OneSpace Inc. - Merchandiser Terms of Service

UPDATED 4-2-2018

BEFORE USING ONESPACE’S MERCHANDISER APPLICATION (AS DEFINED BELOW), PLEASE READ THESE END USER TERMS OF SERVICE (“TERMS”). THESE TERMS GOVERN ANY ORDER FORM(S) ENTERED INTO BETWEEN ONESPACE INC. (“ONESPACE”) AND “CUSTOMER” AND ARE INCORPORATED BY REFERENCE INTO ANY ORDER FORM EXECUTED BY CUSTOMER AND ONESPACE. PURSUANT TO THESE TERMS, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE ONESPACE MERCHANDISER APPLICATION. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND ONESPACE, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION OF THE ORDER FORM.

1. The Merchandiser Application. OneSpace will make the Merchandiser Application available to (a) Customer and (b) individuals who are authorized to use the Merchandiser Application on behalf of the Customer and who have been supplied user identification and passwords by OneSpace at Customer’s request, including employees, consultants, contractors, and agents of Customer (“Users”). OneSpace hereby grants Customer and its Users a limited, non-exclusive right to access the Merchandiser Application during the Subscription Term and in accordance with these Terms (including the specific access rights and limitations set forth in the Order Form) (the “Subscription”). Customer’s Subscription is not dependent on any future functionality or features (or any public comments or other disclosure made by OneSpace with respect thereto). “Merchandiser Application” means the online, website application provided by OneSpace via merchandiser.onespace.com, insights.onespace.com or at such other designated URL as OneSpace may assign from time to time (including all components thereof, on an individual and collective basis.)

2. Subscription Term. Customer’s initial subscription term for the Merchandiser Application commences on the expected “Subscription Start Date” stated in the Order Form (the “Subscription Start Date”). The Subscription will continue for the “Subscription Term” specified in the Order Form (the “Subscription Term”) and may be renewed in accordance thereof.

3. Confidentiality. As used herein, "Confidential Information" means all confidential information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party") that is designated in writing as confidential as well as the terms and conditions of these Terms. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to injunctive relief.

4. Fees and Taxes. The Customer shall pay to OneSpace all of the fees specified in the Order Forms. Unless otherwise stated in the Order Form, fees are due within 30 days from the invoice date. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies set forth in these Terms, OneSpace reserves the right to suspend the Merchandiser Application without liability to OneSpace, until such account is paid in full.

5. Proprietary Rights. The Merchandiser Application and all intellectual property rights therein and all intellectual property rights relating to the provision of the Professional Services are owned or licensed by OneSpace. Except for the Subscription granted hereunder, nothing in these Terms gives the Customer any right, title or interest to the Merchandiser Application. Customer shall retain all right, title, and ownership in and to the data contained in any reports generated by the Merchandiser Application (the “Reports”.) Notwithstanding, Customer acknowledges that in generating the Reports, OneSpace may use certain materials, products, algorithm processing, training material, best practices and other property that belongs to OneSpace ("OneSpace Property"). The parties agree that OneSpace shall retain all right, title, and ownership in and to the OneSpace Property, including all intellectual property rights pertaining thereto. Customer shall not: (i) modify, translate, or create derivative works based on the Merchandiser Application; (ii) create any link to the Merchandiser Application or frame or mirror any content contained or accessible from the Merchandiser Application, (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Merchandiser Application; or (iv) access the Merchandiser Application in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Merchandiser Application.

6. Customer Data Owned by Customer. As between Customer and OneSpace, Customer owns all data and other content (including any text, graphic, audio, video, or other content) input into the OneSpace Application by Customer or by OneSpace on Customers behalf, which data and other content is not otherwise a part of OneSpace Confidential Information or the OneSpace Application (collectively, the “Customer Data”). Customer grants OneSpace the right to use, display, copy, distribute, and make derivative works of Customer Data for purposes of enabling OneSpace to fulfill its obligations under these Terms. During the Term, Customer may download Customer Data from the OneSpace Application in such formats as OneSpace makes generally available to its customers. Throughout the Term when using the OneSpace Application, Customer represents, warrants, and covenants that (a) it has obtained or will otherwise obtain when inputted all rights, consents, and permissions necessary to input the Customer Data into the OneSpace Application and to grant the foregoing rights to OneSpace, (b) it shall comply with all applicable U.S. and foreign privacy laws with respect to the collection, use, retention, and disposal of all the Customer Data, and (c) Customer’s use, copying, displaying, and distribution of the Customer Data complies with all laws and the terms and policies (including terms of use and privacy and security policies) of all websites from which the Customer Data originated and all websites to which the Customer Data is copied, distributed, displayed, or published using the OneSpace Services. Customer shall indemnify, defend, and hold harmless OneSpace and its affiliates and subsidiaries and their respective officers, directors, employees, representatives, and agents from and against any and all claims, losses, liability, damages, costs, and expenses (including reasonable out-of-pocket expenses and attorneys’ fees) arising out of or relating to Customer’s breach of the foregoing warranty. OneSpace may combine the Customer Data with other information it gathers, develops, or licenses from others for the sole purpose of fulfilling its obligations under these Terms.

7. Termination. The Subscriptions granted hereunder may be terminated pursuant to the terms of an Order From OR by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

8. Surviving provisions. The following provisions shall survive any termination or expiration of the Subscription: Sections 3, 4, 5, 6, 12, 13, 16, 17, 18, 19 and 20.

9. Corporate Authority and Compliance with Laws. Each party represents and warrants that it has the legal power and authority to enter into these Terms and the Order Form and that both are executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of these Terms and the Order Form(s). The parties shall comply with all applicable laws and regulations.

10. Functionality Warranty. OneSpace warrants that the Merchandiser Application will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of any applicable documentation provided by OneSpace.

11. Security Warranty. OneSpace has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Merchandiser Application at reputable third-party Internet service providers and hosting facilities. "Appropriate Security Measures" means commercially reasonable efforts to ensure that Customer Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by OneSpace, whether by accident or otherwise.

12. Disclaimer. Except as expressly provided herein, ONESPACE DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. OneSpace does not warrant that the Merchandiser Application can or will meet the Customer's requirements or that the operation of the Merchandiser Application will be uninterrupted or error-free. Further, OneSpace does not warrant that all errors in the Merchandiser Application can or will be corrected.

13. Use Guidelines. Customer is responsible for User’s compliance with these Terms. Customer shall use the Merchandiser Application for internal business purposes as contemplated by these Terms and shall not: (i) wilfully tamper with the security of the OneSpace Application (the “Systems”); (ii) access data on the Systems not intended for the Customer; (iii) log into a server or account on the Systems that the Customer is not authorized to access or otherwise translate any underlying software in the Merchandiser Application; (iv) attempt to probe, scan or test the vulnerability of any Systems or to breach the security or authentication measures without proper authorization; (v) wilfully render any part of the Systems unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the Merchandiser Application or make the Merchandiser Application available to a third party other than as authorized by OneSpace; (vii) attempt to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithms in the Merchandiser Application; (viii) provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use or allow others to use the OneSpace Application or any OneSpace Confidential Information for the benefit of any third party,; (ix) deep link to any page of the Merchandiser Application; (x) create products or services that integrate or are derived from OneSpace Services (xi) use the OneSpace Application or any OneSpace Confidential Information to develop a competing service (xii) transmit, market or sublicense OneSpace’s Application or Services or (xiii) use the Merchandiser Application in violation of OneSpace’s Privacy Policy available at www.onespace.com.

14. Optional Services Provided by OneSpace. Some customers of OneSpace request OneSpace to provide professional or consulting services (collectively, “Professional Services”) to support their use of the OneSpace Application. Professional Services may be ordered pursuant to an Order Form or SOW. If OneSpace provides Professional Services pursuant to one or more Order Forms or Statements of Work, each Order Form or Statement of Word will be considered a part of and an attachment to these Terms. Customer shall cooperate with OneSpace regarding all Professional Services and promptly provide to OneSpace such information as OneSpace reasonably requires in order to provide Professional Services.

15. OneSpace’s Uptime Commitment. OneSpace offers a performance commitment that the key features of the OneSpace Application will be available for access and use by Customer at least 99.5% of the time per calendar quarter, excluding any period of Permitted Unavailability (the “Uptime Commitment”). Absent unusual circumstances, OneSpace shall schedule planned outages during non-peak hours and with 48 hours prior notice to Customer. The Uptime Commitment and applicable remedies are subject to the terms of this section. In the event that the Uptime Commitment is not met, Customer will receive a credit applicable to future charges that Customer owes OneSpace. The amount of the credit will be the greater of (i) 5% of the fees paid by Customer for the affected OneSpace Applciation applicable to the most recent quarter, or (ii) an amount calculated based on the number of hours during such quarter and the duration of any and all periods of unavailability of the affected OneSpace Application short of the Uptime Commitment during such quarter as set forth in the following formula:

Credit =Hours Not Available Short of Uptime Commitment in QuarterXAmount Paid by Customer for the affected OneSpace Application applicable to Quarter
Hours in Quarter

16. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID AND/OR DUE BY THE CUSTOMER. No action against either party arising out of these Terms may be brought by the other party more than one year after the cause of action has arisen.

17. OneSpace Indemnification. OneSpace shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Merchandiser Application, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if OneSpace reasonably believes that the Customer's use of any portion of the Merchandiser Application is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then OneSpace may, at its expense: (i) procure for the Customer the right to continue using the Merchandiser Application; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the Merchandiser Application as set out herein. OneSpace shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Merchandiser Application with other equipment or software not supplied by OneSpace or in a manner not consistent with OneSpace’s instructions. THIS SECTION 17 SETS FORTH ONESPACE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

18. Customer Indemnification. The Customer agrees to indemnify and hold OneSpace harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against OneSpace by a third party arising from or relating to Customer’s use of the Merchandiser Application in violation of the Use Guidelines stated in Section 13 above.

19. Mutual Provisions. Each party's indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.

20. General Provisions. These Terms, inclusive of the Order Forms and/or SOWs and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of a conflict between the body of these Terms and any Order Form or SOW, the governing priority of the documents is as follows: (a) Order Form(s), (b) SOW(s), and (c) these Terms. Customer agrees that OneSpace may use Customer’s name and logo on OneSpace’s website, and as a part of a general list of OneSpace's customers for use and reference in corporate, promotional and marketing literature. The parties are independent contractors. These Terms do not create a joint venture or partnership between the parties; no party is by virtue of these Terms authorized as an agent, employee or representative of the other party. No modification of, amendment or addition to these Terms is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under these Terms must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. The rights and obligations of the parties and all interpretations and performance of these Terms shall be governed by and construed in accordance with the laws of the State of Illinois, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to these Terms. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Cook County in the State of Illinois, USA, and all courts competent to hear appeals there from. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms. Any notices under these Terms shall be in writing and shall be deemed to have been delivered: the next business day after sending by confirmed facsimile or email. Notices to OneSpace shall be addressed to the General Counsel. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from these Terms, and all other provisions of these Terms shall remain in full force and effect. Neither party shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.

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