General Service Agreement

Shuup Commerce Inc

General Service Agreement

Version 1.02

This General Service Agreement (the “Agreement”), dated as of the effective date in Exhibit A to this agreement (the “Effective Date”), is by and between Shuup Commerce Inc., a British Columbia corporation with offices located at 1500 West Georgia Street, Ste 1300, Vancouver, BC, V6G 2Z6, Canada (“Developer”, “Shuup”), and the undersigned party set forth on Exhibit A to this Agreement (the “Customer”).

WHEREAS, Customer wishes to procure from Developer the software development services described herein, and Developer wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. Definitions.

Acceptance Tests” has the meaning set forth in Section 6.2(a).

Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at law, in equity, or otherwise.

Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

Agreement” has the meaning set forth in the preamble.

Confidential Information” has the meaning set forth in Section 11.1.

Customer” has the meaning set forth in the preamble.

Customer Indemnitee” has the meaning set forth in Section 14.1.

Customer Materials” means all materials and information, including documents, data, specifications, software, content, and technology that are provided to Developer by or on behalf of Customer in connection with this Agreement.

Deliverables” means the Software, Documentation, and other work product that Developer is required to deliver to Customer under this Agreement as set forth in the Software Specification and Project Plan.

Derivatives” has the meaning set forth in Section 9.1.

Developer” has the meaning set forth in the preamble.

Developer Personnel” means all individuals involved in the performance of Services as employees or independent contractors of Developer or any Subcontractor.

Disclosing Party” has the meaning set forth in Section 11.1.

Documentation” means any and all manuals, instructions, specifications, and other documents and materials listed in the Software Specification and Project Plan that Developer provides or makes available to Customer in any medium and which describe the functionality, components, features, or requirements of the Software, including the installation, configuration, integration, operation, use, support, or maintenance thereof.

Effective Date” has the meaning set forth in the preamble.

Fees” has the meaning set forth in Section 8.1.

Force Majeure Event” has the meaning set forth in Section 16.10(a).

Indemnitee” has the meaning set forth in Section 14.3.

Indemnitor” has the meaning set forth in Section 14.3.

Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees, and the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers.

Milestone” means an event or task described in the Software Specification and Project Plan for which there is a corresponding date by which it must be completed in the Milestone Schedule.

Milestone Schedule” means the schedule set forth in the Software Specification and Project Plan setting out the dates by which the parties are required to achieve the Milestones.

Nonconformity” has the meaning set forth in Section 6.2(b).

Operating Environment” means Customer’s computer systems on which the Software is intended to be installed and operate, as set forth in the Software Specification and Project Plan.

Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

Reimbursable Expenses” has the meaning set forth in Section 8.2.

Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

Services” has the meaning set forth in Section 2.1.

Software” means the software Developer is required to or otherwise does create or provide to Customer or its designee in connection with the Services.

Software Specification and Project Plan” has the meaning set forth in Section 3.2.

Specifications” means the specifications for the Software set forth in Software Specification and Project Plan.

Subcontractor” has the meaning set forth in Section 2.4.

Term” has the meaning set forth in Section 12.1.

Testing Period” has the meaning set forth in Section 6.2(a).

Third-Party Materials” means materials and information, in any form or medium, including any software (including open source software), documents, data, content, specifications, products, equipment, or components of or relating to the Software that are not proprietary to Provider.

Work Product” means the Software, Documentation, Specifications, Deliverables, and other documents, work product, and materials related thereto, that Developer is required to or otherwise does create or provide to Customer or its designee in connection with the Services. Except as otherwise expressly set forth in this Agreement, Work Product does not include any Derivatives.

  1. Engagement of Developer; General Service Obligations.

2.1  Engagement of Developer. Customer hereby engages Developer, and Developer hereby accepts such engagement, to develop Software and provide services related thereto as further described herein (collectively, the “Services”) on the terms and conditions set forth in this Agreement.

2.2  Project Management. Each party shall, throughout the Term, maintain within its organization a project manager to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the Services. Each such project manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its project manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. The parties’ initial project managers are, if applicable, referenced on Exhibit A. Each party shall use commercially reasonable efforts to maintain the same project manager in place throughout the Term. If either party’s project manager ceases to be employed by such party or such party otherwise wishes to replace its project manager, such party shall promptly name a new project manager by written notice to the other party.

2.3  Changes. Either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such changes in accordance with the change request procedure set forth by Developer. No changes will be effective unless and until memorialized in a written change order signed by both parties that sets forth the specifications and requirements for desired changes.

2.4  Subcontractors. Developer may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).

  1. Consulting Phase/Sprint. Commencing on the Effective Date, Developer shall perform the consulting and related Services set forth in Exhibit A for purposes of creating and providing to Customer Developer’s proposal for developing Software that conforms to the preliminary specifications set forth in such Schedule.

3.1  Developer’s Proposal. On or prior to the due date set forth in Exhibit A, Developer shall deliver to Customer a detailed proposal setting forth detailed software specifications and a project plan for developing the Software and such other information as is set forth in Exhibit A. On receipt of such proposal, Customer shall have the period set forth in Exhibit A to review and approve or raise objections thereto. If Customer raises any objections, the parties shall negotiate in good faith to amend the proposal.

3.2  Software Specification and Project Plan. Upon Customer’s approval of Developer’s proposal delivered pursuant to Section 3.1 or, if Customer raises any objections, the parties’ agreement to the amended proposal, each party shall cause the same to be signed by its duly authorized representative. Such mutually executed proposal will be the “Requirements and Specifications Plan” and will be included in Exhibit B.

  1. Software Development.

4.1  Software Development. Promptly following the parties’ execution of the Software Specification and Project Plan, Developer will perform the software development Services set forth therein in accordance with this Agreement.

4.2  Third-Party Materials. The Software may include or operate in conjunction with Third-Party Materials. Developer will identify to Customer all Third-Party Materials Developer includes in or that are required for use with any Deliverable on or prior to delivery of the relevant Deliverable and provide to Customer: (a) a copy of all documentation and third-party license agreements relating to such Third-Party Materials as are available to Developer; or (b) website or other information specifying where Customer can access such documentation and third-party license agreements. All Third-Party Materials are provided pursuant to the terms and conditions of the applicable third-party license agreement. Customer shall comply with all such third-party license agreements and any material breach by Customer thereof will be deemed a material breach of this Agreement.

  1. Customer Obligations.

5.1  Customer Resources and Cooperation. Customer shall, in accordance with the Milestone Schedule:

(a)  perform all obligations identified as “Customer Responsibilities” in the Software Specification and Project Plan;

(b)  provide the Customer Materials and all such other resources as may be specified in the Software Specification and Project Plan;

(c)  provide Developer Personnel with such access to Customer’s premises and Operating Environment as is necessary for Developer to perform its obligations on a timely basis as set forth in the Software Specification and Project Plan;

(d)  ensure the Operating Environment is set up and in working order to allow Developer to perform the Services and deliver each Software Deliverable on or prior to the applicable due date set forth in the Milestone Schedule;

(e)  participate with suitably qualified and authorized personnel in all meetings scheduled in, or in accordance with, the Software Specification and Project Plan and such other meetings as may be scheduled on at least three (3) days’ prior notice;

(f)  provide all consents, approvals, exception notices, and other communications specified in the Software Specification and Project Plan or as otherwise may be required under this Agreement; and

(g)  provide all cooperation and assistance Developer reasonably requests to enable Developer to exercise its rights or perform its obligations under this Agreement.

5.2  Effect of Customer Failure or Delay. Developer is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, Developer may, by written notice to Customer, extend all or any subsequent due dates for Milestones set forth in the Milestone Schedule as Developer deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Developer may have for any such failure or delay by Customer.

  1. Delivery; Testing and Acceptance.

6.1  Delivery. Developer shall deliver or otherwise make available to Customer each Software Deliverable on or prior to the due date set forth in the Milestone Schedule in accordance with the delivery criteria set forth in the Software Specification and Project Plan.

6.2  Testing and Acceptance. All acceptance testing of Deliverables shall be conducted as follows:

(a)  Following delivery of each Software Deliverable, Customer will have fourteen (14) days (“Testing Period”) to conduct the tests for such Software Deliverable set forth in Exhibit A (the “Acceptance Tests”) to evaluate whether such Software Deliverable materially conforms to the Specifications and performs in accordance with the Documentation. Developer has the right to observe or participate in all or any part of such Acceptance Tests.

(b)  Promptly upon the completion of the Acceptance Tests, Customer shall notify Developer in writing of its acceptance or, solely if the Acceptance Tests identify any material failure of the Deliverable to conform to the Specifications and perform in accordance with the Documentation (each, a “Nonconformity”), rejection of the Software Deliverable. Customer shall not unreasonably withhold its acceptance and shall include in any rejection notice a reasonably detailed description of the Acceptance Tests conducted, the results thereof and each identified Nonconformity. Each Software Deliverable will be deemed accepted by Customer upon the expiration of the Testing Period therefor if Customer has not delivered a notice accepting or rejecting the Software Deliverable prior to such expiration.

(c)  Subject to the proviso set forth in Section 6.2(d), following receipt of a rejection notice, Developer shall use commercially reasonable efforts to remedy all Nonconformities and re-deliver the Software Deliverable. Upon re-delivery, Customer shall have an additional Testing Period to conduct Acceptance Tests to determine whether each Nonconformity has been remedied.

(d)  The parties shall repeat the process set forth in Section 6.2(a) and Section 6.2(b) until Customer has accepted the Software Deliverable as set forth in Section 6.2(b), provided, however, if Developer fails more than once to remedy a material Nonconformity: (i) Customer may accept the Deliverable as nonconforming, in which case the fees will be reduced equitably to reflect the value of the Deliverable as received relative to the value of the Deliverable had it materially conformed to the Specifications and performed in accordance with the Documentation; and (ii) if Customer does not accept the Deliverable as non-conforming, either party may terminate this Agreement by written notice to the other party.

(e) This Section 6.2 sets forth Developer’s sole obligations and Customer’s exclusive remedies for any failure of any Deliverable to conform to the Specifications or perform in accordance with the Documentation.

  1. Training. Customer understands and agrees that Developer does not provide training services to Customer, and Customer is responsible for ensuring proper training and use of the Deliverables. Developer is not responsible for Customer’s failure to train its users or properly use the deliverables.
  2. Fees and Payment.

8.1  Fees. Customer shall pay Developer fees (“Fees”) as set forth in Exhibit A.

8.2  Reimbursable Expenses. Customer shall reimburse Developer for all pre-approved out-of-pocket expenses incurred by Developer in connection with performing the Services (“Reimbursable Expenses”).

8.3  Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Developer’s income.

8.4  Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to the due date as set forth in Exhibit A. Customer shall make all payments hereunder in US dollars by Quickbooks payment link provided by Developer. Customer shall make payments to the address or account specified by Developer or such other address or account as is specified by Developer in writing from time to time. Customer may pay via ACH, Credit or debit card payments are subject to a 3% service fee charged by Developer.

8.5  Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:

(a)  Developer may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;

(b)  Customer shall reimburse Developer for all reasonable costs incurred by Developer in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and

(c)  if such failure continues for seven (7) days following written notice thereof, Developer may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

8.6  No Deduction or Setoff. Customer shall pay all amounts due under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by Developer, whether under this Agreement, applicable Law, or otherwise and whether relating to Developer’s breach, bankruptcy, or otherwise.

  1. Intellectual Property Rights.

9.1  Work Product. Except as set forth in Section 9.2, all right, title and interest in and to (a) the Work Product and (b) all works, inventions, and other subject matter incorporating, based on, or derived from any Work Product, including all customizations, enhancements, improvements, and other modifications thereof (collectively, “Derivatives”), in each case (subclause (a) and subclause (b)) by whomsoever made and including all Intellectual Property Rights therein, are and will remain, as appropriate, with Developer and the respective rights holders in the Third-Party Materials. Customer has no right or license with respect to any Work Product or Derivatives except as expressly licensed under Section 10.1 or the applicable third-party software license, in each case subject to Section 10.2. All other rights in and to the Work Product and Derivatives are expressly reserved by Developer and the respective Third-Party Licensors.

9.2  Customer Materials. As between the parties, Customer is and will remain, the sole and exclusive owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted under Section 10.3. All other rights in and to the Customer Materials are expressly reserved by Customer.

  1. Licenses.

10.1  Developer License. Subject to and conditioned upon Customer’s payment of the Development Fees and compliance with and performance in accordance with all other terms and conditions of this Agreement, Developer hereby grants to Customer a fully paid-up and royalty-free, non-transferable, non-sublicensable license: (a) to install, operate, and use the Software in object code only in the United States, Canada, Great Britain, Australia, South Africa, New Zealand, Switzerland, Singapore, Hong Kong, Japan and the European Union for the term of that certain Software as a Service Agreement executed by and between the parties hereto, solely for Customer’s business operations and in accordance with the Documentation; and (b) to use the Documentation and other Work Product solely in connection therewith.

10.2  License Restrictions. Customer shall not, and shall not permit any other Person to, access or use any Work Product except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

(a)  copy, modify, or create derivative works or improvements of the Work Product;

(b)  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Work Product to any other Person, including through or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service;

(c)  reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

(d)  remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Work Product, including any copy thereof;

(e)  use any Work Product in a manner or for any purpose that infringes, misappropriates, or otherwise violates any Law or Intellectual Property Right;

(f)  use the Work Product for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to Developer’s commercial disadvantage; or

(g)  use any Work Product in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications;

(h)  otherwise use the Work Product beyond the scope of the license granted under Section 10.1.

10.3  Customer Materials License. Customer hereby grants to Developer a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify, and create derivative works and improvements of the Customer Materials solely to develop the Work Product and otherwise as necessary to perform the Services for the benefit of Customer and for Developer’s general development and commercialization of the Work Product and Derivatives. The term of such license will commence upon Customer’s first delivery of Customer Materials to Developer and be perpetual.

  1. Confidentiality.

11.1  Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 11.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, software code, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”.

11.2  Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

11.3  Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for three (3) years following the Effective Date:

(a)  not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

(b)  except as may be permitted by and subject to its compliance with Section 11.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 11.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 11.3.

(c)  safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and

(d)  ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 11.

The Receiving Party shall be responsible for any breach of or non-compliance with this Section 11 by any of its Representatives.

11.4  Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under Section 11.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 11.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

  1. Term and Termination.

12.1  Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until the parties have performed their obligations under the Software Specification and Project Plan (“Term”).

12.2  Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

(a)  Developer may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Developer’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 10.2 or Section 11.‌

(b)  Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.

(c)  Either party may terminate this Agreement, effective immediately, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

12.3  Effect of Expiration or Termination. Upon any expiration or termination of this Agreement:

(a)  All licenses granted by either party to the other will also expire or terminate, except to the extent that any license has an express term that continues for a longer period or is perpetual.

(b)  Developer shall (i) return to Customer all documents and tangible materials containing, reflecting, incorporating, or based on the Customer Materials or Customer’s Confidential Information; and (ii) permanently erase the Customer Materials and Customer’s Confidential Information from its computer systems, except, in each case, to the extent Developer requires or will require such Customer Materials or Confidential Information to exercise any surviving rights under Section 10.3 or to perform any of its surviving obligations under this Agreement.

(c)  Customer shall (i) return to Developer all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Developer’s Confidential Information; and (ii) permanently erase Developer’s Confidential Information from its computer systems, except to the extent that Customer requires such Confidential Information to exercise its rights under the license granted pursuant to Section 10.1.

(d)  If either party terminates this Agreement pursuant to Section 6.2(d) then, upon Customer’s payment of all Fees and Reimbursable Expenses due for Work Product created prior to the effective date of such termination, Customer is hereby granted a non-exclusive, non-transferable, and non-assignable right and license to use such Work Product on the terms and conditions set forth in Section 10.1 and Section 10.2(a), provided that such Work Product is provided “as is” without warranty of any kind and Developer has no continuing obligations or liability to Customer or any other Person with respect thereto.

(e)  If Customer terminates this Agreement pursuant to Section 12.2(b), Customer will be relieved of any obligation to pay any Fees hereunder and Developer will refund to Customer Fees paid in advance for Services that Developer has not performed as of the effective date of termination.

(f)  If Developer terminates this Agreement pursuant to Section 12.2(a) or Section 12.2(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Developer’s invoice therefor.

(g)  If Developer terminates this Agreement pursuant to Section 12.2(a), all licenses granted to Customer in the Work Product will also terminate and Customer shall immediately cease all use of the Work Product.

12.4  Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1, Section 9, Section 10.2, Section 11.1, this Section 12.4, Section 14, Section 15, and Section 16.

  1. Representations and Warranties.

13.1  Mutual Representations and Warranties. Each party represents and warrants to the other party that:

(a)  it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

(b)  it has the full right, power, and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement;

(c)  the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and

(d)  when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

13.2  Additional Developer Representations, Warranties, and Covenants; Limited Remedy.

(a)  Developer represents, warrants, and covenants to Customer that Developer will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

(b)  Developer warrants that for 30 days following delivery all Software will be, and as installed in the Operating Environment and used in accordance with the Documentation will, materially function in conformity with this Agreement and the Specifications. If Developer breaches the foregoing warranty, Developer will, as its sole obligation and Customer’s sole remedy, remedy such breach, provided that Customer gives Developer written notice of such breach within seven (7) days following its discovery by Customer.

13.3  Additional Customer Representations, Warranties, and Covenants.

(a) Customer represents, warrants, and covenants to Developer that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials so that, as received by Developer and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law.

(b) Customer represents and warrants that it has fully reviewed and understands the current capabilities, the Software, the Software Specifications and Project Plan, the features, configurations, designs (i.e., UI/UX), and integrations of a fresh installation of the Shuup SaaS Deliverables as of the Effective Date of signing this agreement, available in https://saas-installation.shuup.com/ and https://saas-installation.shuup.com/admin. Client agrees that all the other capabilities, features, configurations, designs (i.e., UI/UX), integrations and customizations not found in the Shuup SaaS Services, Deliverables, Specifications and Project Plan, or Software installation on a date of signing this Agreement (including Exhibit 2 – Requirements and Specifications) are not a part of or incorporated into this Agreement, and therefore any such additional requests must be separately quoted and invoiced as mutually agreed upon by Customer and Developer in a separate General Service Agreement.

13.4  DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 13.1, SECTION 13.2, AND SECTION 13.3, ALL SOFTWARE, SERVICES, AND WORK PRODUCT ARE PROVIDED “AS IS” AND DEVELOPER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND DEVELOPER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, DEVELOPER MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR WORK PRODUCT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

13.5 NO REFUNDS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL PAYMENTS UNDER THIS AGREEMENT WILL BE IRREVOCABLE, NON-REFUNDABLE, AND NON-CREDITABLE. ALL REMEDIES AVAILABLE TO CUSTOMER IN THE EVENT OF A DISPUTE REGARDING THE QUALITY OF THE SERVICES OR DELIVERABLES ARE LIMITED TO THOSE SET FORTH IN THIS AGREEMENT.

  1. Indemnification.

14.1  Developer Indemnification. Developer shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by any Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) to the extent such action is alleging that Customer’s use of the Software (excluding Customer Materials and Third-Party Materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:

(a)  combination of the Software with any hardware, system, or other software or materials not provided or authorized in writing by Developer;

(b)  modification of the Software other than: (i) by Developer; or (ii) with Developer’s written approval in accordance with Developer’s written specification;

(c)  failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer; or

(d)  act, omission, or other matter described in Section 14.2(a), Section 14.2(b), or Section 14.2(c), whether or not the same results in any Action against or Loss by any Developer Indemnitee.

Additionally, Developer will indemnify, defend, and hold harmless Customer and its directors, officers, agents, successors, and assigns from and against all taxes, losses, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising directly or indirectly from or in connection with: (1) any grossly negligent or intentionally wrongful act of Developer or Developer’s directors, employees or agents; (2) any breach by Developer or Developer’s directors, employees or agents of any of the express covenants, warranties, or representations contained in this Agreement; and (3) any failure of Developer to perform the Services in accordance with all applicable laws, rules, and regulations.

14.2  Customer Indemnification. Customer shall indemnify, defend, and hold harmless Developer and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Developer Indemnitee”) from and against any and all Losses incurred by any Developer Indemnitee in connection with any Action by a third party (other than an Affiliate of a Developer Indemnitee) to the extent such Action is arising out of or relating to:

(a)  Customer Materials or Developer’s use thereof in accordance with this Agreement;

(b)  Developer’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by Developer; or

(c)  any allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement.

Additionally, Customer will indemnify, defend, and hold harmless Developer and its directors, officers, agents, successors, and assigns from and against all taxes, losses, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising directly or indirectly from or in connection with: (1) any grossly negligent or intentionally wrongful act of Customer or Customer’s directors, employees or agents; (2) any breach by Customer or Customer’s directors, employees or agents of any of the express covenants, warranties, or representations contained in this Agreement; and (3) any failure of Customer to utilize the Services and Deliverables in accordance with all applicable laws, rules, and regulations.

14.3  Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 14.1 or Section 14.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 14.3 will not relieve the Indemnitor of its obligations under this Section 14 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

14.4  Mitigation. If the Software, other than Customer Materials, is or in Developer’s opinion is likely to be claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of the Software, other than Customer Materials, is enjoined or threatened to be enjoined, Developer may, at its option and sole cost and expense:

(a)  obtain the right for Customer to continue to use the Software materially as contemplated by this Agreement;

(b)  modify or replace the Software, in whole or in part, to seek to make the Software (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Software under this Agreement; or

(c)  by written notice to Customer, terminate with respect to all or part of the Software the license granted to Customer under this Agreement and require Customer to immediately cease any use of the Software or any specified part or feature thereof, provided that if such termination occurs prior to one year after the Effective Date, subject to Customer’s compliance with its post-termination obligations set forth in Section 12.3, Customer will be entitled to a refund of fees but unearned by Developer.

THIS SECTION 14 SETS FORTH CUSTOMER’S SOLE REMEDIES AND DEVELOPER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

  1. Limitations of Liability.‌

15.1  EXCLUSION OF DAMAGES. NOTWITHSTANDING THE PARTIES’ INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 14, IN NO EVENT WILL EITHER PARTY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (b) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

15.2  CAP ON MONETARY LIABILITY. NOTWITHSTANDING THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 14, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF EITHER PARTY OR THEIR LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNTS PAID BY CUSTOMER TO DEVELOPER HEREUNDER. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

  1. Miscellaneous.

16.1  Further Assurances. On a party’s reasonable request, the other party shall, at such other party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

16.2  Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

   16.3 Non-Solicitation. During the term of this Agreement and for a period of five (5) years thereafter, Customer shall not solicit, hire, make an offer of employment to, or enter into a business or consulting or contractor relationship with, any person who was an employee or contractor of Developer during the term of this Agreement. If Customer breaches this provision, Customer shall pay to Developer liquidated damages equal to 100% of the most recent twelve month salary of Developer’s current or former employee or liquidated damages equal to 100% of the most recent twelve month of payments to Developer’s current or former contractor, together with all legal fees reasonably incurred by Developer in enforcing this provision. The foregoing restriction on solicitation does not apply to unsolicited applications for jobs, responses to public advertisements or candidates submitted by recruiting firms, provided that such firms have not been contacted to circumvent the spirit and intention of this Section 16.3. For clarity, the limitations on liability set forth in Section 15 shall not apply to Customer’s breach of this Section 16.3.

16.4  Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to a party at the addresses set forth in Exhibit A (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.4).

Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

16.5  Interpretation. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, attachments, and appendices mean the sections of, and exhibits, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

16.6  Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

16.7  Entire Agreement. This Agreement, together with the Software as a Service Agreement executed by the parties and any other agreements incorporated by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

16.8  Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Developer’s prior written consent, which consent Developer shall not unreasonably withhold or delay. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

16.9  Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer will not directly or indirectly export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction, or Person to which export, re-export, or release is prohibited by applicable Law. Customer will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

16.10  Force Majeure.

(a)  No Breach or Default. In no event will Developer be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond Developer’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake, or explosion, war, terrorism, invasion, riot, or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages, or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export, or import restriction, quota or other restriction or prohibition, or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 60 days or more.

(b)  Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Developer shall give prompt notice to Customer, stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

16.11  No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

16.12  Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

16.13  Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

16.14  Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the District of British Columbia, Canada. without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the District of British Columbia, Canada. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the courts of Canada or the courts of the District of British Columbia, Canada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.

16.15  Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

16.16  Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 11 or, in the case of Customer, Section 10.2 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

16.17  Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

16.18  Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

___________________________________

[Exhibit A: Signatures, Parties, Sprint and Payments Schedule to Follow]