  in any manner that could damage, disable, or impair any Service Provider or subscriber server, or the network(s) connected to any Service Provider or subscriber server, or interfere with any other party's use and enjoyment of any part of the Portal or any other Service Provider Services.  Customer and Customer Users may not attempt to gain unauthorized access to any part of the Portal or any other Service Provider Services, other accounts, computer systems or networks connected to any Service Provider or subscriber server or to any part of the Portal or any other Service Provider Services, through hacking, password mining or any other means. Customer and Customer Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Portal or any other Service Provider Services.  Except as expressly set forth herein, Customer and its Customer Users and End Users may not:

          (i)     copy, reproduce, alter, modify, transmit, perform, create derivative works of, publish, sub-license, distribute, or circulate any part of the Portal or any other Service Provider Services, or any associated applications, tools or data thereof;

          (ii)     disassemble, decompile, or reverse engineer any of the software contained in or used for any part of the Portal or any other Service Provider Services, or use a robot, spider, or any similar device to copy or catalog any materials or information made available through any part of the Portal or any other Service Provider Services;

           (iii)     take any actions that may circumvent, disable, damage or impair any part of the Portal’s or any other Service Provider Services’ control or security systems, or allow or assist a third party to do so; (iv) transfer, sell, lease, syndicate, subsyndicate, lend, or use any part of the Portal or any other Service Provider Services  for cobranding, timesharing or service bureau purposes or otherwise for the benefit of a third party;

            (iv)     remove, deface, obscure, or alter any Intellectual Property or other proprietary notices or labels, including without limitation any of the Service Providers trademark or copyright notices;

            (v)     access, distribute, or use for any commercial purposes any part of the Portal or any other Service Provider Services or any services or materials available through the Portal or any other Service Provider Services ; or

           (vi)     use any data, information, material or content (including without limitation any Customer Data as defined herein) if the foregoing (in Service Provider’s determination): (1) is not owned by the Customer or they do not otherwise have the absolute right to use such data, information, material or content in association with the Portal or any other Service Provider Services; (2) infringes on any patent, trademark, trade secret, copyright, right of publicity, or any other intellectual property or proprietary right of any party; (3) is otherwise unlawful, libelous, defamatory, an invasive of privacy or of any publicity rights, harassing, threatening, abusive, inflammatory, obscene, or otherwise objectionable; or (4) would violate any other rights of any party, would constitute or encourage a criminal offense, or would otherwise violate or create liability under any laws, statutes, ordinances or regulations anywhere.

     (c) Suspension of Service. Service Provider may at any time suspend (or require that Customer suspend) the access of the Customer or any of its Customer Users to the Portal or any other Service Provider Services (in whole or in part ) and/or disable their Log-In Information in the event of violation of this Agreement or in the event of action by governmental authorities, or if Service Provider has a good faith reason to suspect any such Customer User is engaged in activities that violates this Agreement or applicable laws. Service Provider shall not be liable to the Customer or any of its Customer User for suspension of access to the Portal or any other Service Provider Services exercised pursuant to this Section 5(c).

6.     Account Registration.

     (a) Subject to any limitations in the Statement of Work Customer may supply access to Portal to an unlimited number of its authorized Customer Users. It is Customer’s responsibility and liability to manage these Customer User accounts. Customer will designate an account administrator who is responsible for approving additional Customer User accounts (“Customer Account Manager”). This Customer Account Manager can be changed by Customer either by Customer or by making a request through Service Provider.

     (b) Each Customer User will be provided a username and password, which enables the Customer Users to access the Portal and use any of the other Service Provider Services (the “Log-In Information”). Each Customer User must have a valid username and password for the purpose of accessing the Portal or any other Service Provider Services. Customer is responsible for keeping all Customer and Customer Users Log-In Information strictly confidential. Log-In Information may be used only by the assigned Customer User and may not be shared or transferred without your consent and control.  Customer agrees to notify Service Provider immediately of any unauthorized use of your Customer Users' Log-In Information or any other breach of security that you may become aware of. Service Provider will not be liable for any loss that Customer or a Customer User may incur as a result of someone else using Customer Users' passwords or accounts, either with or without the applicable Customer Users' knowledge. Subject to Customer’s responsibilities and liability regarding the actions of its Customer Users as set forth in this Agreement, End Users’ use of the Service Provider Services shall be governed by the Service Provider’s Privacy Policy as may be amended from time to time.

     (c) Customer agrees that all Customer Data that Customer provides during the term of this Agreement, including without limitation as part of the Customer’s account registration process, must be complete and accurate. Service Provider reserves the right to verify and/or validate all Customer Data submitted by Customer during the registration process or otherwise during the term of this Agreement.

     (d) The Customer Account Manager will be the party that receives, on behalf of the Customer, emails from Service Provider  associated with the Customer’s retail store and the related brands the Customer may carry, as well as any relevant Service Provider Services updates. The Customer may unsubscribe at any time.

     (e) Customer acknowledges and hereby grants the right to the Service Provider, where applicable, to register and utilize various third-party services in connection with delivering the services described herein.

7.      Additional Provisions Regarding Customer Data

     (a) The Customer must have (and must ensure that the applicable Customer User has) all necessary rights and/or permissions required regarding all Customer Data provided or made available by Customer or its Customer Users for inclusion or use on the Portal or through any other Service Provider Service. All copyrights to any Customer Content shall be retained by the Customer and/or the Customer User who uploaded such Customer Data. Customer Content may only be uploaded to the Portal in accordance with the upload procedures as set forth on such Portal.

     (b) Customers who are retailers are permitted to publish their proprietary Customer Data from our backend control interface to the public areas of the Portal and the Service Provider’s powered tools on brand sites. Customer Data published to the public areas of the Portal  (referred to hereinafter as “Published Content”) shall be publicly visible. Service Provider shall not be liable for Customer’s or its Customer User’s failure to obtain such permission or any corresponding breach of security with regard to any such Published Content. For clarity, if a Customer is granted the right to publish any Published Content, the Customer hereby acknowledges and agrees that the Customer shall only publish or otherwise use Customer Data (including without limitation Published Content) for which the Customer either owns or has the required Intellectual Property rights necessary for such use. Service Provider shall not be liable for any use of any Published Content or any other Customer Date which Customer either does not own or have the Intellectual Property Rights necessary for such use.

     (c)  Customer hereby represents, warrants, and covenants that:

(i) the Customer is the sole owner of all of the Intellectual Property Rights in and to, or otherwise has all Intellectual Property Rights necessary all use of, all Customer Data, including without limitation all Published Content; 

(ii) the Customer is solely responsibility and liable for all uses of its Customer Data, including any and all Published Content, that is used or loaded by the Customer or any of its Customer Users on the Portal or otherwise as part of any Service Provider Services;

(iii) to the Customer’s knowledge, there are no viruses or damaging materials contained within the Customer Data, including without limitation any Published Content that might damage or interfere with the Portal in any way.

(iv) with regard to all Customer Data, including all Published Content: (1) the transfer of all such Customer Data, including all Published Content will be carried out in accordance with the relevant provisions of the applicable data protection law; (2)all necessary appropriate consents and notices have been obtained to enable lawful transfers of any of the foregoing to the Service Provider  for the duration and purposes as set forth in this Agreement; (3) Customer shall maintain records and document regarding the basis for the cross-border data transfer for evidentiary purposes; and (4) Customer shall immediately inform Service Provider of any requirement under applicable law that would require Service Provider to process any data other than as set forth in this Agreement.

     (d)  Service Provider is not required to review any Customer Data (including without limitation any Published Content) uploaded to or used on the Portal or through any other Service Provider Services and shall not be responsible for anything contained within any of the foregoing.  However, Service Provider, at its sole discretion, has the right to review, edit and/or remove any Customer Data (including without limitation any Published Content) and such review, edits or removal.  In addition, Service Provider shall not be liable for any errors or omissions in any Customer Data (including without limitation any Published Content) uploaded to or used on the Portal or through any other Service Provider Services.

8.     Ownership; Customer, Customer User and End User Submissions.

      (a)  As between the Service Provider on the one hand, and the Customer, its Customer Users and End Users on the other hand,  all rights, title and interest, including without limitation all Intellectual Property and other proprietary rights, in, to, arising out of, and/or related to all of the following are owned solely and exclusively by Service Provider (hereinafter collectively referred to as the ”Service Provider’s IP Assets”

          (i) the Portal and any other deliverables under the Service Provider Services, including without limitation any material or information provided by the Service Provider pursuant to any of the Service Provider Services, and any associated applications, tools or data, and all additions, modifications and improvements made or provided by Service Provider, its agents or contractors;

          (ii)  all of the Aggregate/Anonymous Data, as such term is defined below in Section 8(c); 

          (iii) the Service Provider’s website;

          (iv) all of the Service Provider’s other Confidential Information; and

          (v)  all good will associated with all of the foregoing.

Without limiting the foregoing in any way, the parties acknowledge and agree that: (x) all global Intellectual Property rights in and to the Service Provider’s IP Assets shall at all times remain the sole and exclusive property of the Service Provider; (y) by using any of the Service Provider Services,  neither Customer nor Customer Users nor End User gain any ownership rights, title or interest in any such items; and (z)Customer, Customer Users and End Users shall not in any manner represent that they have acquired any rights in the Service Provider’s IP Assets beyond or in addition to the limited Grant expressly granted by Service Provider pursuant to only Section 5(a) herein. 

      (b) As between the parties, Customer retains all right, title and interest (including any Intellectual Property) in and to any Customer Data. Notwithstanding the foregoing, Customer hereby authorizes, and grants a license to, the Service Provider to use and disclose Customer Data and End User Inputs as necessary to:

          (i) provide, operate and administer any and all of the features and functionalities the Service Provider Services contemplated by this Agreement, including without limitation: (a) as necessary for Service Provider to carry out the steps involved in the purchase, sale or other procurement of any Customer Goods or any Service Provider Services; (b) to share with any third parties as deemed necessary by Service Provider to allow it to carry out any of the transactions contemplated by the Service Provider Services or with any other third parties who otherwise participate in any steps involved in the purchase, sale or other procurement of any Customer Goods or any Service Provider Services; or (c) for purposes of detecting, investigating, and preventing security incidents, spam, fraud, or unlawful use of the Service Provider Services, and

          (ii)  respond to Customer’s inquiries or any technical problems and ensure the Service Provider Services is working properly.

Customer may opt out of certain data-sharing described in sections 8(b), 8(b)(i), and 8(b)(ii); however, it may limit, restrict, or completely prevent Service Provider from providing the services to the Customer described herein. To inquire about opting out, please email retailoptout@locally.com.

Notwithstanding the foregoing, the Customer further hereby grants the Service Provider a non-exclusive, worldwide, royalty-free, transferable right and license to collect, use, copy, store, transmit, modify and create derivative works of the Customer Data and Inputs solely to the extent necessary to provide the Service Provider Services and related services of Service Provider and as otherwise provided herein.

      (c)  Customer, each of its Customer Users, and each End User hereby agrees that the Service Provider  has the right (and hereby grants the Service Provider the right) to generate or create: (i)  anonymized-derived versions of usage data from Customer’s, Customer User’s or End User’s use of the Service Provider Services; and (ii) anonymized-derived versions of Customer Data, End User Data, and End User Inputs (collectively, the “Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, the parties hereby agree that all rights, title and interest in and to any and all such Aggregate/Anonymous Data is and shall remain the sole and exclusive property of Service Provider, which Service Provider may (as such owner) share or otherwise use at its discretion for any of its current or future business purposes at any time during or after the Term of this Agreement, including without limitation: (i) sharing such Aggregate/Anonymous Data with others the Service Provider does business in order to enhance the Service Provider’s business operations;  (ii) to develop and/or improve any of the Service Provider’s current or future products and services and to share the same with others; and (iii) to create and distribute any current or future reports and other materials with others.  For purpose of the foregoing definition of “Aggregate/Anonymized Data”, an “anonymized-derived version” means that the applicable original piece of  data (the “Original Data Format”) has been de-identified or aggregated by Service Provider in such a manner that it does not, directly or indirectly, disclose the identity of the Customer, the applicable Customer User, or the applicable End User as may have been (if at all) in the applicable Original Data Format. 

      (d) Service Provider reserves the right to upgrade, modify, replace or reconfigure the Service Provider Services at any time, provided that you will be provided at least thirty (30) days' advance notice for material changes and in no event shall there be a change that materially or adversely affects Customer’s use of the Service Provider Services or materially degrades the functionality of the Service Provider Services during the Term of this Agreement. Service Provider may also change the Service Fees schedule, support terms, and service level agreements for the Service Provider Services subject to at least sixty (60) days' advance notice given pursuant to the terms of Section 9(b), except that the change will not apply for the remainder of the Term of Service to the amount and type of Service Provider Services you have contracted for under existing Agreements.

9.     Communications from Service Provider/Notice.

    (a) Customer authorizes Service Provider to periodically contact Customer, Customer Users and End Users as necessary to provide, operate and administer the Service Provider Services consistent with this Agreement and Service Provider’s Privacy Policy.

      (b) Any notices relating to this Agreement shall be in writing. Notices will be deemed given (i) when delivered personally, (ii) three business days after having been sent by commercial overnight carrier with written proof of delivery, and (iii) five business days after having been sent by first class or certified mail, postage prepaid when sent to the other party at the address first set forth above, or to such changed address of which a party may notify the other party in writing. Service Provider may also send notices to the e-mail addresses on Customer’s or the End User’s account. Service Provider may also provider operational notices regarding the Service Provider Services or other business-related notices through conspicuous posting of such notice on Service Provider’s website or the Service Provider Services. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications that Service Provider sends electronically will satisfy any legal communication requirements, including those that communications be in writing. Service Provider is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.

10.   Payment of Service Fees.; Taxes

    (a) Customer hereby agrees to, and shall pay, the Service Provider all of the fees pursuant to and as set forth in Statement of Work for the Service Provider’s provision of the Service Provider Services under this Agreement (hereinafter the “Service Fee”).

    (b) For clarity, and the avoidance of doubt, the Customer hereby agrees that: (i) the Customer is solely responsible for the payment of all sales taxes, excise taxes, use taxes, value added taxes, import and export duties, tariffs and customs, and any other government charges, fees, or taxes (collectively, any “Tax”) imposed on or arising out of, or related to, purchase, sale, offer to sale, distribution, or any other uses of the Company Goods; and (ii) in the event the Service Provider (whether or not required to do so pursuant to any regulations or laws) withholds, pre-pay or pays any Tax to any government entity on behalf of the Customer (“Tax Payment”), the Service Provider is not responsible, and is hereby relieved of all liability arising out of, any inadequacy or miscalculation of any such Tax Payment, any late payment of the Tax Payment, or any interest, penalty or any other liability related to any such Tax Payment.

    (c) For Customer’s located in the United States or Canada, Service Provider shall, as a market place facilitator, remit sales tax to the proper tax authority for all sales where payment is collected online. In most cases, Service Provider shall withhold the sales tax prior to the remittance of the gross merchandise value to the retailer. In the event sales tax was not withheld during the online payment from the Customer’s End User Service Provider reserves the right to bill the Customer for the sales tax.

    (d) For Customer’s located in all Countries other than the United States and Canada, VAT (or other indirect taxes) are the sole responsibility of the Customer. Customer is to provide their tax registration number (and any other documents Service Provider determined necessary) and agree to remit VAT on all orders for store pickup. If you fail to provide sufficient documentation to be determined by Service Provider, Service Provider may withhold payments up to the amount as required by applicable law.  

11.    Cooperation. Customer hereby agrees to cooperate with Service Provider in the resolution of all End User disputes related to products purchased from Customer and facilitated by Service Provider. Should Customer fail to cooperate, Service Provider shall have the right to withhold future payments or bill Customer for the amount in question on their regular monthly statement.

12.   Confidential Information. Each party agrees to hold the other Party’s Confidential Information in confidence.  Each Party further agrees that it will not disclose the other Party’s Confidential Information, or otherwise make the other Party’s Confidential Information available in any form to any third party without the other Party’s written consent.  Each Party further agrees not to use the Confidential Information of the other Party for any purpose other than to perform its obligations or exercise its rights hereunder.   Each Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its current or former employees or agents in violation of the terms of this Agreement. The parties hereby acknowledge and agree that any breach of or default of a party’s obligations of confidentiality under this Agreement shall cause damage to the other party in an amount difficult to ascertain.  Accordingly, in addition to any other relief to which a party may be entitled, the non-defaulting party shall be entitled, without proof of actual damages, to seek any injunctive relief ordered by any court of competent jurisdiction including, but not limited to, an injunction restraining any violation of the defaulting party’s obligations of confidentiality hereunder.

13.   Termination; Effect of Termination or Expiration.

    (a) Customer may terminate this Agreement at any time, with or without cause, by giving the Service Provider no less than thirty (30) days’ prior written notice of termination.

    (b) Service Provider may terminate this Agreement for cause in the event of a material breach by Customer which remains uncured for a period of thirty (30) days following receipt of notice of such breach from Service Provider.

    (c) If Customer terminates this Agreement for convenience during the Initial Term as provided for in Section 13(a), or Service Provider terminates this Agreement for cause during the Initial Term as provided for in Section 13(b), any payments for the remaining portion of the Initial Term will become due and must be paid immediately by Customer.

    (d) Upon expiration or prior termination of this Agreement, all licenses granted pursuant to Section 5(a) shall automatically terminate.  Notwithstanding the termination or expiration of this Agreement for any reason whatsoever, the obligations in the following Sections shall survive: 8 (Ownership; Customer, Customer User and End User Submissions), 12 (Confidential Information), 14 (Indemnification); 15 (No Warranties, Limitation of Liability) and any undisputed obligations of payment which accrued through the effective date of termination. 

14.   Indemnification.

    (a) By Service Provider.   Service Provider shall defend, indemnify, and hold Customer, its Affiliates, and their respective officers, directors, employees, agents, and customers harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities to the extent arising out of or related to: (i) any claim by a third party that any use of, or access to, the Service Provider Services expressly authorized under this Agreement, as provided by Service Provider hereunder, infringes or misappropriates, as applicable, any patent issued or any copyrights or trade secrets or other Intellectual Property under applicable laws of any jurisdiction; (ii) the grossly negligent or willful misconduct of Service Provider; or (iii) the violation of any applicable law by Service Provider.  The foregoing obligation does not apply to the extent that the alleged infringement arises from (a) access to or use of the Service Provider Services  in a modified form or in combination with any hardware, system, software, network, or other materials or service not provided by Service Provider (to the extent that the combination is the cause of the claims); (b) any Inputs, Customer Data, or other information or data provided by Customer, any Customer User or any other third party where such is the proximate cause of the claim; (c) any claims related to Customer’s infringement of any third party intellectual property; (d) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Service Provider; or (e) where Customer’s use of the Service Provider Services  is not strictly in accordance with this Agreement. Indemnity pursuant to this Section shall be subject to those procedures outlines in Section 13 (c) below. If, due to a claim of infringement, the Service Provider Services  are held by a court of competent jurisdiction to be, or is believed by Service Provider to be, infringing, Service Provider may, at its option and expense: (a) replace or modify the Service Provider Services to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the  Service Provider Services , or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Service Fees  for the Service Provider Services.

     (b) By Customer.   Customer shall defend, indemnify, and hold Service Provider, its Affiliates, and their respective officers, directors, employees, agents, and customers harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities to the extent arising out of or related to: (i) Customer Data; (ii) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer, including Service Provider’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by Service Provider; (ii) the grossly negligent or willful misconduct of Customer or any third party on behalf of Customer; (iv) failure to pay any Tax or make any Tax Payments related to the Customer Goods, as such terms are defined in Section 10 herein) related to the Customer Goods; (v) Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement or (vi) the violation of any applicable law by Customer.

    (c) Procedure.  If an indemnified Party hereunder (each an “Indemnified Party”) is entitled to indemnification under this Section, the Indemnified Party will give the other party (an “Indemnifying Party”) prompt written notice of all claims (provided however that any delay in notification will not relieve the Indemnifying Party of its obligations under this Agreement except to the extent that the delay impairs its ability to defend) and cooperate reasonably with the Indemnifying Party, at the Indemnifying Party’s expense, in connection with the defense and settlement of the claims.  The Indemnifying Party will, at its own expense, have sole control of the defense or settlement of the claim; provided, however, that in settling any claim, the Indemnifying Party will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by or the imposition of any obligation upon the Indemnified Party without the prior written consent of the Indemnified Party.  The Indemnified Party will have the right to participate fully, at its own expense and with counsel of its own choosing, in the defense of any claim.  

15.   No Warranties, Limitation of Liability.

    (a) NEITHER PARTY MAKES, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS OR WARRANTIES OF ALL KIND (INCLUDING WITHOUT LIMITATION WITH REGARD TO THE SERVICE PROVIDER SERVICES  ), INCLUDING, BUT NOT LIMITED TO ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE AMOUNT OF COMPENSATION PROVIDED UNDER THIS AGREEMENT.

    (b) NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, THE PARTIES AGREE THAT  NEITHER PARTY WILL BE LIABLE IN AN AMOUNT TO EXCEED THE GREATER OF (I) $5,000 OR (II) THREE (3) TIMES THE AMOUNT PAID BY CUSTOMER TO SERVICE PROVIDER IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM.

16. Representations and Warranties. In addition to the Customer’s other representations and warranties in Section 7 herein, each Party represents and warrants to the other that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations.

17. Relationship of the Parties. Service Provider and Customer are independent contractors and nothing contained in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties.

18. Entire Agreement.  This Agreement, as such term is defined above, along with any and all exhibits, addendum, or statement of work signed by the Parties hereto constitute the entire agreement between the Parties and may only be modified by a writing signed by both Parties.  In the event of any conflict between the terms of this Agreement and any online terms or Exhibits, the terms of this Agreement shall control.

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

20.  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.

21.   Assignment. This Agreement is not assignable, transferable or sublicensable by either Party except with the other’s prior written consent; provided, however, that either Party may assign or transfer this Agreement: (a) to an affiliate where (i) the assignee has agreed in writing to be bound by the terms of this Agreement, (ii) the assigning Party remains liable for obligations under this Agreement if the assignee defaults on them, and (iii) the assigning Party has notified the other Party of the assignment, in writing; and (b) in the event of a merger, sale of substantially all of the stock, assets or business, or other reorganization involving the assigning Party, and the non-assigning Party’s prior written consent shall not be required in such instance with the express understanding that in cases where the assigning Party is not the surviving entity, this Agreement will bind and inure to the successor in interest to the assigning Party with respect to all obligations hereunder. Any other attempt to transfer or assign is void.  

22.  Governing Law. This Agreement is governed by the laws of the State of Delaware and the United States, without regard to choice or conflict of law rules thereof.

23.  Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act or order.

24.  Counterparts. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery will be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.

EXHIBIT A TO MASTER AGREEMENT FOR RETAIL STORES

STATEMENT OF WORK

Upon registering for a Locally Account, Customer may add the additional services described below. Pricing and services are subject to change and the notices described in section 9(b).