ARTICLE 1
INTERPRETATION

1.1 Definitions

In this Agreement, in addition to the terms defined elsewhere in this Agreement, capitalized terms used have the meaning set forth in Schedule A attached hereto. Schedule A also sets out certain general rules of interpretation applicable to this Agreement.

1.2 General Provisions

The general provisions set out in Schedule B are incorporated into and form part of this Agreement.

1.3 Schedules

The following is a list of Schedules:

ARTICLE 2
SERVICES

2.1 Master Contract

This Agreement is a master contract. This Agreement shall control and govern any and all Services to be performed by Zippin for Retailer or one of its Affiliates in accordance with Section 2.3. Such Services shall be set out in an Order Form executed by both Parties. This Agreement does not bind Retailer to request Services, nor does it require Zippin to agree to perform Services if requested. However, whenever Zippin performs any Services for Retailer, this Agreement shall govern and control unless the Parties (through authorized officers of each Party) agree otherwise in writing.

2.2 Provision of Services

Zippin agrees to provide the Services to Retailer in accordance with the applicable Order Form, at the Location(s) set out in such Order Form. The specific Services to be performed by Zippin shall be those selected on such Order Form, based on the terms and specifications set out in the corresponding Service Schedule(s) and the selections made with respect to the Schedule Options. For certainty, the Parties to a specific Order Form may determine that no Equipment Services are to be performed by Zippin.

2.3 Retailer Affiliates

2.3.1            Affiliates of Retailer may request Services by entering into an Order Form with Zippin. In such case:

(a)          the term “Retailer” used in this Agreement shall refer to the particular Retailer entity identified on the Order Form for which the Services are being performed;

(b)          the Services requested and performed, and the relationship between Zippin and the Retailer entity identified on the Order Form shall be governed by this Agreement;

(c)          the Retailer entity identified on the Order Form shall be treated as a separate Party under this Agreement;

(d)          Zippin shall issue invoices in the name of the particular Retailer entity identified on the Order Form; and

(e)          the Retailer identified on the Order Form will be jointly and severally liable for all the rights, duties, and obligations of Retailer in this Agreement or in the applicable Order Form.

2.3.2            For certainty, a Retailer entity may not use the Proprietary Offerings at or for any Location operated by any of its Affiliates, unless such use and Location are the subject of a valid Order Form entered into between Zippin and such Affiliate. 

2.4 Additional Services

If Retailer identifies additional required services that Zippin can provide (the “Additional Services”), the Parties will promptly negotiate in good faith to arrange for the provision of those Additional Services by Zippin upon mutually agreeable terms and conditions, which shall be set out on an Order Form executed by both Parties.

2.5 Performance Standards

All Services to be performed by Zippin will be performed in a competent and professional manner, adhering to a standard of care that is consistent with best practices and industry standards. Zippin will make commercially reasonable efforts to provide the Services in a timely manner consistent with Zippin’s operation of its business. Zippin will make all necessary and appropriate personnel available to perform the Services in accordance with the standard of care required by this Section 2.5. Zippin’s personnel will have appropriate education and training to perform the Services in a workmanlike manner.

2.6 Location(s)

All Services to be provided by Zippin will be performed remotely or at the specific Location(s) indicated on the Order Form, as applicable. Retailer will only be permitted to use the Proprietary Offerings or the Equipment, or request any Services, at the Location(s) specified on the applicable Order Form.

2.7 Third Party Agreements and Licenses

In the event that any software or hardware licensed from a third party are used in providing the Services, Zippin will provide Retailer with a copy of the applicable terms and conditions of such third party license and Retailer agrees to abide and be bound by such terms and conditions.

2.8 General Limitations

Nothing in this Agreement will prohibit Zippin from making minor changes or additions to the Services, so long as Zippin continues to provide the Services substantially in the manner that it has agreed to provide them under the applicable Order Form.

2.9 Relationship of the Parties

The Parties acknowledge and agree that they are independent contractors.  Neither Party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other. Nothing in this Agreement creates a partnership, joint, venture, or agency relationship between the Parties. During the Term of any valid Order Form, each Party shall be responsible for its own personnel and employees, and for all wages, benefits, withholdings for tax purposes, and all other employer liabilities and responsibilities relating to their respective personnel.

ARTICLE 3
TERM AND TERMINATION

3.1 Term

3.1.1            This Agreement takes effect on the Effective Date and will continue in effect for an initial term of three (3) years (the “Initial Term”), unless earlier terminated in accordance with this Agreement. The Term of this Agreement will automatically renew for subsequent one (1) year periods thereafter, unless either Party provides written notice of non-renewal to the other Party at least ninety (90) days prior to the end of the Initial Term or any renewal, provided that no active Order Form is in effect at the time such notice of non-renewal takes effect.

3.1.2            The term of each Order Form issued under this Agreement or applicable to any specific Service is stated on the respective Order Form. In the event that there are active Order Forms in effect under this Agreement, the Parties may terminate any specific Order Form (in accordance with this Article 3) without terminating this Agreement or any other Order Form entered into by the Parties, unless otherwise agreed to by the Parties and accepted by each Retailer entity identified on the terminating Order Form(s).

3.1.3            If upon termination of this Agreement, Services remain to be performed under any Order Form(s), then with respect to such Order Form(s), this Agreement shall remain in full force and effect, unless otherwise agreed to by the Parties and accepted by each Retailer entity identified on the applicable Order Form(s).

3.2 Termination for Cause

This Agreement or any Order Form may be terminated by a Party upon [5] Business Days’ notice to the other Party (the “Defaulting Party”) upon the occurrence of any of the following events:

3.2.1            if the Defaulting Party is in default of any material term of this Agreement and the default has not been cured within 30 days of written notice of that default having been given by one Party to the Defaulting Party;

3.2.2            if the Defaulting Party has breached its obligations of confidentiality under Section 7.2, and the default has not been cured within 30 days of written notice of that default having been given by one Party to the Defaulting Party;

3.2.3            if Retailer breaches the Intellectual Property restrictions under Section 6.3, and the default has not been cured within 30 days of written notice of that default having been given by one Party to the Defaulting Party;

3.2.4            if the Defaulting Party becomes insolvent, makes an assignment for the benefit of creditors or is the subject of any proceeding under any bankruptcy and/or insolvency law;

3.2.5            if the Defaulting Party winds up, dissolves, liquidates or takes steps to do so or otherwise ceases to function as a going concern; or

3.2.6            if a receiver or other custodian (interim or permanent) of any of the assets of the Defaulting Party is appointed by private instrument or by court order or if any execution or other similar process of any court becomes enforceable against the Defaulting Party or its assets or if distress is made against any of the Defaulting Party’s assets.

The Service Schedules may also include specific termination provisions applicable to certain Services. 

3.3 Effect of Termination

3.3.1            Upon the expiration or termination of this Agreement or any Order Form (as applicable):

(a)          all Services under the terminated Order Form(s) will terminate;

(b)          Retailer will uninstall, return or destroy (as instructed by Zippin) all instances of the Proprietary Offerings in its custody or possession, or otherwise under its control;

(c)          the Parties will return or destroy, as applicable, any Confidential Information of the other Party, as contemplated in Section 7.3; and

(d)          the Parties will complete a final reconciliation of amounts owed to Zippin under the terminated Order Form(s), as contemplated in Article 4.

3.3.2            Termination of this Agreement or any Order Form will not release, discharge or otherwise affect the obligation of the Retailer to pay for any Services provided to it before the termination took effect, including any late fees or interest on unpaid amounts as contemplated by Sections 4.4 and 4.5.

3.3.3            In the event of termination by Retailer for a breach of this Agreement by Zippin, Zippin will refund to Retailer the unearned, prepaid License Fees, if any, prorated from the effective date of such termination through the end of the applicable prepaid period. Any corresponding refund related to Equipment Services are set out in the applicable Service Schedule.

3.4 Exclusive Remedy

Termination of this Agreement will be Retailer’s sole and exclusive remedy for any breach of this Agreement by Zippin. 

3.5 Survival

The provisions with respect to confidentiality, intellectual property, indemnification, insurance, will survive any termination or expiration of this Agreement for as long as either Party has any pending rights, duties or obligations thereunder.

3.6 Force Majeure

3.6.1            For the purposes of this Agreement, “Force Majeure” means: acts of God; laws, orders, rules, regulations, acts and restraints of armies, militaries, enemies, terrorists, and Governmental Authorities; war, revolutions, mobilization, political and civil unrest or insurrection, embargos, disturbances and riots; epidemics, outbreak of disease, and quarantine; inclement weather including floods, storms, tornados, hurricanes, tsunamis, earthquakes, volcanic eruptions and landslides; explosions and fire; labor issues including disputes, walkouts, strikes, slowdowns, lockouts and picketing; damage, destruction or expropriation of property; delays or defaults in or caused by, and shortages of, power, water, transportation and common carriers, facilities, labor, subcontractors or suppliers, goods, materials and supplies; breakdowns in or the loss of production; the non-availability of relevant markets and the state of the marketplace; and any other event or occurrence beyond the reasonable control of the applicable Party. For certainty, financial hardship does not constitute Force Majeure.

3.6.2            If a Party (the “Failing Party”) is unable or fails to perform any of its duties and obligations under this Agreement (except the making of payments) by reason of Force Majeure, the Failing Party will not be liable to the other Party during the period of Force Majeure and to the extent of its inability or failure, but: (i) the Failing Party claiming Force Majeure must notify the other Party in writing within 24 hours after the Force Majeure event, setting out in reasonable detail the nature of the event, giving a good faith estimate of the expected duration of the event and outlining the steps the Failing Party intends to take to mitigate the effect of the event; and (ii) the Failing Party will make commercially reasonable efforts in the circumstances to surmount the event of Force Majeure, and to resume full performance as soon as it is reasonably possible to do so, provided that the Failing Party will not be required to settle any labor issues including disputes, walkouts, strikes, slowdowns, lockouts or picketing on commercially unreasonable terms.

ARTICLE 4
PAYMENT

4.1 Fees

All Fees payable in respect of the Services are set out in the applicable Order Form. Different payment terms may apply to the different types of Fees, including Software-related Fees and Equipment-related Fees. Zippin has the right to review its Services Fees on an annual basis. Upon the renewal of a Subscription Term or renewal of the Term of a specific Order Form, the pricing and Fees payable for any continuing Services will be based on the applicable pricing in effect at the time of such renewal.

4.2 Invoicing and Payment

4.2.1            Currency: Unless otherwise agreed to in an Order Form, all Fees or other amounts to be paid under this Agreement will be invoiced and will be paid in United States Dollars, by wire transfer of immediately available funds.

4.2.2            Specific Payment Terms: Specific payment terms are set in out in the applicable Order Form, which may include a requirement that Retailer pay a deposit prior to Zippin performing any Services.

4.2.3            Payments prior to Launch: Unless otherwise expressly set out in the relevant Order Form, prior to the launch of the applicable Location or store, Retailer must pay all Fees due to Zippin attributable to such Location. Retailer acknowledges and agrees that Zippin will have the right to withhold, suspend or postpone the launch of such Location until all such Fees are paid up.

4.3 Failure to Launch due to Payment Delays

4.3.1            The launch date for each Location will be set out on the corresponding Order Form applicable to such Location (the “Location Launch Date”).

4.3.2            In the event that the launch of a Location is suspended or postponed (pursuant to Section 4.2.3) due to outstanding Fees that remain unpaid, and such suspension or postponement continues for a period of 30 days after the applicable Location Launch Date, Zippin will have the right to:

(a)          Remove from such Location, and take possession of, any Equipment supplied or provided by Zippin and for which payment remains outstanding. Upon removal, Zippin will have full ownership of such removed Equipment, and will have the right to hold, dispose or otherwise resell such Equipment in its discretion; and

(b)          Charge Retailer a removal, uninstallation and restocking fee with respect to such Equipment, as may be set out in the applicable Order; and/or

(c)          Terminate all or a portion of the applicable Order Form in accordance with Section 3.2.1.

4.4 Prepayment and Late Charges

At Zippin’s discretion, Zippin may require prepayment of all or a portion of the Fees payable by Retailer in the event that Retailer fails to maintain satisfactory credit with Zippin, as determined by Zippin in sole discretion. Unless otherwise set out in the applicable Order Form, a late charge of the lesser of (i) 1.5% on the outstanding invoice amount due per month; or (i) the maximum rate permitted by law, will be charged to Retailer on past due accounts. 

4.5 Disputed Fees

4.5.1            Retailer may withhold payment on the disputed portion of the invoiced Fee where a bona fide dispute regarding the invoice exists between the Parties. In the event of such a dispute, Retailer will provide written notice of the disputed amounts and the basis for the dispute within 15 days of receipt of Zippin’s invoice.  Despite such dispute, Retailer will pay to Zippin, in accordance with the terms of this Agreement, all amounts that are not in dispute. The Retailer and Zippin will negotiate in good faith to resolve any invoice dispute.

4.5.2            The Retailer will be deemed to have finally accepted Zippin’s invoice unless it delivers its dispute notice to Zippin within the applicable time period. Retailer is not required to pay invoiced amounts in dispute until the dispute is resolved. 

4.5.3            Within 10 Business Days of the resolution of the invoice dispute, Retailer will pay to Zippin the disputed portion of the invoice in accordance with such resolution. In the event the dispute is resolved in Zippin’s favor and disputed amounts are not paid within 30 days from the date the invoice dispute notice was received by Zippin (the “Disputed Payment Period”), Retailer will pay interest to Zippin on the outstanding disputed amount at the rate of 1.5% per month from the day after the Disputed Payment Period until the day payment is made. In the event the dispute is resolved in Retailer’s favor, credits due to Retailer may be applied against amounts owed to Zippin under the same Order Form or a different Order Form entered into by the same Retailer entity.  Credits will be stated on separate invoices and at Retailer’s request, paid within 45 days. 

4.5.4            Zippin will continue to provide the Services without interruption in the event of an invoice dispute for a period of up to 90 days from the day the invoice dispute notice was received by Zippin. If the invoice dispute is not resolved within such 30 days, Zippin shall have the right to suspend the performance of the Services.

4.6 Taxes

4.6.1            Retailer will solely be responsible for, and will promptly pay, any and all applicable sales, excise or other taxes, levies or other charges of any kind imposed by any Government Authority with respect to the purchase of Services or otherwise associated with this Agreement, except for taxes based on Zippin’s net income or other taxes or withholdings related to Zippin’s employees).

4.6.2            All payments due from Retailer will be made without any deduction or withholding for any tax or mandatory payment to government agencies, unless required to do so under Applicable Law, in which case, the amount payable by Retailer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after the deduction or withholding, Zippin receives, free from liability for the deduction or withholding, a net amount equal to the amount Zippin would have received in the absence of the required deduction or withholding.

4.6.3            Any additional jurisdiction-specific tax provisions will be set out in the applicable Order Form. The Order Form will also identify any tax exemption status or other special tax status applicable to Retailer.  If such tax status is not set out in the applicable Order Form entered into by the Parties, Zippin will have no obligation to accommodate Retailer or otherwise modify or address its invoicing or Fees due to such tax status.

4.7 Material Changes in Costs

The charges for Services set out in the applicable Order Form are based on certain assumptions acknowledged and agreed to by the Parties regarding the underlying costs of providing the Services. If events occur that cause a material change in the underlying costs of providing the Services, Zippin and the Retailer agree to negotiate in good faith to adjust the Fees that the Retailer will be required to pay in the future for the continued provision of the Services.

ARTICLE 5
EQUIPMENT

5.1 Equipment Services

Any procurement, purchase, supply, installation, maintenance or repair of Equipment by Retailer, Zippin, or their respective Subcontractors, shall be in accordance with the terms, conditions and specifications set out in the applicable Equipment Service Schedule and based on the selections made with respect to the Schedule Options. Any Fees or Equipment Costs payable by Retailer shall be set out in the applicable Order Form.

5.2 Proprietary Equipment

To the extent any Equipment is labeled as being proprietary to Zippin or otherwise identified as such in the applicable Order Form, Service Schedule or other Equipment purchase documentation (the “Proprietary Equipment”), such Proprietary Equipment will be treated as Proprietary Offerings and the provisions of Article 6 will apply to such Equipment.

5.3 Shipping and Delivery

Unless otherwise set out in the applicable Order Form, Retailer will be responsible for the arrangements with respect to shipping and delivery of Equipment to the applicable Location(s), and all associated costs (including taxes, duties, levies, insurance, import/export fees).

5.4 Title and Risk

Unless otherwise set out in the applicable Order Form, title to the Equipment, and all risks related to the Equipment, pass to the Retailer when the Equipment leaves Zippin’s premises (or the premises of Zippin’s supplier, as applicable) at the time of transfer to the Retailer’s designated shipping carrier.

5.5 Equipment Covenant

Retailer covenants that it will not permit any charge, lien, security or other encumbrance to be placed or imposed on the Equipment, whether as a result of a security arrangements, loan, pledge or otherwise, until all outstanding Fees have been paid to Zippin and Zippin’s Checkout-Free Shopping Platform has been successfully launched at the Location in which the Equipment is situated and/or installed.

ARTICLE 6
INTELLECTUAL PROPERTY

6.1 Ownership of Intellectual Property

6.1.1            Background IP.

(a)          Retailer shall retain ownership of all Intellectual Property and derivatives thereof that Retailer owned or developed prior to the date of this Agreement, or that Retailer developed independently of the Services performed by Zippin under this Agreement (collectively, “Retailer Background IP”). Subject to the remaining provisions of this Article 6, Retailer shall also retain ownership of all Retailer Data.  Retailer hereby grants to Contractor a worldwide, royalty-free, revocable, non-transferable, non-exclusive license to use Retailer Background IP and Retailer Data in accordance with this Agreement, solely to the extent necessary for Contractor to perform the Services.

(b)          Zippin shall retain ownership of all Intellectual Property, and derivatives thereof, that Zippin owned or developed prior to the date of this Agreement, or that Zippin developed independently of the Services performed under this Agreement, including any Intellectual Property related to the Proprietary Offerings (“Zippin Background IP”).  Zippin hereby grants to Retailer a limited, revocable, non-exclusive, worldwide, non-sublicensable, non-transferable, non-assignable and royalty-free right and license to use Zippin Background IP in accordance with this Agreement and for the term of the applicable Order Form, solely for use by Retailer, and solely to the extent necessary for Retailer to exploit and enjoy all intended benefits of the Services.

6.1.2            Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Zippin may monitor Retailer’s and End User’s use of the Proprietary Offerings and collect and compile Aggregated Statistics; provided however that such Aggregated Statistics shall only be used by Zippin in an aggregated and anonymized manner. All right, title, and interest in Aggregated Statistics, and all Intellectual Property therein, belong to and are retained solely by Zippin. Retailer acknowledges that Zippin may compile Aggregated Statistics based on Retailer Data input into, stored or Processed by the Proprietary Offerings.  Retailer agrees that Zippin may (i) make Aggregated Statistics publicly available in compliance with Applicable Law, (ii) use Aggregated Statistics to improve its Services or its Proprietary Offerings or to develop new services or offerings, or for its internal business purposes, and (iii) offer, sell and provide to third parties any goods, services, or other offerings that include or were developed through Zippin’s use of Aggregated Statistics; however, provided that the foregoing does not identify Retailer, Retailer Data, or Retailer’s Confidential Information.

6.1.3            Feedback. Retailer or any of its Representatives may, but is not obligated to, provide to Zippin suggestions, recommendations, comments, questions, feedback or the like regarding the Services or the Proprietary Offerings, including any proposed changes, new features or functionality relating thereto (collectively, “Feedback”). Except where (and to the extent that) such Feedback includes Retailer Data, Retailer Confidential Information or Retailer Background IP, Retailer acknowledges that all right, title, and interest in and to the Feedback and any developments or improvements to the Proprietary Offerings, the Services or other Zippin technologies, and all Intellectual Property therein, will belong to and be the solely owned by Zippin. Zippin will have the right to incorporate the Feedback into any of Zippin’s products, services or technologies, or otherwise use and commercialize the Feedback, so long as Zippin does not identify Retailer, Retailer Data, Retailer’s Confidential Information, or Retailer Background IP.

6.1.4            Modifications, Derivatives and Improvements. Zippin is and will remain the sole and exclusive owner of any and all modifications, enhancements, improvements and derivatives of Zippin Background IP (including any and all modifications, enhancements, improvements and derivatives of the Proprietary Offerings), whether or not developed during the performance of the Services or an Order Form, and whether or not based on Feedback or Aggregated Statistics.

6.2 License and Use Rights 

Subject to the terms and conditions of this Agreement, and solely to the extent necessary for Retailer to exploit and enjoy all the intended benefits of the Services (as set out in the applicable Order Form), Zippin grants to Retailer a limited, revocable, non-exclusive, worldwide, non-sublicensable, non-transferable, non-assignable and royalty-free right and license to:

6.2.1            access and use the Proprietary Offerings during the applicable Subscription Term solely for the Permitted Use at the authorized Location(s), subject to any maximum usage metrics or limitation(s) specified in the applicable Order Form;

6.2.2            install and use the Software on Equipment during the applicable Subscription Term solely for the Permitted Use at the authorized Location(s), subject to any maximum usage metrics or limitation(s) specified in the applicable Order Form; and

6.2.3            use, and to make reasonable numbers of copies of, the Documentation during the applicable Subscription Term solely in connection with Retailer’s Permitted Use of the Proprietary Offerings.

6.3 Restrictions

6.3.1            Except as expressly permitted by this Agreement or the applicable Order Form, Retailer will not, and will ensure that Retailer Representatives do not: 

(a)          reverse engineer, decompile, disassemble, modify or create derivative works of all or any portion of the Proprietary Offerings;

(b)          sublicense, rent, lease, loan, timeshare, sell, distribute, disclose, publish, assign or transfer any rights, grant a security interest in, or transfer possession of all or any portion of the Proprietary Offerings to any third party;

(c)          incorporate all or any portion of the Proprietary Offerings into any product or technology sold, licensed or provided by Retailer to its Retailers, End Users, or any third parties;

(d)          host all or any portion of the Proprietary Offerings or the Equipment’s pre-installed code or imbedded software for third party use or otherwise make all or any portion of the functionality of the Proprietary Offerings available to third parties as an application service provider or service bureau;

(e)          circumvent Zippin’s license control measures;

(f)           use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Proprietary Offerings;

(g)          disclose the results of any benchmark test of the Services or the Proprietary Offerings to any third party, unless authorized to do so by Zippin in writing;

(h)          remove or modify any copyright or other proprietary notices contained in the Proprietary Offerings; or

(i)            allow any third party under Retailer’s direction or control to do any of the foregoing.

6.3.2            Zippin reserves all rights to the Proprietary Offerings that are not expressly granted in this Agreement.  Nothing in this Agreement will be construed as granting Retailer any property rights in or to the Proprietary Offerings, or in or to any invention or any patent, copyright, trademark or other Intellectual Property that has been issued, or that may issue, based on the Proprietary Offerings. The Proprietary Offerings are licensed hereby, not sold.

ARTICLE 7
CONFIDENTIALITY

7.1.1            The Parties, in the course of negotiations and performance of this Agreement or any applicable Order Form and subsequent relationships with each other, may have access to financial, accounting, statistical, personnel, client, or other technical or business information of the other Party or its Affiliates, which information is and shall be deemed for all purposes under this Agreement as trade secrets or proprietary. Except as otherwise provided in this Agreement, all such information, including, without limitation, information obtained or disclosed as a result of performance of the Services, shall be considered “Confidential Information” whether communicated in written form, orally, visually, demonstratively, technically or by any other electronic form or other media (including information in computer software or held in electronic storage media), or committed to memory, and whether or not designated, marked, labelled or identified as confidential or proprietary.

7.1.2            Confidential Information will not include any information which

(a)          was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party;

(b)          becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party;

(c)          is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party's files and records immediately prior to the time of disclosure;

(d)          is obtained by the receiving Party from a third party without a breach of such third party's obligations of confidentiality; or

(e)          is independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information, as shown by documents and other competent evidence in the receiving Party's possession. 

7.1.3            Confidential Information may include a third party’s confidential information. Zippin’s Confidential Information includes, without limitation, the Proprietary Offerings, Zippin Background IP, Aggregated Statistics, Fees and price lists. Retailer’s Confidential Information includes, without limitation, Retailer Background IP and Retailer Data.

7.2 Obligations of Confidentiality

7.2.1            Each Party acknowledges and agrees that:

(a)          it will hold all Confidential Information in confidence;

(b)          it will not to disclose any Confidential Information of the disclosing Party to third parties without the prior written consent of such Party;

(c)          it will not disclose any Confidential Information to its own Representatives, except to those Representatives with a need to know such information and provided they are bound by obligations of confidentiality similar to those set out herein;

(d)          it will not to use any Confidential Information of the other Party for any purpose except to the extent necessary to perform its obligations or exercise its rights under this Agreement; and

(e)          it will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. 

7.2.2            Without limiting the foregoing, each Party will take at least those measures that it takes to protect its own most highly confidential information and will ensure that its Representatives who have access to the Confidential Information of the other Party have committed to non-use and non-disclosure terms in content similar to the provisions hereof.  Each receiving Party will reproduce the disclosing Party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.

7.2.3            If a receiving Party is requested by any court, tribunal or Governmental Authority, or otherwise required by Applicable Law to disclose any Confidential Information, it will, to the extent permitted by law prior to any such disclosure, notify the disclosing Party and provide an opportunity to permit the disclosing Party to seek a protective order or take other appropriate action.  The receiving Party will reasonably cooperate in the disclosing Party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information.

7.2.4            Each Party agrees to notify the other Party immediately upon discovery of any breach of this Section 7.2 or any unauthorized or unlawful disclosure, divulgence, communication or use of any Confidential Information.

7.2.5            Each Party acknowledges that the other Party will not have an adequate remedy in the event that it breaches this Section  7.2, and that such Party may suffer irreparable damage and injury in such an event. The breaching Party agrees that the non-breaching Party, in addition to seeking any other available rights and remedies as may apply, will be entitled to seek an injunction restraining the breaching Party from committing or continuing such violation without the necessity of posting a bond or other security.

7.3 Return of Confidential Information upon Termination

Upon termination of this Agreement or any applicable Order Form, the receiving Party of any Confidential Information will promptly:

7.3.1            return to the disclosing Party all documents and other physical or tangible manifestations and electronic and computerized forms of the disclosing Party’s Confidential Information and provide written certification of such return to the disclosing Party; or

7.3.2            destroy all documents and other physical or tangible manifestations and electronic and computerized forms of the disclosing Party’s Confidential Information and provide written certification of such destruction to the disclosing Party;

except one copy of such material may be retained by the receiving Party in the office of its legal counsel and/or in a secure location to preserve a record of the same so long as such retention maintains the standards of confidentiality set forth under the terms of this Agreement or the applicable Order Form for the duration of such retention.

7.4 Publicity

Retailer agrees that Zippin may use Retailer’s name and may disclose that Retailer is a customer of Zippin in advertising, press, promotion and similar public disclosures upon the prior written consent of Retailer (such consent not to be unreasonably withheld or delayed).

7.5 Signage

Signage in stores or Location(s) utilizing Zippin’s Checkout-Free Shopping Platform or the Proprietary Offerings will include a mutually agreeable reference to Zippin (e.g., “Powered by Zippin”) and instructional signage for End Users.

ARTICLE 8
PRIVACY POLICY AND DATA SECURITY

8.1 Privacy Policy

Zippin’s Privacy Policy applicable to the specific Location(s) is set forth at https://www.getzippin.com/privacy, in accordance with any applicable privacy laws that regulate the collection, use or disclosure of Personal Information.

8.2 Personal Information

Retailer acknowledges and agrees that Zippin’s Checkout-Free Shopping Platform does not collect, use or store any Personal Information except what is explicitly defined in the Privacy Policy, and the use of the Proprietary Offerings does not require Retailer to provide any Personal Information to or through the Proprietary Offerings or Zippin’s Checkout-Free Shopping Platform. Personal Information should not be stored by any Proprietary Offering or Zippin’s Checkout-Free Shopping Platform and Zippin shall have no liability to Retailer or its End-Users or any other party related to any Personal Information. Unless expressly agreed otherwise in an Order Form or Schedule to this Agreement, Retailer will not (and will ensure that its Representatives do not) upload, provide or submit any Personal Information to Zippin, the Proprietary Offerings or Zippin’s Checkout-Free Shopping Platform.  If Personal Information is uploaded, provided or submitted to Zippin, the Proprietary Offerings or Zippin’s Checkout-Free Shopping Platform, Retailer represents and warrants that it has obtained all required consents and taken all appropriate legal measures required under Applicable Law for Zippin to provide the Services as contemplated in this Agreement. Zippin may upon notice suspend all or portion of Retailer’s access to the Proprietary Offerings if Zippin has determined, acting reasonably, that Retailer has breached its obligations under this Section until the Retailer has cured its breach to Zippin’s satisfaction.  Zippin will provide Retailer with at least one business day prior notice of any breach before exercising its right to suspend all of portion of its services as provided under this Section.

8.3 Data Security

8.3.1            All Retailer Data is, shall be, and shall remain the property of Retailer and shall be deemed Retailer’s Confidential Information. Retailer reserves all rights to Retailer Data that is not expressly granted in this Agreement or the applicable Order Form. Without Retailer’s prior written consent and subject to the provisions of this Agreement related to Aggregated Statistics, Retailer Data shall not be (i) sold, assigned, leased, or otherwise provided to third parties by Zippin; or (ii) commercially exploited by or on behalf of Zippin.

8.3.2            Zippin shall Process Retailer Data only at the locations and/or geographies set forth in this Agreement or the applicable Order Form, and shall not change such location and/or geography without Retailer’s express prior written consent, except if required by court order or decree. Retailer Data, as Processed through and by the Software, will be stored by Zippin’s third party data storage provider (the “Third Party Provider”), currently being Google Cloud Platform or Microsoft Azure, in accordance with their respective terms and conditions.

8.3.3            Use of Retailer Data by, or disclosure of Retailer Data to, any Person that is not a Party to this Agreement or a Representative of Zippin or Third Party Provider permitted by Zippin to have access to the Retailer Data, that results from a breach of the electronic security of the computers and data storage and retrieval systems or network of Zippin, the Third Party Provider or, if applicable, any Representative of Zippin, will be treated as a disclosure by Zippin contrary to the terms of this Agreement, provided that the breach results from a failure by Zippin or, if applicable, any of its Representatives, to: (i) implement appropriate security measures consistent with best practices or otherwise take necessary precautions in order to secure the Retailer Data; or (ii) exercise due diligence in verifying that the Third Party Provider had in place appropriate security measures consistent with best practices and would take necessary precautions in order to secure the Retailer Data, as the case may be.

8.3.4            Zippin shall maintain and update at least annually a Data Security Breach incident response plan that complies in all respects with Applicable Law and industry-standard practices for companies that Process the types of data that Zippin will Process in connection with this Agreement.

8.3.5            During the Term, and until the return, deletion, or destruction of Retailer Data, Zippin shall implement and maintain administrative, technical, and physical safeguards and other security measures no less than as required by Applicable Law to prevent any unauthorized Processing of Retailer Data or Personal Information it may collect in connection with providing Services and to ensure the ongoing confidentiality, integrity, and resilience of Zippin’s systems. Such safeguards and security measures shall be consistent with generally recognized industry practices and shall include, without limitation, security procedures that are consistent with International Standards Organization (ISO) 27001 and 27002 and any successor standards or updated version thereof, as appropriate (“Security Practices”) to safeguard the confidentiality, integrity, and availability of Retailer Data or the Personal Information  and to protect against unauthorized access, acquisition, and/or interference by third parties, the introduction of malicious code, intrusion, theft, destruction, loss or alteration, including the implementation of industry-standard virus protection systems and intrusion detection systems.

8.3.6            Zippin shall use industry-standard encryption when (i) Processing Personal Information; (ii) Retailer Data is transferred to any mobile device or mobile storage or removable media; (iii) moving any type of data storage device or electronic or optical medium containing Retailer Data beyond Zippin’s logical or physical controls or those of Zippin’s Third Party Provider; or (iv) electronically transferring Retailer Data outside of Zippin’s or its third party data storage provider’s network.

8.3.7            Zippin has in place, and complies with, a comprehensive written information security program that (A) complies with Applicable Law; (B) is reviewed on an annual basis or upon a material change in Zippin’s business practices; and (C) identifies a person within Zippin’s senior management who is responsible for privacy and data security matters. The Services have been designed, developed, and tested according to best industry practices in order to appropriately safeguard the Services and any Retailer Data against unauthorized access and/or interference by third parties, intrusion, theft, destruction, loss or alteration.

8.3.8            The Parties will agree to any additional commitments regarding cyber security, privacy or personal data as may be required by Applicable Law at each Location. Such additional commitments will be set out or referenced in the Order Form applicable to each such Location(s).

ARTICLE 9
REPRESENTATIONS AND WARRANTIES

9.1 Representations and Warranties of the Parties

Each Party represents and warrants in favor of the other Party as follows:

9.1.1            it is duly incorporated, amalgamated or continued, and existing, under the laws of the jurisdiction of its incorporation, amalgamation or continuance, and has all necessary corporate power, authority and capacity to enter into and fully perform its obligations under this Agreement;

9.1.2            it has taken all necessary corporate action to authorize the execution and delivery by it of its obligations under this Agreement;

9.1.3            it has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms, subject only to bankruptcy, insolvency, liquidation, reorganization, moratorium and other similar laws generally affecting the enforcement of creditors’ rights, and to the fact that equitable remedies, such as specific performance and injunction, are discretionary remedies;

9.1.4            the execution and delivery by it of this Agreement, and the performance of its obligations under this Agreement, do not and will not breach or result in a default under: (i) any of its constating documents; (ii) any Applicable Law to which it is subject; or (iii) any contract or covenant by which it is bound;

9.1.5            there is no action, litigation or other proceeding in progress, pending or, to its knowledge, threatened against it which might result in a material adverse change in its financial condition or which would materially adversely affect its ability to perform its obligations under this Agreement; and

9.1.6            it will at all times comply with all Applicable Law applicable to its activities, duties and obligations hereunder, (including applicable United States export laws and regulations) and it will maintain all licenses, permits, authorizations, and other permissions necessary to provide or use the Services, or otherwise required in connection with the performance of its obligations under this Agreement.

9.2 Representations and Warranties Continuously Given

All representations and warranties of the Parties will be deemed to be continuously given throughout the Term.

9.3 Disclaimer of Warranties

EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, ZIPPIN MAKES NO REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.  EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING THE PROPRIETARY OFFERINGS AND ANY EQUIPMENT ARE PROVIDED “AS-IS” AND ZIPPIN DISCLAIMS ANY REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES WILL BE UNINTERRUPTED OR ERROR FREE.

ARTICLE 10
INSURANCE

10.1 Zippin Insurance Coverage

10.1.1         During the Term of this Agreement Zippin shall maintain (at its own cost and expense) adequate insurance coverage, from an insurance carrier with a policyholders’ rating of not less than A- and a financial rating of not less than VII.

10.2 Retailer Insurance Coverage

10.2.1         During the Term of this Agreement Retailer shall maintain (at its own cost and expense) adequate insurance coverage from an insurance carrier with a policyholders’ rating of not less than A- and a financial rating of not less than VII.

ARTICLE 11
INDEMNIFICATION

11.1 Indemnification

11.1.1         Subject to the terms of this Agreement, Zippin will indemnify, defend, and hold harmless Retailer and its directors, officers, employees and permitted assigns (collectively the “Retailer Indemnitees”) from and against any and all Loss resulting from:

(a)          Zippin’s negligence or willful misconduct;

(b)          for personal injuries and deaths, and any property damages, to the extent caused by or arising from the conduct of Zippin, or its employees, agents or contractors in the performance of its obligations under this Agreement,

(c)          infringement of any third party Intellectual Property related to Proprietary Offerings; or

(d)          a security breach caused by Zippin’s negligence or willful misconduct;

provided that

(e)          Retailer promptly notifies Zippin of such Loss,

(f)           Zippin will have the sole control of the defense and/or settlement thereof (provided, however that the Zippin will not enter into any settlement agreement that would result in any admission or payment by the Retailer Indemnitees without the Retailer Indemnitees’ prior written consent), and

(g)          Retailer furnishes to Zippin, upon Zippin’s reasonable request, all information available to Retailer for such defense.

11.1.2         Zippin will have no liability under this Section to the extent that the alleged infringement is based on: 

(a)          the unauthorized or unapproved modification of the Proprietary Offerings by anyone besides Zippin or its authorized agents;

(b)          any use of the Proprietary Offerings not in compliance with the Documentation or this Agreement;

(c)          any combination, operation or use of the Proprietary Offerings with products, service or data not furnished or approved in writing by Zippin; 

(d)          Retailer’s use of the Proprietary Offerings after notice of the alleged or actual infringement from Zippin or an appropriate authority;

(e)          any Intellectual Property owned or licensed by Retailer, excluding the Proprietary Offerings licensed to Retailer pursuant to this Agreement; 

(f)           Zippin’s compliance with any designs, specifications or instructions required by Retailer unless agreed by Zippin;

(g)          use of any older release or version of the Proprietary Offerings when use of a newer release, update or version would have avoided the infringement and where (i) Retailer disabled or prevented a newer release, update or version of the Software from being automatically deployed or installed; or (ii) a new release, update or version of the Proprietary Offering in question was made freely available to Retailer for at least [3] months prior to such infringement; or

(h)          open source software.

11.1.3         If the Proprietary Offerings become, or (in Zippin's opinion) are likely to become, the subject of any such third party claim, then Zippin (at its sole cost and expense) may either:

(a)          procure the right for Retailer to continue using the Proprietary Offerings as contemplated hereunder;

(b)          modify the Proprietary Offerings to render them non-infringing; or

(c)          replace the Proprietary Offerings with equally suitable, functionally equivalent, compatible, non-infringing Proprietary Offerings. 

11.1.4         If none of the foregoing are commercially practicable despite Zippin’s commercially reasonable efforts and if Retailer is not permitted to continue using the Proprietary Offerings, then Retailer will be entitled to terminate this Agreement and any corresponding Order Form for the infringing Proprietary Offerings (in accordance with Section 3.2.1) and receive a pro-rata refund of that portion of the License Fees paid for the infringing Proprietary Offerings which would have been applicable to the remaining portion of the applicable Subscription Term after the effective date of such termination.

11.1.5         THIS SECTION STATES THE Retailer INDEMNITEES’ SOLE AND EXCLUSIVE REMEDY AND ZIPPIN’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS RELATING TO THIRD PARTY INTELLECTUAL PROPERTY.

11.2 Indemnification by Retailer

The Retailer agrees to defend, indemnify and hold harmless Zippin, its agents or employees, from and against any Loss sustained or incurred by Zippin, its agents or employees, which arises or results directly from the breach by the Retailer of any representation, warranty or covenants contained in this Agreement.

11.3 Limitation of Liability

11.3.1         NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES SUFFERED BY THE OTHER PARTY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).  

11.3.2         IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE DAMAGES EXCEED THE AMOUNT ACTUALLY PAID BY Retailer TO ZIPPIN UNDER THIS AGREEMENT IN THE MOST RECENT TWELVE (12) MONTH PERIOD PRIOR TO THE ACTS GIVING RISE TO SUCH DAMAGES AND/OR THIRD PARTY CLAIM.

SCHEDULE A
DEFINITIONS AND INTERPRETATION

1. Definitions

In this Agreement, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

(a)        “Affiliate” means, with respect to either Party, any Person directly or indirectly controlling, controlled by, or under common control with, such Party.

(b)        “Aggregated Statistics” means data and information related to the use of the Proprietary Offerings by Retailer or End Users, and where such data is used by Zippin in an aggregated and anonymized manner, including compiled statistical and performance information related to the provision and operation of the Proprietary Offerings.

(c)        “Agreement”  means the following: (i) these General Terms and Conditions, (iv) the applicable Order Form entered into by the Parties, and (iii) all applicable Schedules (in accordance with the selections made on the applicable Order Form), as each may be confirmed, amended, modified, supplemented or restated by written agreement between the Parties.

(d)        “Applicable Law” means, at any time, with respect to any Person, property, transaction or event, all applicable laws, statutes, regulations, treaties, judgments and decrees and (whether or not having the force of law) all applicable official directives, rules, consents, approvals, by-laws, permits, authorizations, guidelines, orders and policies of any Governmental Authority having authority over that Person, property, transaction or event.

(e)        “Confidential Information” is defined in Section 7.1.1.

(f)        “Retailer” means the Party designated as such in the Order Form, or any of its Affiliates requesting Services by way of an Order Form in accordance with Section 2.3. In such case, “Retailer” means the Party designated as such on the applicable Order Form.

(g)        “Retailer Data” means all data, audio, video, and images submitted or uploaded by Retailer or collected by the Equipment and Processed or stored by the Proprietary Offerings. For certainty, Retailer Data may also include Personal Information, as applicable.

(h)          “Data Security Breach” means a breach of Zippin’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Retailer Data or any Personal Information Zippin may collect in connection with providing the Services.

(i)          “Deliverables” means any deliverables specified or referred to in the applicable Order Form, as the desired result of the Services.

(j)        “Documentation” means all technical manuals and end user documentation made generally available by Zippin to Retailer with respect to the Services and Software, as may be updated from time to time by Zippin.

(k)          “End-User” means any Person who is a shopper, Retailer or client of the Retailer using the Zippin Checkout-Free Shopping Platform at a Retailer Location.

(l)       “Equipment” means the computer hardware, video hardware, access control hardware and other tangible items provided by Zippin, used or related to the performance of Services, or necessary for the functionalities of the Software in order to allow End-Users to conduct in-person retail transactions at a Location. 

(m)        “Equipment Costs” means the costs, charges and fees payable by Retailer with respect to the Equipment and the Equipment Services, as specified in the applicable Order Form and in accordance with the applicable Service Schedule.

(n)        “Equipment Services” means the Services described in Schedule D, which may include Procurement & Supply Services, Installation Services, and Repair & Replacement Services, as selected on the applicable Order Form.

(o)        “Feedback” is defined in Section 6.1.3. 

(p)         “Fees” means all the fees payable by Retailer to Zippin for the Services, as specified in the applicable Order Form and in accordance with the applicable Service Schedule. The term “Fees” includes License Fees and Equipment Costs, as applicable.

(q)        “General Terms and Conditions” means this document standing alone.

(r)         “Governmental Authority” means: (i) any federal, provincial, state, local, municipal, regional, territorial, aboriginal, or other government, governmental or public department, branch, ministry, or court, domestic or foreign, including any district, agency, commission, board, arbitration panel or authority and any subdivision of any of them exercising or entitled to exercise any administrative, executive, judicial, ministerial, prerogative, legislative, regulatory, or taxing authority or power of any nature; and (ii) any quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of them, and any subdivision of any of them.

(s)        “Initial Term” is defined in Section 3.1.

(t)        “Intellectual Property” means all proprietary rights, including all patents, trademarks, copyrights, moral rights, know-how, trade secrets, mask works, rights in ideas, rights in inventions, trade names, brand names, domain names, service marks, works of authorship, trade dress, strategies, plans, designs, data rights, database rights, proprietary information created, discovered or developed, including all applications and registrations thereto, and any other similar protected rights in any country.

(u)       “License Fees” means the license fees due to Zippin for Retailer’s use of the Software and related Proprietary Offerings during the applicable Subscription Term, as specified in the applicable Order Form and in accordance with the applicable Service Schedule.  

(v)        “Location” means a unique physical location at which Retailer is authorized to use the Proprietary Offerings to conduct in-person retail transactions at such location.

(w)        “Loss” means any and all loss, liability, damage, cost, charge, fine, penalty or assessment, claim, counterclaim, suit, demand, action, causes of action, setoffs, liens, attachments, judgments, settlement, and all interest, debts, or other expenses, and any reasonable attorneys’ fees and court costs.

(x)        “Notice” means any notice, demand, request, consent, approval or other communication which is required or permitted by this Agreement to be given or made by a Party.

(y)     “Order Form” means the Order Form (substantially in the form provided by Zippin) executed by Zippin and Retailer subject to this Agreement which specifies the Services to be performed by Zippin (including with respect to the Equipment), the Location(s), the Proprietary Offerings being provided to Retailer, the Subscription Term, the applicable Fees, costs and charges, and any additional mutually-agreed terms and conditions. The Order Form also sets out which Service Schedules (and applicable Schedule Options, as necessary) apply to the specific Order Form.

(z)     “Parties” means Zippin and the Retailer as identified on the applicable Order Form (in accordance with Section 2.3), collectively, and “Party” means any one of them.

(aa)      “Permitted Use” means the Retailer’s use of any Services to conduct in-person retail transactions as expressly authorized by Zippin and in accordance with the Document and all applicable instructions provided by Zippin, or as otherwise set out in an Order Form.

(bb)     “Person” will be broadly interpreted and includes: (i) a natural person, whether acting in their own capacity, or in their capacity as executor, administrator, estate trustee, trustee or personal or legal representative, and the heirs, executors, administrators, estate trustees, trustees or other personal or legal representatives of a natural person; (ii) a corporation or a company of any kind, a partnership of any kind, a sole proprietorship, a trust, a joint venture, an association, an unincorporated association, an unincorporated syndicate, an unincorporated organization or any other association, organization or entity of any kind; and (iii) a Governmental Authority.

(cc)     “Personal Information” means any information relating to identifiable individuals, including, without limitation, name, address, phone number, payment card, geolocation data.

(dd)        “Process” or “Processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

(ee)     “Proprietary Offerings” means, collectively, Zippin’s Checkout-Free Shopping Platform, including the Software, Deliverables, Documentation, Software Services, any Proprietary Equipment (if any), and all Intellectual Property in and to the foregoing, as well as the data, results or interpretations generated by or with the Software and/or its algorithms (whether or not delivered to Retailer).

(ff)     “Representatives” means the Affiliates of a Party, and the advisors, agents, consultants, directors, officers, management, employees, subcontractors, and other representatives, including accountants, auditors, financial advisors, lenders and lawyers of a Party and of that Party’s Affiliates.

(gg)         “Schedule Options” means the selections made by the Parties on each Order Form with respect to the various options or alternatives set out in the Service Schedules.

(hh)         “Services” means retailing and/or professional services to be performed by Zippin as specified in the applicable Order Form in accordance with the terms set out in the applicable Service Schedule, as well as the Additional Services, if any.

(ii)     “Service Schedule” means the applicable Software Services Schedule and the Equipment Services Schedule, attached to the applicable Order Form as Schedule C and Schedule D, respectively, and any other Schedule entered into by the Parties setting out any specific Services to be performed by Zippin. The Service Schedules (and related Schedule Options) applicable to an Order Form shall be set out in each Order Form and attached thereto.

(jj)   “Software” means Zippin’s proprietary retailing software (known as the Checkout-Free Shopping Platform) which is installed on Equipment at the Location(s) or otherwise used in performing the Services, including but not limited to the object code version of such software, any related Intellectual Property. proprietary code, algorithm, calculations, trade dress, presentation, layout, appearance, visual displays, applications, graphical user interface, application programming interface, as well as all modifications, enhancements, improvements and derivative works thereof including. For clarity, Software also includes Zippin mobile application, which may be subject to a separate end user license agreement.

(kk)     “Software Services” means the Services described in Schedule C, which includes the Software Licensing and the Technical Support Services as selected on the applicable Order Form.

(ll)     “Start Date” means the first day of the Subscription Term, as set out in the applicable Order Form or as otherwise agreed to by the Parties.

(mm)     “Subcontractor” means a party that Zippin or Retailer (as applicable) engages to perform all or a part of the Services.

(nn)     “Subscription Term” means the period of time (including any renewals) set out on the applicable Order Form and beginning on the Start Date (as more particularly defined in the Software Services Schedule), for which Retailer shall be entitled to the Software Licensing at the specified Location(s).

(oo)        “Technical Support Services” means the portion of the Software Services comprising the technical support and maintenance with respect to the Software, performed by Zippin and made generally available to the Retailer in accordance with the terms of the applicable Service Schedule.

(pp)      “Term” means the Initial Term and each renewal, if any.

2. Certain Rules of Interpretation

(a)        In this Agreement, words signifying the singular number include the plural and vice versa, and words signifying gender include all genders. Every use of the words "including" or “includes” in this Agreement is to be construed as meaning “including, without limitation” or "includes, without limitation", respectively.

(b)        The division of this Agreement into Articles and Sections, the insertion of headings and the inclusion of a table of contents are for convenience of reference only and do not affect the construction or interpretation of this Agreement. References in this Agreement to an Article, Section, or Schedule are to be construed as references to an Article, Section, or Schedule of or to this Agreement unless otherwise specified.

(c)        Unless otherwise specified in this Agreement, time periods within which or following which any calculation or payment is to be made, or action is to be taken, will be calculated by excluding the day on which the period begins and including the day on which the period ends. If the last day of a time period is not a Business Day, the time period will end on the next Business Day.

(d)        Unless otherwise specified, any reference in this Agreement to any statute includes all regulations and subordinate legislation made under or in connection with that statute at any time, and is to be construed as a reference to that statute as amended, modified, restated, supplemented, extended, re-enacted, replaced or superseded at any time.

3. Entire Agreement

This Agreement, and any other agreements and documents to be delivered under this Agreement, constitutes the complete and exclusive agreement between the Parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, communications, negotiations and discussions, whether oral or written, of the Parties regarding such subject matter.

SCHEDULE B
GENERAL PROVISIONS

1. Governing Law

This Agreement will be governed by, construed and interpreted in accordance with the laws of the State of California without regard to conflict of laws principles.  This Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California.  If Retailer is outside of the United States, the parties agree that rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.

2. Submission to Jurisdiction

Zippin and Retailer submit to and hereby unconditionally and irrevocably waive any objection to the exclusive personal jurisdiction of, and that venue is proper in, any federal or state court in San Francisco County, California.

3. Dispute Resolution

All disputes, disagreements, controversies, questions or claims between the Parties arising out of or relating to this Agreement will be resolved through binding arbitration. Arbitration will be: (i) determined by a single arbitrator; (ii) conducted pursuant to the American Arbitration Association’s rules applicable to commercial disputes; and (iii) will be held in the City and County of San Francisco, California.

4. Time of Essence

Time is of the essence in all respects of this Agreement

5. Notices

(a)          Any Notice must be in writing and either: (i) delivered personally or by courier; (ii) sent by prepaid registered mail; or (iii) transmitted by facsimile, e-mail or functionally equivalent electronic means of transmission, charges (if any) prepaid.

(b)          Any Notice to:

(i)                   Retailer with respect to this Agreement must be sent to the address identified on the Order Form;

(ii)                  Retailer with respect to an Order Form of any particular Services set out therein must be sent to the address identified on the applicable Order Form;

(iii)                 Zippin must be sent to the following address:

Vcognition Technologies, Inc dba Zippin
35 Miller Ave, Unit # 585
Mill Valley, CA 94941

or at any other address as any Party may at any time advise the others by Notice given or made in accordance with this Section. Any Notice delivered to the Party to whom it is addressed will be deemed to have been given or made and received on the day it is delivered at that Party’s address, provided that if that day is not a Business Day then the Notice will be deemed to have been given or made and received on the next Business Day. Any Notice transmitted by facsimile, e-mail or other functionally equivalent electronic means of transmission will be deemed to have been given or made and received on the day on which it is transmitted; but if the Notice is transmitted on a day which is not a Business Day or after business hours (local time of the recipient), the Notice will be deemed to have been given or made and received on the next Business Day.

(iv) Service of process should be sent to:

Vcognition Technologies, Inc
℅ CT Corporation System
330 North Brand Blvd., Suite 700
Glendale, California 91203

AND a copy (which shall not constitute notice) to:

Wilson Sonsini Goodrich & Rosati, P.C.
Attn: Allison B. Spinner; Christina Poulsen
650 Page Mill Road
Palo Alto, CA 94304

6. Severability

If any provision of this Agreement, in whole or in part, is held by a court of competent jurisdiction to be contrary to law or otherwise invalid, void, or unenforceable, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect.

7. Amendment and Waiver

No amendment, discharge, modification, restatement, supplement, termination or waiver of this Agreement or any Section of this Agreement is binding unless it is in writing and executed by the Party to be bound. Failure by a Party to enforce any term of this Agreement shall not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the Parties, nor does any waiver constitute a continuing waiver unless otherwise expressly provided.

8. Contractual Statute of Limitations

No claim, demand, or cause of action that arose out of an event or events that occurred more than [•] year(s) before filing of the claim, demand or cause of action with a court of competent jurisdiction may be asserted by either Party against the other.

9. Further Assurances

Each Party will, at that Party’s own cost and expense, execute and deliver any further agreements and documents and provide any further assurances, undertakings and information as may be reasonably required by the requesting Party to give effect to this Agreement and, without limiting the generality of this Section, will do or cause to be done all acts and things, execute and deliver or cause to be executed and delivered all agreements and documents and provide any assurances, undertakings and information as may be required at any time by all Governmental Authorities having jurisdiction over the affairs of a Party or as may be required at any time under Applicable Law.

10. Assignment and Enurement

Neither this Agreement nor any right or obligation under this Agreement may be assigned by any Party without the prior written consent of the other Party, except that either Party may assign this Agreement in its entirety without such prior written consent to any parent entity or subsidiary entity of such Party, or to such Party’s successor in interest in connection with a merger, acquisition, reorganization, or change of control of such Party, or the sale of substantially all of such Party’s assets to which this Agreement pertains. Any attempt to assign this Agreement in whole or in part without the other Party’s prior written consent is void. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.

11. Third Party Beneficiaries

This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party. 

12. Electronic Signatures and Delivery

This Agreement and any counterpart of it may be: (i) signed by manual, digital or other electronic signatures; and (ii) delivered or transmitted by any digital, electronic or other intangible means, including by e-mail or other functionally equivalent electronic means of transmission, and that execution, delivery and transmission will be valid and legally effective to create a valid and binding agreement between the Parties.

13. Counterparts

This Agreement may be signed and delivered by the Parties in counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same agreement, and that execution and delivery will be valid and legally effective.

14. No Contra Proferentem

This Agreement has been reviewed by each Party’s professional advisors, and revised during the course of negotiations between the Parties. Each Party acknowledges that this Agreement is the product of their joint efforts, that it expresses their agreement, and that, if there is any ambiguity in any of its provisions, no rule of interpretation favoring one Party over another based on authorship will apply.

SCHEDULE C
SOFTWARE SERVICES

The following Software Services Schedule sets out the terms and conditions applicable to the provision of Software Services by Zippin to Retailer, including with respect to the Software Licensing and the Technical Support Services. The Support Package applicable to a given Order Form shall be selected on such Order Form and/or reflected in the applicable operating procedure if applicable. Capitalized terms used in this Software Services Schedule but not otherwise defined, have the same meanings as in the General Terms and Conditions governing the applicable Order Form. 

The following terms may be updated from time to time at the discretion of Zippin, provided that any such update does not materially reduce the overall level of service provided to Retailer as described herein. In the event of any conflict between the provisions of this Software Services Schedule and the operating procedure if applicable, the Operating Procedure shall supersede.

1. General

1.1 Software Licensing: The Software Licensing granted to Retailer in the applicable Order Form is granted for the Subscription Term and is subject to the terms and conditions of this Agreement. Such Software Licensing includes, namely, Retailer’s access to the Zippin Dashboard (the “Dashboard”).

1.2 Software Subscription Term: Unless otherwise set forth in the applicable Order Form, the Subscription Term shall begin on the Start Date specified on the Order Form, and will continue, unless terminated in accordance with this Agreement, for an initial term of one (1) year (the “Initial Subscription Term”) and will automatically renew for subsequent one (1) year terms (each a “Renewal Subscription Term”) unless either Party provides written notice of non-renewal at least ninety (90) days prior to the end of the then-current term. The Initial Subscription Term and any Renewal Subscription Terms are together referred to herein as the “Subscription Term”. Unless otherwise set forth in the applicable Order Form, the “Start Date” is the date on which Retailer gains access to the Zippin Dashboard.

1.3 Software Service Fees: The Fees payable for the Software Services include a License Fee, which will be set out on the Order Form(s). Unless otherwise set out in the applicable Order Form, (i) the License Fees will be paid in advance and on an annual basis; and (ii) the base Fees payable for the Technical Support Services will be paid on an annual in accordance with the applicable Support Package, and any additional Fees (such as disbursements) will be invoiced on a monthly basis as needed, and will depend on the applicable Support Package selected by the Retailer.

1.4 Delivery of Software and Open Source Components: Zippin will deliver the Software to Retailer electronically or on tangible media. The Software will be deemed to be accepted upon delivery. The Software may include individual open source software components, each of which has its own copyright and its own applicable license terms, but will not be subject to license terms which mandate re-licensing of other software with which the Software is installed (so-called “copyleft” licenses).  Zippin will provide copies of such license terms upon request.

1.5 Operating Procedure: The Parties may work together to develop an Operating Procedure applicable to each separate Location, setting out standard processes and procedures with respect to, namely, general usage of Zippin Software, diagnostics, technical support and troubleshooting, maintenance and repair, training of Retailer personnel, and interactions with End-Users. Such Operating Procedure will set out procedures with respect to both Software and Equipment-based Services, as applicable for each particular Location, in accordance with the Support Package agreed to by the Parties, and taking into account Retailer’s internal procedures to the extent possible.

1.6 Support Packages: The Retailer will subscribe to a specific Support Packages on the applicable Order Form. The description of each Support Package is set out in Section 6 of this Service Schedule.

1.7 Software Updates and Maintenance Releases

1.7.1. A “Software Update” is a patch, workaround, improvement, correction, modification or derivative to the Software that is implemented remotely, automatically or manually, or otherwise made generally available to Retailer by Zippin as part of the Software Services.

1.7.2. A “Maintenance Release” is a set of related or unrelated bug fixes that Zippin makes generally available to the Retailer as part of the Software Services.

1.7.3. Maintenance Releases and Software Updates will be deemed part of the Software upon release to Retailer, and Retailer’s access and use of Maintenance Releases and Software Updates will be subject to the same Software Licensing terms.

1.8 Retailer Support Dashboard: Zippin will enable a Retailer to access the Dashboard using their email address.  Retailer will use the Dashboard only for supporting its Permitted Use of the Software.  Retailer will maintain reasonable password security with respect to the username and password used to access the Dashboard, and will immediately report to Zippin upon becoming aware of any breach of security by the Retailer, and will reinstate the Dashboard promptly upon resolution.  Zippin will have the right to terminate or suspend, in its discretion, Retailer’s access to the Dashboard in the event of any security breach.  Retailer acknowledges that Zippin will be entitled to track usage and other statistics on the Dashboard, which shall be deemed Aggregated Statistics, which may be used by Zippin in accordance with the terms of this Agreement.

1.9 Retailer Duties and Responsibilities

1.9.1 Equipment: Retailer will be responsible for ensuring that all Equipment is purchased, installed and maintained in a manner consistent with the Operating Procedure and any instructions or requirements provided by Zippin. Subject to the terms and conditions of any Equipment Services provided by Zippin with respect to the applicable Location, Zippin will not be liable for any delays or interruptions to the Software Services at such Location in the event that the Equipment is purchased, installed and maintained in a manner that is not consistent with the Operating Procedure or with the instructions or requirements provided by Zippin.

1.9.2 Maintenance: Retailer will: use the Software in a proper manner by competent, trained personnel, in accordance with the Documentation and the Operating Procedure; and implement all Software Updates, Maintenance Releases, and Error corrections and workarounds in a timely manner to be at the most current release of the Software (or at most one release back).

1.9.3 Remote Access: At Zippin’s request and in accordance with the applicable Operating Procedure, Retailer will allow Zippin remote access to the Retailer’s network on which the Software is running, to enable Zippin to perform remote diagnosis and applicable Software Services.

1.9.4 Notification of Errors: Unless otherwise set out in the applicable Operating Procedure, Retailer will notify Zippin promptly regarding Errors with reasonable detail so that Zippin can reproduce the Error.  Retailer will provide as complete a description of the Error as it can, including, if applicable, a description of any physical indicator of injury, such as a LED, alarm, or event on management station on the Covered Products, system log files or any other reasonable information requested by Zippin to diagnose reproducible Errors.

1.9.5 Cooperation: In compliance with the applicable Operating Procedure, Retailer will provide Zippin with reasonable cooperation and assistance, including working with our remote support team to conduct simple fixes, and with information as is reasonably requested by Zippin in connection with the performance of the Software. 

1.9.6 Designated Contact: Retailer will designate a primary contact and an alternate contact in connection with the Software Services. The initial contact persons will be identified on the applicable Order Form, and may be changed upon prior notice to Zippin.  These contact persons will promptly notify Zippin of Errors, provide the information set forth in Section (xviii) of this Software Schedule, and perform additional duties, including but not limited to system restarts, logging, and running of operational readiness tasks, as may be reasonably requested by Zippin. The Retailer’s designated contact(s) must be identified during the implementation and start-up phase and included in the applicable Operating Procedure.

1.9.7 Data Backups: Retailer will be responsible for maintaining back-up copies of all data residing in or relying in any way on Retailer network or systems. Zippin will have no liability or responsibility for the loss of any data during the provision of any Software Services.

2. Implementation and Start Up

2.1 Zippin will complete initial implementation and start-up of the Software and related Equipment at each Location as part of the Software Services. Unless otherwise set out in the applicable Order Form, a one-time implementation Fee for each Location will be payable by Retailer as part of the Software Services Fees. Details regarding the implementation and start-up phase, including any necessary diagnostics, calibration or system troubleshooting, will be set out in the applicable Operating Procedure. The Operating Procedure will also set out the roles and responsibilities of the Parties.

2.2 Retailer acknowledges and agrees that Zippin’s ability to complete initial implementation and start-up of the Software and related Equipment at each Location is dependent on Zippin’s scheduling availabilities and capacity. On this basis, in the event that the agreed upon timeframe for implementation and/or the Location Launch Date is delayed for any reason outside of Zippin’s control (including due to any delays with respect to Retailer’s purchase and/or installation of Equipment, access to the Location, availability of internet at the Location, receipt of necessary approvals or permits or otherwise), Retailer will be required to notify Zippin of such delay as soon as possible. Zippin will make commercially reasonable efforts to reschedule the implementation and start-up of such Location as soon as possible, and Retailer will be liable for any direct costs incurred by Zippin as a result of such delay or rescheduling.

3. Training

3.1 At the beginning of the Subscription Term for a given Location and at no additional cost to Retailer, Zippin will facilitate initial onboarding and provide introductory training of Retailer’s designated employee at such Location. Any additional training beyond such initial onboarding, including any training of new or additional personnel, will be charged to Retailer in accordance with Zippin’s then-current rates. Details regarding the training will be set out in the applicable Order Form and/or Operating Procedure, as applicable.

4. Software Availability Commitment

4.1 Zippin is committed to providing reliable retail hosting services to the Retailer. On this basis and unless otherwise set out in the applicable Operating Procedure, Zippin guarantees at least 99.9% Availability of its Software, measured on a calendar month basis (the “Availability Commitment”), in accordance with the following:

4.1.1 “Availability” is defined as the Software being available at Zippin’s point of presence or API endpoint, excluding actual downtime:

4.1.1.1 for up to four (4) hours of scheduled maintenance per calendar month, performed during the regular planned maintenance window as Zippin may reasonably designate from time to time, provided that such window(s) are not scheduled Monday through Friday from 5 a.m. to 11 p.m. PT;

4.1.1.2 for emergency maintenance of the Software, of which Zippin will notify Retailer as soon as is practicable but will first endeavor to remedy the emergency;

4.1.1.3 caused by acts or omissions of Retailer, including where such acts or omissions of Retailer results in an unauthorized third party gaining access to the Software through Retailer’s usernames and passwords;

4.1.1.4 caused by Retailer’s Equipment, hardware and network services, which components are controlled by Retailer or whose performance or failure to perform can impair Retailer’s connections to the Internet and the transmission of data; and

4.1.1.5 caused by Force Majeure (as defined in the Agreement).

4.1.2 Software Availability Monitoring: Zippin has 24/7 monitoring and alerting with respect to Software Availability, in addition to conducting routine checks in order to confirm that the Software is operating normally.

4.1.3 Services Credits: If the Software fails to meet the Availability Commitment, the following will apply:

4.1.3.1 Retailer will report the failure to Zippin within fifteen (15) days of the end of the affected calendar month, requesting a service credit, in accordance with this Section. Such written requests must include reference to the applicable Location and the dates and times of Software unavailability.

4.1.3.2 To the extent that Availability falls below the Availability Commitment in any given month, Zippin shall issue a service credit to Retailer that may be applied towards future Software Services at the specific Location where the Availability issues occurred, in accordance with the table below:

4.1.3.3 To receive a service credit for failure of Software to meet the Availability Commitment, Retailer must (a) be current in payment of all amounts it owes to Zippin related to the applicable Location; and (b) have complied in all material respect with the relevant procedures set out in the Operating Procedure . Zippin will compare information provided by Retailer with the Software Availability monitoring data Zippin maintains. A service credit is issued if Zippin can confirm from the monitoring data the Software Availability warranting the refund.

4.1.3.4 If the Software fails to meet the Availability Commitment for three (3) consecutive calendar months, or the Availability falls to or below 90% for any given month, then no later than thirty (30) days following the conclusion of (i) the third consecutive calendar month (in the first case), or (ii) the month in which Availability fell to or below 90% (in the second case), as applicable, Retailer may terminate the Agreement by giving Zippin at least thirty (30) days prior written notice of termination, without liability for any cancellation fees, penalties or other damages associated with termination, and Retailer shall be entitled to a refund of unearned, prepaid License Fees, if any, prorated from the effective date of such termination through to the end of the applicable prepaid period.

4.1.3.5 Notwithstanding anything else contained in this Agreement, the remedies stated in Section (ii) of this Software Schedule are Retailer’s sole and exclusive remedies for Zippin’s failure to meet the Availability Commitment specified herein.

5. Technical Support Services

5.1 Service Modifications: Subject to the terms of this Agreement, Zippin reserves the right to add, change, or revise available Technical Support Services or the specifics of the Support Packages in its reasonable discretion upon 90 days notice.  Any additions, changes or deletions which may have a material impact on the Retailer’s operations must be agreed to in advance by the Retailer.

5.2 Technical Assistance Support Center: During the Support Hours identified in the applicable Support Package, Zippin will use commercially reasonable efforts to provide Retailer with assistance to diagnose and resolve technical problems with the Software through the Dashboard, or by any other means agreed to by the Parties. 

5.3 Response Times and Error Corrections:  Retailer may report to Zippin any failure of the Software to substantially conform to their published specifications (“Error”). Upon such report, an Error ticket will be generated.  Zippin will respond to each ticket within the Response Time specified in the applicable Support Package, to gather initial or additional information about the Error. In accordance with this Section, Zippin will use commercially reasonable efforts to correct or minimize the adverse effect of any reproducible and demonstrable Error reported to Zippin by Retailer, in a manner commensurate with the severity of the Error.  For the Basic Support Package, these corrections may include providing Retailer with bug fixes as soon as they are reasonably available.

5.4 Limitations on Support and Error Corrections: The Technical Support Services to be provided in accordance with this Schedule are limited to addressing problems that are demonstrable and reproducible.  Zippin makes no commitment, representation, or guarantee regarding the amount of time it will take to diagnose or resolve a problem once it is brought to Zippin’s attention.  Except as expressly stated in this Agreement, Zippin will have no obligation to correct errors in or failures of the Software.

6. Support Packages

6.1 The Parties may agree on additional support packages or support Services, which will be set out in the applicable Order Form and/or be reflected in the applicable Operating Procedure.

7. Troubleshooting and Diagnostics

7.1 To ensure that all technical problems with the System are resolved in a timely manner, Zippin will implement and follow the procedures set out in the applicable Operating Procedure. Unless otherwise set out in the applicable Operating Procedure, Zippin’s priority scale and target response times in the event of an issue with the Software are set out in the table below.  Zippin’s response times to technical support issues depends on a number of factors, including, the complexity and severity of the issue, the necessary escalation, research or testing of the issue, the volume of support requests, and the applicable Support Package. Zippin will not be liable for any failure or delay to correct or solve any issues with the Software, or any failure to meet the response time set out in the table below, provided that Zippin complied in all material respects with the Operating Procedure.

7.2 Retailer acknowledges and agrees that Zippin’s ability to resolve any technical problems within a given timeframe depends on Retailer’s cooperation and compliance with the applicable Operating Procedure.

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8. Support to Third Party Vendors and Resolution of Third Party Issues

8.1 In the event Retailer requires Zippin to provide technical support to third party vendors (of either software or Equipment), Zippin shall make commercially reasonable efforts to provide all such support services required by Retailer, in accordance with the applicable Operating Procedure. Upon a preliminary determination by Zippin that the issue in question requires Zippin to work on third party Equipment, Retailer’s network or other software or systems other than the Software, or requires Zippin to coordinate with third party vendors (each such issue being a “Third Party Issue”), the Parties will jointly establish and agree to a plan to resolve such Third Party Issue on an issue-by-issue basis, including whether any onsite visits from Zippin will be required or any additional costs may be payable by Retailer to Zippin for such work. The Parties may set out the processes and associated costs for Zippin’s resolution of Third Party Issues in the applicable Operating Procedure.

SCHEDULE D
EQUIPMENT SERVICES

Equipment Services may include Services with respect to Procurement & Supply, Installation, and Maintenance (including repair and warranty protections, as applicable). The Parties shall indicate on the Order Form the applicable Schedule Options selected in each of the Equipment Service categories set out below.

Maintenance Services will be provided on the basis of the applicable Support Package purchased by Retailer. The Support Package applicable to a given Location will be reflected on such on the applicable Order Form and taken into consideration in preparing the Operating Procedure applicable to such Location.

In the event of any conflict between the provisions of this Equipment Services Schedule and the applicable Order Form, the Order Form will supersede. Capitalized terms used in this Equipment Services Schedule but not otherwise defined herein, have the same meanings as in the General Terms and Conditions governing the applicable Order Form.

A. General Retailer Responsibilities.

Zippin’s obligation to perform the any of the following Equipment Services in accordance with the applicable Operating Procedure and/or Support Package is conditioned on the following:

(a)        General Maintenance: Retailer will:

(i)          maintain the Location and/or applicable installation site in accordance with the applicable specifications for the Equipment and any instructions or requirements provided by Zippin;

(ii)         maintain the Equipment and the operating environment for the Equipment in good working order and in accordance with the Operating Procedure, the specifications in the Documentation or other instructions materials for the Equipment and any instructions or requirements provided by Zippin;

(iii)        use the Equipment in a proper manner by competent, trained personnel and in accordance with the Operating Procedure; and

(iv)       comply in all material respects with the terms of the Software Services being provided by Zippin at the applicable Location, including to implement all Software Updates, Maintenance Releases, and Error corrections and workarounds in a timely manner to be at the most current release of the product (or at most one release back).

(b)        Remote Access: At Zippin’s request and in accordance with the applicable Operating Procedure, Retailer will allow Zippin remote access to the Equipment and to Retailer’s network on which the Equipment is connected, to enable Zippin to perform remote diagnosis and applicable Equipment Services.

(c)        Notification of Errors: Retailer will notify Zippin promptly regarding Errors with reasonable detail so that Zippin can reproduce the Error.  Retailer will provide as complete a description of the Error as it can, including, if applicable, a description of any physical indicator of injury, such as a LED, alarm, or event on management station on the Equipment, system log files or any other reasonable information requested by Zippin to diagnose reproducible Errors. 

(d)        Cooperation: In compliance with the applicable Operating Procedure, Retailer will provide Zippin with reasonable cooperation and assistance, including working with our remote support team to conduct simple fixes, and with information as is reasonably requested by Zippin in connection with Zippin’s performance of the Equipment Services.  Any information provided by Retailer to Zippin may be freely used by Zippin for future versions of the Equipment or otherwise without restriction.

(e)        Designated Contact.  Retailer will designate a primary contact and an alternate contact in connection with the Equipment Services.  Such contact person will promptly notify Zippin of Errors, provide the information set forth above, and perform additional duties, including but not limited to system restarts, logging, and running of operational readiness tasks, as may be reasonably requested by Zippin. The Retailer’s designated contact(s) must be identified during the implementation and start-up phase and included in the applicable Operating Procedure.

(f)         Data Backups.  Retailer will be responsible for maintaining back-up copies of all data residing in or relying in any way on the Equipment.  Zippin will have no liability or responsibility for the loss of any data during the provision of the Equipment Services.

B. Procurement & Supply Services

Option 1: Retailer is responsible for procurement of all Equipment. Under this Option, the following terms and conditions apply:

(a)        Retailer will purchase all Equipment and be solely responsible for all associated logistics, arrangements or agreements with suppliers, manufacturers, carriers or other third party vendors.

(b)        Retailer will be responsible for ensuring that all Equipment is purchased, installed and maintained in a manner consistent with the Operating Procedure and any instructions or requirements provided by Zippin. Zippin will not be liable for any delays or interruptions to the Software Services in the event that the Equipment is purchased, installed or maintained in a manner that is not consistent with the Operating Procedure.

(c)        Zippin will have no liability with respect to Retailer’s choice of Equipment (regardless of whether Zippin made any suggestions, recommendations, or proposed a list of Equipment to be purchased by Retailer).

(d)        Zippin will not be liable for, or have any responsibility for, any warranty claims made with respect to the Equipment. Zippin may provide reasonable assistance to Retailer in making any such warranty claims to suppliers, manufacturers or other third party vendors. Unless otherwise set out in an Order Form, such assistance with respect to warranty claims will be charged to Retailer on the same basis as for Zippin’s support to third party vendors.

(e)        Support to Third Party Vendors: In the event Retailer requires Zippin to provide support services to third party vendors, suppliers or contractors, Zippin will make commercially reasonable efforts to provide all such support services required by Retailer, in accordance with the applicable Operating Procedure.

Option 2: Zippin is responsible for sourcing, procuring and providing to Retailer all the Equipment listed on the applicable Order Form. Under this Option, the following terms and conditions apply:

(a)        Payment and Equipment Costs:

(i)          Zippin’s obligations to provide Equipment to Retailer are subject to Retailer’s payment in full of all applicable Equipment Costs, in accordance with the payment terms set out in the applicable Order Form;

(ii)         Zippin may charge Retailer, as part of the Equipment Costs, a markup or service fee for sourcing and procuring Equipment; and

(iii)        Any additional support Services required by Retailer, including planning advice or site visits, will be charged to Retailer on an hourly basis along with any disbursements incurred by Zippin in providing such Services.

(b)        Shipping and Delivery: Unless otherwise set out in the applicable Order Form, Retailer will be responsible for all arrangements with respect to shipping and delivery of Equipment to the applicable Location(s), and all associated costs (including taxes, duties, levies, insurance, import/export fees).

(c)        Retailer will be responsible for ensuring that all Equipment is installed and maintained in a manner consistent with the Operating Procedure and any instructions or requirements provided by Zippin. Zippin will not be liable for any delays or interruptions to the Software Services in the event that the Equipment is installed or maintained in a manner that is not consistent with the Operating Procedure.

(d)        Warranty:

(i)          Zippin’s role under this Option shall be as an intermediary between Retailer and the suppliers or manufacturers of Equipment;

(ii)         Where any Equipment procured by Zippin is covered by a third party warranty (such as manufacturer or supplier warranty), such warranty shall, to the extent permitted by such third party, be passed on to the Retailer;

(iii)        Zippin will not be liable for, or have any responsibility for, any warranty claims made to third party suppliers or manufacturers with respect to the Equipment. Zippin will provide reasonable assistance to Retailer in making any such warranty claims to suppliers, manufacturers or other third party vendors, in accordance with the applicable Operating Procedure; and

(iv)        Zippin only provides the following warranties with respect to its procuring of Equipment for Retailer: (1) Zippin will perform such Equipment Services with all due skill and care, in accordance with good industry practice; and (2) subject to paragraph A.1(d)(iii), the choice of Equipment made by Zippin (based on the descriptions and specifications provided by the manufacturers) will conform with all descriptions and specifications agreed on the applicable Order Form and/or the Operating Procedure, as applicable.

C. Installation Services

Option 1: Retailer is responsible for the installation of all Equipment at the Location(s). Under this Option, the following terms and conditions apply:

(a)        Under this Option, Zippin will not be responsible for any installation services, nor for any issues that arise with respect to the Equipment due to improper installation, regardless of whether Zippin procured or supplied the Equipment, or whether Zippin conducts any repairs and maintenance on such Equipment.

(b)        Retailer will be responsible for ensuring that all Equipment is purchased, installed and maintained in a manner consistent with the Operating Procedure and any instructions or requirements provided by Zippin. Zippin will not be liable for any delays or interruptions to the Software Services in the event that the Equipment is purchased, installed or maintained in a manner that is not consistent with the Operating Procedure.

(c)        Retailer acknowledges and agrees that Zippin’s ability to complete initial implementation and start-up of the Software and related Equipment at each Location is dependent on Zippin’s scheduling availabilities and capacity. On this basis, in the event that the agreed upon timeframe for implementation and/or the Location Launch Date is delayed for any reason outside of Zippin’s control (including due to any delays with respect to Retailer’s purchase and/or installation of Equipment, access to the Location, availability of internet at the Location, receipt of necessary approvals or permits or otherwise), Retailer will be required to notify Zippin of such delay as soon as possible. Zippin will make commercially reasonable efforts to reschedule the implementation and start-up of such Location as soon as possible, and Retailer will be liable for any direct costs incurred by Zippin as a result of such delay or rescheduling.

Option 2: Zippin coordinates with the Subcontractor(s) hired directly by Retailer for installation of Equipment. Under this Option, the following terms and conditions apply:

(a)        Zippin will coordinate and facilitate Retailer’s hiring of Subcontractor, and provide necessary guidance, supervision and instruction to Subcontractor for purposes of completing the installation of Equipment.

(b)        Zippin will have no liability with respect to Retailer’s choice of Subcontractor (regardless of whether Zippin made any suggestions, recommendations, or proposed a list of Subcontractors for hire by Retailer).

(c)        Retailer will be responsible for ensuring that all Equipment is purchased, installed and maintained in a manner consistent with the Operating Procedure and any instructions or requirements provided by Zippin. Zippin will not be liable for any delays or interruptions to the Software Services in the event that the Equipment is purchased, installed or maintained in a manner that is not consistent with the Operating Procedure.

(d)        Retailer acknowledges and agrees that Zippin’s ability to complete the installation of Equipment and the initial implementation and start-up of the Software and related systems at each Location is dependent on Zippin’s scheduling availabilities and capacity. On this basis, in the event that the agreed upon timeframe for installation, implementation and/or the Location Launch Date is delayed for any reason outside of Zippin’s control (including due to any delays with respect to Retailer’s purchase of Equipment, access to the Location, availability of internet at the Location, receipt of necessary approvals or permits or otherwise), Retailer will be required to notify Zippin of such delay as soon as possible. Zippin will make commercially reasonable efforts to reschedule the installation, implementation and start-up of such Location as soon as possible, and Retailer will be liable for any direct costs incurred by Zippin as a result of such delay or rescheduling.

(e)        Zippin will not be responsible for any installation work, regardless of whether Zippin procured or supplied the Equipment, or conducts any repairs and maintenance on such Equipment.

(f)         Zippin will not be liable for, or have any responsibility for, any warranty claims made to third party suppliers or manufacturers with respect to the Equipment. Zippin will provide reasonable assistance to Retailer in making or initiating any such warranty claims with respect to the Equipment.

(g)        Retailer will be the sole counterparty in the contractual relationship with Subcontractor.

(h)        Zippin will have no liability for any Loss, including any damages to Retailer Location, to the Equipment, or any injury to Retailer or its Subcontractors, and its or their Representatives, except to the extent cause by Zippin’s gross negligence or willful misconduct.

(i)          All Fees payable by Retailer to Zippin for such Services being performed with respect to the installation of Equipment and coordinating with Subcontractor will be set out in the applicable Order Form.

Option 3: Zippin hires Subcontractor(s) directly for installation of Equipment. Under this Option, the following terms and conditions apply:

(a)        Zippin shall directly select, hire and contract with Subcontractor for provision of installation services, and provide necessary guidance, supervision and instruction to Subcontractor for purposes of completing the installation of Equipment at Retailer’s Location(s).

(b)        Zippin will not be liable for, or have any responsibility for, any warranty claims made to third party suppliers or manufacturers with respect to the Equipment. Zippin will provide reasonable assistance to Retailer in making or initiating any such warranty claims with respect to the Equipment, in accordance with the applicable Operating Procedure.

(c)        Retailer will be responsible for ensuring that all Equipment is purchased and maintained in a manner consistent with the Operating Procedure and any instructions or requirements provided by Zippin. Zippin will not be liable for any delays or interruptions to the Software Services in the event that the Equipment is purchased or maintained in a manner that is not consistent with the Operating Procedure.

(d)        Zippin will not be liable for any Loss or delay related to the performance of the installation work to the extent such Loss is caused by Retailer’s acts or omissions, the conditions at the Location(s) (including, for example, any unsafe or inaccessible on-site access, unreliable internet connection, or other similar issues attributable to Retailer’s Location), any default or malfunction of the Equipment attributable to the supplier or manufacturer, or any other issues attributable to the procurement, choice or supply of Equipment where Zippin was not responsible for applicable Procurement & Supply Services.

(e)        Retailer acknowledges and agrees that Zippin’s ability (and/or its Subcontractor’s ability, as applicable) to complete the installation of Equipment and the initial implementation and start-up of the Software and related systems at each Location is dependent on Zippin’s scheduling availabilities and capacity. On this basis, in the event that the agreed upon timeframe for installation, implementation and/or the Location Launch Date is delayed for any reason outside of Zippin’s control (including due to any delays with respect to Retailer’s purchase of Equipment, access to the Location, availability of internet at the Location, receipt of necessary approvals or permits or otherwise), Retailer will be required to notify Zippin of such delay as soon as possible. Zippin will make commercially reasonable efforts to reschedule the implementation and start-up of such Location as soon as possible, and Retailer will be liable for any direct costs incurred by Zippin (and/or payable to its Subcontractor) as a result of such delay or rescheduling.

(f)         The provisions set out under the Maintenance Services section of this Schedule with respect to On-Site Access, Indemnification, Policies, and Service Materials shall apply for purposes of the installation work performed by the Subcontractor under this Option.

(g)        All Fees payable by Retailer to Zippin for such Services being performed with respect to the installation of Equipment and hiring of Zippin Subcontractor will be set out in the applicable Order Form. Zippin may charge Retailer, as part of the Fee set out in the applicable Order Form, a markup or service fee on the fees charged by Zippin’s Subcontractor.

Option 4: Zippin directly performs the installation of Equipment at Retailer Location(s). Under this Option, the following terms and conditions apply:

(a)        Under this Option, Zippin will directly perform all work related to the installation of the Equipment, whether the Equipment being installed was supplied or procured by Zippin, Retailer, or by a third party. Zippin will perform such Equipment Services with all due skill and care, in accordance with good industry practice and with the applicable Operating Procedure.

(b)        Retailer will be responsible for ensuring that all Equipment is purchased and maintained in a manner consistent with the Operating Procedure and any instructions or requirements provided by Zippin. Zippin will not be liable for any delays or interruptions to the Software Services in the event that the Equipment is purchased or maintained in a manner that is not consistent with the Operating Procedure.

(c)        Zippin will not be liable for any Loss or delay related to the performance of the installation work to the extent such Loss is caused by Retailer’s acts or omissions (or the acts or omissions of Retailer’s Representatives or Subcontractors), the conditions at the Location(s) (including, for example, any unsafe or inaccessible on-site access, unreliable internet connection, or other similar issues attributable to Retailer’s Location), any default or malfunction of the Equipment attributable to the supplier or manufacturer, or any other issues attributable to the procurement, choice or supply of Equipment where Zippin was not responsible for applicable Procurement & Supply Services.

(d)        Zippin will not be liable for, or have any responsibility for, any warranty claims made to third party suppliers or manufacturers with respect to the Equipment. Zippin will provide reasonable assistance to Retailer in making or initiating any such warranty claims with respect to the Equipment, in accordance with the applicable Operating Procedure.

(e)        The provisions set out under Maintenance Services with respect to On-Site Access, Indemnification, Policies, and Service Materials shall apply for purposes of the installation work performed by Zippin under this Option.

(f)         All Fees payable by Retailer to Zippin for such Services being performed with respect to the installation of Equipment will be set out in the applicable Order Form. Zippin may charge Retailer, as part of the Fee set out in the applicable Order Form, a markup or service fee.

(g)        Retailer acknowledges and agrees that Zippin’s ability to complete the installation of Equipment and the initial implementation and start-up of the Software and related systems at each Location is dependent on Zippin’s scheduling availabilities and capacity. On this basis, in the event that the agreed upon timeframe for installation, implementation and/or the Location Launch Date is delayed for any reason outside of Zippin’s control (including due to any delays with respect to Retailer’s purchase of Equipment, access to the Location, availability of internet at the Location, receipt of necessary approvals or permits or otherwise), Retailer will be required to notify Zippin of such delay as soon as possible. Zippin will make commercially reasonable efforts to reschedule the implementation and start-up of such Location as soon as possible, and Retailer will be liable for any direct costs incurred by Zippin (and/or payable to its Subcontractor) as a result of such delay or rescheduling.

D. Maintenance Services

Maintenance Services will be determined and provided in accordance with the applicable Support Package and Operating Procedure in place at the Location. Retailer may purchase Support Packages covering certain specified Equipment and their related functionalities with the Software, including: (i) monitoring Services for devices connected to the Zippin system at the Location; (ii) diagnostics of Equipment related issues; (iii) additional warranty packages; and (iv) coordinating with third party vendors and suppliers with respect to Equipment purchases and warranty issues requiring to be dealt with such third parties.

Troubleshooting, diagnostics, and triage of Equipment-related issues, as well as resolution of Third Party Issues will be handled in accordance with the applicable Operating Procedure, in the same manner as set out in the Software Schedule. Unless otherwise set out in the applicable Operating Procedure, such issues will be negotiated by the Parties and managed on an issue-by-issue basis, in accordance with the applicable Support Package purchased by Retailer and the standard procedures set out in the Operating Procedure.

Unless otherwise set out in the applicable Support Package and/or Operating Procedure, the following terms and conditions apply to the provision of Maintenance Services:

1.          Equipment Warranty

As part of the Maintenance Services, Retailer may purchase a Support Package specifically providing for Equipment Warranty and Replacement. Such Support Package will be agreed to by the Parties and reflected in the applicable Order Form and/or Operating Procedure, and may include the following terms:

(a)        Equipment Warranty Period: The Equipment Warranty Period applicable to the Equipment covered by the Support Package will be set out in the applicable Order Form, based on the applicable Support Package purchased by Retailer.

(b)        Repair or Replacement: During such time as the Equipment Warranty Period is in effect, Zippin will use commercially reasonable efforts to repair or replace malfunctioning Equipment that fails to meet the specifications agreed to by the Parties

(c)        Replacement Parts.  Replacement Equipment or parts may be new, reconditioned, or refurbished. The replaced Equipment or parts will become the property of Zippin.

(d)        Replacement Equipment Costs: Costs charged to Retailer for replacement Equipment or parts during the Equipment Warranty Period will be set out in and depend on the applicable Support Package agreed to by the Parties. In the event that the Equipment malfunction is due to causes external to the Equipment, or caused by improper installation completed by a third party, Retailer will pay the Equipment Cost set out in Zippin’s then current list price for the replacement Equipment.

2.          On-Site Maintenance Services

Zippin will determine, in consultation with Retailer and in accordance with the applicable Operating Procedure, whether it is necessary to perform Maintenance Services at the Retailer’s Location(s).  If such determination is made, the following will apply:

(a)        On-Site Access: Subject to all reasonable prior notice and the provision of any documentation required for site access and security purposes, Retailer will provide Zippin personnel with: (i) full, free, and safe on-site access to the Equipment, and (ii) a secure storage space, designated work area, and access to a telephone, and reasonable use of necessary tools and communications facilities, as may be required to perform any of the Equipment Services. 

(b)        Indemnification: Retailer will indemnify, defend, and hold harmless Zippin for any Loss (including but not limited to attorneys’ fees) arising from or relating to injury to Zippin personnel, agents, or equipment during the provision of Equipment Services at a Retailer Location except to the extent that such injury is the result of the act, omission or negligence of Zippin or its Representatives. 

(c)        Policies: Zippin will adhere to any policies applying at the applicable Location, such as health and safety, fire safety and security policies and procedures.

(d)        Service Materials: Zippin personnel performing Equipment Services at Retailer’s Location may use and store at such Location any software, documentation, tools, test equipment, and other material required to perform the Equipment Services (“Service Materials”).  Zippin grants no right, title or license to the Service Materials and retains all right, title, and interest in and to the Service Materials.  Nothing in this Agreement implies any grant or license by Zippin to Retailer in the Service Materials.  Retailer will not to use the Service Materials or make them available to third parties without Zippin’s prior written consent.  Zippin may remove Service Materials at any time and Retailer will give Zippin access to the applicable Location in order to permit such removal.

3.          Limitations on Maintenance Services

(a)        Maintenance Services Not Covered: Notwithstanding anything to the contrary in this Agreement or the applicable Support Package or Operating Procedure, the Maintenance Services do not include the correction of, and Zippin will have no obligation, responsibility, or liability with respect to, any errors, defects, or other problems to the extent caused by or resulting from:

(i)          Retailer’s failure to implement any Maintenance Release made available to Retailer by Zippin;

(ii)         changes not approved by Zippin by Retailer or third parties to an operating system, network configuration, or environment that adversely affect the Equipment;

(iii)        any alterations or modifications of, or additions to, the Equipment made by parties other than Zippin or an approved contractor;

(iv)       use of the Equipment in a manner for which they were not designed or other than as specified in the applicable documentation or specifications;

(v)        the combination, use, or interconnection of the Equipment with other software or hardware not supplied or approved by Zippin;

(vi)       use of the Equipment on or with an unsupported hardware or software platform save where approved by Zippin;

(vii)      abnormal usage or misuse of the Equipment or damage for extreme weather events, including, but not limited to, accident, fire, water damage, earthquake, lightning, other acts of nature, and other causes external to the Equipment;

(viii)     installation or maintenance of wiring, circuits, electrical conduits, or devices external to the Equipment;

(ix)       Retailer’s failure to provide and continually maintain adequate electrical power, air conditioning, and humidity controls in accordance with Equipment specifications;

(x)        excessive wear of the Equipment;

(xi)       removal of the Equipment from the location originally specified by Retailer or reinstalled without the prior written approval of Zippin;

(xii)      the Retailer’s or a third party’s negligence;

(xiii)     any breach by Retailer of this Agreement;

(xiv)     board level repairs made to the Equipment, other than by Zippin, unless the board repairs were approved in advance in writing by Zippin;

(xv)      Retailer’s refusal or failure to implement any Error correction or replacement part made available to Retailer by Zippin; or

(xvi)     any Equipment in which the tamper label has been altered or the Equipment cover has been opened. 

(b)        Limitations on Support and Error Corrections: The Maintenance Services are limited to addressing problems that are demonstrable and reproducible.  Zippin makes no commitment, representation, or guarantee regarding the amount of time it will take to diagnose or resolve a problem once it is brought to Zippin’s attention.  Zippin has no obligation to correct errors in or failures of any Equipment, except as expressly stated in this Agreement.

4.          Severity Levels

To ensure that all technical problems with the Equipment and Software System are resolved in a timely manner, Zippin will implement and follow the procedures set out in the applicable Operating Procedure. Unless otherwise set out in the applicable Operating Procedure, Zippin’s priority scale and service objectives in the event of an issue with the Equipment are set out in the table below.  Zippin’s response times to technical support issues depends on a number of factors, including, the complexity and severity of the issue, the necessary escalation, research or testing of the issue, the volume of support requests, whether on-site servicing is required, and the applicable Support Package. Zippin will not be liable for any failure or delay to correct or solve any issues with the Equipment, or any failure to meet the service objectives set out in the table below, provided that Zippin complied in all material respects with the Operating Procedure.

Retailer acknowledges and agrees that Zippin’s ability to resolve any technical problems within a given timeframe depends on Retailer’s cooperation and compliance with the applicable Operating Procedure.