Terms of Service

These terms of service (“Agreement”) govern Client’s access to and use of the Provider Platform (as defined below) provided by InStore.ai, Inc. (“Provider”) for use by the individual or entity accepting to be bound by this Agreement (“Client”), whether by executing an Order referencing this Agreement or otherwise. 

Provider reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time and in its sole discretion. If Provider makes any changes to this Agreement, Provider will provide notice of such changes by revising the “Last Updated” date above and, in some cases, Provider may provide additional notice (such as by sending an email or other notification or by posting a notice on the Provider SaaS Offering (as defined below)). Any changes or modifications will be effective the earlier of 7 days after Provider provides notice that this Agreement has been modified (the “Notice Period”) or when Client otherwise accepts the changed or modified Agreement. If not accepted by Client earlier, continued use by Client or any of its Authorized Users of any part of the Provider Platform following the Notice Period will constitute Client’s acceptance of such changes or modifications. Client and each Authorized User is advised to review this Agreement whenever they access any part of the Provider Platform and at least every 30 days to make sure that they understand the terms and conditions that apply to their use of the Provider Platform.

Provider offers the Provider Platform only as a services provider, including by providing certain certain business intelligence technology for use by Clients at their retail locations. The relationship that Client has with Provider is that of an independent individual or entity and not an employee, agent, joint venturer, or partner of Provider. When using the Provider Platform, Client and its Authorized Users will be subject to any additional posted terms, guidelines or rules which may be posted on the Provider SaaS Offering from time to time, as well as any Provider policies mentioned in this Agreement (the “Additional Terms”). All Additional Terms are hereby incorporated by reference into this Agreement.

Provider and Client are each sometimes referred to in this Agreement as a “Party,” and collectively, as the “Parties.”

1. DEFINITIONS
   1. “Affiliate” means, with respect to any entity, any other entity that now or hereafter Controls, is Controlled by, or is under common Control with such entity where “Control” means (a) the direct or indirect ownership of more than fifty percent (50%) of the assets, shares (or similar equity interests) or voting power of the outstanding voting securities of the applicable entity that represent the power to direct the management and policies of such entity; or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the applicable entity whether through the ownership of voting securities, through other voting rights, by contract or otherwise.
   2. “Audio Data” has the meaning set forth in Section 1.6.
   3. “Authorized Reseller” means an entity that has entered into a written agreement with Provider to purchase Products for resale or distribution to third party customers, provided, for clarity, that with respect to software-based products such as the Provider Platform, “resale” refers to the sale of one or more licenses to such software-based products, not sale of the software-based products themselves.
   4. “Authorized User” means an employee or independent contractor of Client who is authorized by Client or an applicable Authorized Reseller to access and use the Provider Platform via a user account issued to or created by Client, as more fully described in Section 2.2. 
   5. “Claim” has the meaning set forth in Section 7.1.
   6. “Client Data” means the data and information recorded, uploaded, submitted, or transmitted by Client to the Provider Platform or to Provider or an Authorized Reseller in connection with Client’s use of the Products, excluding Provider Data. For the avoidance of doubt, Client Data includes the raw audio recordings captured at Client’s retail site by Provider Hardware and/or third-party hardware and subsequently uploaded, submitted, or transmitted by Client to the Provider Platform (“Audio Data”) but excludes any derivatives, analyses and representations of such Audio Data created by or on behalf of Provider other than any Personal Information originally present in such Audio Data and present in such derivatives, analyses and representations.
   7. “Confidential Information” has the meaning set forth in Section 5.1.  
   8. “Discloser” has the meaning set forth in Section 5.1. 
   9. “Documentation” means the documentation, release notes, collateral materials, operating instructions, Reports and any other materials provided to Client by Provider or an Authorized Reseller which relate to or accompany the Products.
   10. “Feedback” has the meaning set forth in Section 3.1.3.
   11. “Losses” has the meaning set forth in Section 7.1.
   12. “Indemnified Party” has the meaning set forth in Section 7.3.
   13. “Indemnifying Party” has the meaning set forth in Section 7.3.
   14. “IPR” means any and all patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
   15. “Models” means predictive models developed, improved or trained by processing Client Data through the Provider Software or Provider SaaS Offering.
   16. “Order” means an order form executed by Client and Provider or an Authorized Reseller, and referencing this Agreement, through which Client obtains a license to the Provider SaaS Offering and/or certain Provider Services and Provider Hardware subject to the terms and conditions of this Agreement. 
   17. “Personal Information” means data or analyses which disclose information about an identifiable individual.
   18. “Products” means the Provider Saas Offering, Provider Services, Provider Hardware and/or any other Provider product or services, as set forth on an applicable Order.
   19. “Provider Data” means all data, information and results relating to the provision, use or performance of the Provider SaaS Offering to the extent that they do not embody or contain any Client Data. Provider Data includes all analyses, derivatives and Reports containing such data, information and results, whether or not developed using Client Data. Provider Data excludes Audio Data but includes all analytics, statistics, aggregate data, representations, Models and Reports relating to Audio Data to the extent that they do not constitute Personal Information originally present in such Audio Data.
   20. “Provider Hardware” means any hardware made available to Client by Provider, either directly or through an Authorized Reseller. 
   21. “Provider IPR” means all IPR owned, developed, or licensed by Provider or its Affiliates or Authorized Resellers, including all IPR in and to the Provider Technology.
   22. “Provider Platform” means Provider’s proprietary technology platform that powers the Provider SaaS Offering.
   23. “Provider SaaS Offering” means the Provider Software provided and made available as software-as-a-service that is accessible to Client through the Provider Platform, as set forth in the applicable Order(s).
   24. “Provider Services” means the and professional, maintenance or support services, if any, which Provider provides to Client under this Agreement, as may be described on an Order. 
   25. “Provider Software” means the software, in object code form, and related Documentation which is owned, developed or licensed by Provider, including all updates and upgrades thereto.
   26. "Provider Technology” means (a) the Documentation, Models, Products, Provider Data, Provider Hardware, Provider Platform, Provider SaaS Offering, Provider Software, Reports and any other technology, information, documents, products, and materials in any form which are developed by or on behalf of Provider or its agents, contractors, employees or Affiliates, including, except to the extent expressly set forth on an applicable Order, any of the foregoing developed as part of, in relation to or as a result of the Provider Services; (b) all other technology, information and materials developed by Provider or its Affiliates, or any contractors, consultants or outsourcing providers thereof, whether or not related to this Agreement or the Provider Services; in each case of (a) and (b), including all improvements, enhancements or modifications thereto.
   27. “Recipient” has the meaning set forth in Section 5.1. 
   28. “Report” means a report, presentation, analysis or other deliverable which is generated or made available to Client, in whole or in part, by or through the Provider SaaS Offering. [For clarity, Reports include all analyses and derivatives of Client Data made available to Client by Provider, whether on or through the Provider Platform or otherwise (such as in connection with the Provider Services).]
   29. “Representatives” means, with respect to a Party, such Party’s Affiliates, and the employees, directors, officers, advisors, consultants, subcontractors or other agents or representatives of such Party and its Affiliates.
   30. “Taxes” has the meaning set forth in Section 4.3.
   31. “Term” has the meaning set forth in Section 9.1.
   32. “Third Party Agreement” has the meaning set forth in Section 6.1.
   33. “Third Party Code” has the meaning set forth in Section 6.1. 
   34. “Third Party Services” has the meaning set forth in Section 6.2.

2. PROVIDER PRODUCTS
   1. Products. Subject to the terms and conditions of this Agreement and to the extent set out in an Order that has been duly agreed and executed by Provider, Provider will make certain Products available to Client and its Authorized Users. Each Order will set forth (a) the Products being licensed or provided by Provider; (b) the fees payable by Client for such Products; and (c) certain terms and conditions related to the foregoing (a)-(b), which will apply solely to the extent they are not inconsistent with those set forth in this Agreement. To the extent that Products set out in an Order include Provider Software, such Provider Software and its associated functionality will be provided to Client through the Provider Platform and in the form of the Provider SaaS Offering, on a hosted “as-a-service” basis, to collect, store and process Client Data. 
   2. User Accounts. Provider or Authorized Reseller will establish one or more administrative user accounts which enable Client to (a) access and use the Provider Platform; and (b) create additional user accounts for its Authorized Users. Client will inform each Authorized User of the applicable limitations and restrictions set forth in this Agreement, and require each Authorized User to comply with such terms. Client will not permit any employee, independent contractor or other third party who is not an Authorized User to access or use the Provider Platform and will not disclose the access credentials of Client or any Authorized User other than as necessary to enable Client and its Authorized Users to access and use the Provider Platform in accordance with this Agreement. Client will notify Provider immediately if Client knows of or has reason to suspect the unauthorized access to or use of the Provider Platform or the unauthorized disclosure, loss or theft of any access credentials of an Authoorized User. Client will be responsible for all activities relating to the access to or use of the Provider Platform by Client and its Authorized Users, or by any third parties accessing the Provider Platform using the access credentials of Client or its Authorized Users.
   3. Reports. During the Term, Provider may from time to time make certain Reports available to Client, whether through the Provider Platform or otherwise. Client’s rights, during and after the Term, to use such Reports are set forth in Section 3.2.1(b).
   4. Restrictions. Without limiting any other provision of this Agreement, Client will not (and will not permit any Authorized User or third party to): (a) access or use the Provider Platform or any portion thereof for any purpose or in any manner other than for Client’s business purposes in accordance this Agreement; (b) attempt or purport to sell, lease, sublicense, assign, or transfer access to the Provider Platform or any portion thereof to any third party, other than providing access to Authorized Users as expressly permitted under this Agreement; (c) copy, modify, translate, decompile, disassemble, reverse engineer, or otherwise determine or attempt to determine source code or protocols from any executable code of the Provider Platform, and Client hereby agrees that any works created in violation of this subsection are derivative works, and as such, Client assigns all right, title and interest therein to Provider; (d) provide any means of access to, or otherwise display or transmit, the Provider Platform from or through any website (including by “framing” or “mirroring”) other than the website provided by Provider for such purpose; (e) remove any disclaimer, copyright, trademark, confidentiality, or other legal notice from the Provider Platform or any portion thereof (including any related Reports or other Documentation); (f) use the Provider Platform or any portion thereof for any fraudulent or unlawful purpose or in any manner that would violate the legal rights of any third party; (g) interfere with or disrupt the Provider Platform or the Provider Software, or any servers, software or networks used to make the Provider Platform or Provider Software available; and (h) upload to the Provider Platform or use the Provider Platform to process any (A) content or other materials containing any virus, worm, Trojan horse, time bomb, spyware, malware or other harmful or potentially harmful code; (B) sensitive Personal Information (such as government-issued identification numbers, financial account information and health information); or (C) any other information that is deemed sensitive under applicable laws or regulations. Provider will have the unrestricted right, but not the obligation, to monitor use of the Provider Platform and all components thereof by Client and its Authorized Users. Client will, and will cause each Authorized User to, use the Provider Platform and all portions thereof in accordance with the terms of this Agreement and all applicable laws and regulations.
   5. Compliance with Privacy Laws. Client represents and warrants that it will, at all times, comply with all applicable laws, regulations and best practices concerning privacy, data protection and the collection and use of any Audio Data, Personal Information and Provider Data. Client will, at minimum, take the following measures to ensure such compliance: (a) maintain a privacy policy governing the activities of Client and all Authorized Users; (b) obtain all necessary consents and provide all required notices to collect and use all Client Data and Personal Information as contemplated herein; (c) implement necessary technical and organizational measures to ensure the security of Personal Information; and (d) promptly notify Provider of any breach or suspected breach of the obligations set out in (a)-(c) and cooperate with Provider in good faith to remedy and mitigate the effects of any such breach. Client acknowledges that Provider may, at its sole discretion, immediately terminate this Agreement upon a failure by Client to comply with this Section 2.5, in addition to any other remedies available to Provider under applicable law.
3. INTELLECTUAL PROPERTY RIGHTS 
   1. Ownership
      1. As between the Parties, Provider exclusively owns and retains all right, title and interest  in and to the Provider Technology and Provider IPR. The entire right title and interest in any Provider Technology and Provider IPR will vest in Provider upon creation of such Provider Technology and Provider IPR, and in the event Client is deemed to obtain an interest in any Provider Technology or Provider IPR, Client hereby assigns to Provider, without further consideration, all of Client’s right, title, and interest in and to such Provider Technology and Provider IPR.
      2. Subject to the rights expressly granted under this Agreement, as between the Parties, Client exclusively owns and retains all right, title and interest in and to the Client Data.  
      3. Client may, from time to time, provide Provider with suggestions, comments, input and feedback with respect to the Provider Technology (collectively, “Feedback”) including ideas for enhancements, improvements and modifications to the Provider Technology. Client agrees that all Feedback will be the sole and exclusive property of Provider, and Client hereby irrevocably transfers and assigns to Provider all of its right, title, and interest in and to all Feedback, including all IPR embodied therein. 
      4. Except as expressly set forth in this Agreement, no additional rights are granted to (a) Client with respect to the Provider Technology and Provider IPR; or (b) Provider with respect to the Client Data. Without limiting the generality of the foregoing, subject to the rights and licenses granted in this Section 3, nothing in this Agreement is intended to transfer any right, title or interest in or to, or grant any other right or license with respect to, any technology or any IPR except as expressly set forth in this Agreement.
   2. Licenses
      1. Provider License Grant. Subject to the terms and conditions of this Agreement (including satisfaction of all payment provisions), Provider hereby grants to Client:some text
         1. A non-exclusive, non-transferable (except as provided in Section 10.3), non-sublicensable right during the Term to access and use the Provider Platform solely for the Client’s internal business purposes and in accordance with all applicable Documentation; and 
         2. A perpetual, non-exclusive, non-transferable (except as provided in Section 10.3) license to access and use the Reports solely for Client’s internal business purposes, provided that Client may not sell, lease, sublicense, distribute, transmit, broadcast, or otherwise commercially exploit the Reports without the express written consent of Provider. Client acknowledges and agrees that Provider retains all right, title, and interest in and to the Reports, and this license does not grant Client any rights to the IPR in the Reports except for the limited rights expressly granted herein.
      2. Client License Grant. Subject to the terms and conditions of this Agreement Client hereby grants to Provider a worldwide, non-exclusive, sublicensable, royalty-free license under Client’s rights in the Client Data to store, access, view, copy, analyze and modify the the Client Data, for purposes of: (a) providing the Provider Platform and Provider Services to Client; (b) generating, analyzing, storing and exercising its rights relating to Provider Data, Provider Technology and Provider IPR; and (c) training, testing, or enhancing the Models used by Provider in the course of business or otherwise improving the Provider Platform and Provider Services. 
   3. Further Assurances. Client will execute such documents and take any such other actions reasonably requested by Provider to effectuate the purposes of this Section 3. Client will not take any action to jeopardize, limit or interfere in any manner with Provider’s ownership of and rights with respect to the Provider IPR.
4. FINANCIAL TERMS 
   1. Fees. Client will make payments to Provider as set forth on each applicable Order and in accordance with this Section 4. 
   2. Payment. Unless otherwise set forth on the applicable Order, Provider will issue invoices for the fees payable by Client under this Agreement, and payment is due net thirty (30) days after Client’s receipt of each invoice from Provider. Unless otherwise set forth on the applicable Order, fees will be invoiced by Provider and payable by Client: (a) in the month after Provider Services are performed, for Provider Services; and (b) monthly in advance, for recurring subscriptions and all other fees.
   3. Taxes. All amounts and fees stated or referred to in this Agreement (including in any applicable Order) are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Client will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made under this Agreement, other than any taxes based on Provider’s net income.
5. CONFIDENTIALITY
   1. “Confidential Information” means and includes any proprietary information, software (source code and object code), data, technical data and information, trade secrets or know-how, product plans, products, reports, developments, inventions, processes, methods, technology, information related to IPR, business plans and other business information, financial information, operational information, customers, customer lists, vendors or other information disclosed or provided by or on behalf of one Party (“Discloser”) or any of its Representatives to the other Party or any of its Representatives (“Recipient”), whether before or after the Effective Date and whether in writing, orally, visually (or other non-tangible format) or any other means. For the avoidance of doubt, the Confidential Information of Client includes Client Data and the Confidential Information of Provider includes Provider Data and the Products, including the Provider Software (in source code, object code or any other format), and Documentation provided by Provider under this Agreement. Notwithstanding the foregoing, the term “Confidential Information” will not, for purposes of this Agreement, include information that: (a) was or becomes available to Recipient or its Representatives on a nonconfidential basis from a source other than Discloser or its Representatives; provided that such source is not bound by any confidentiality agreement with Discloser, or other contractual, legal or fiduciary obligation of confidentiality; (b) at the time of disclosure or thereafter is or becomes available to and widely known by the public as to be reasonably regarded as public information, other than as a result of disclosure by Recipient or any of its Representatives in breach of this Agreement; (c) is developed by Recipient independently of any disclosure hereunder or reference to Discloser’s Confidential Information, as evidenced by sufficient documentation provided by Recipient, and without violating any of Recipient’s obligations under this Agreement; or (d) is disclosed by Recipient with Discloser’s prior written express approval.  
   2. Disclosure and Use. Recipient will maintain all of Discloser’s Confidential Information in confidence and will protect such information with the same degree of care that Recipient exercises with its own Confidential Information, but in no event less than a reasonable degree of care. Except as permitted under the terms and conditions in this Agreement or as otherwise authorized by Discloser in writing, Recipient will not use Discloser’s Confidential Information except for the purpose exercising its rights and performing its obligations under this Agreement. Recipient will not divulge or disclose Discloser’s Confidential Information or any information derived therefrom to any third party except to Representatives of Recipient, and will limit access to and use of any of Discloser’s Confidential Information to those Representatives of Recipient who have a need to use the Confidential Information to exercise Recipient’s rights under or perform this Agreement, and who are subject to a contractual, professional or other obligation to keep such information confidential, with such obligation no less protective or stringent than the obligations contained in this Section 5. Each Party will be responsible for violation of this Section 5 by its Representatives. If Recipient suffers any unauthorized disclosure, loss of, or inability to account for Discloser’s Confidential Information, Recipient will promptly notify and cooperate with Discloser, and take such actions as may be necessary or reasonably requested by Discloser to minimize the damage. If Recipient is legally required to disclose Discloser’s Confidential Information, Recipient will, as soon as reasonably practicable, provide Discloser with written notice of the applicable order or subpoena creating the obligation to enable Discloser to seek a protective order or other appropriate remedy, unless such notice is prohibited by applicable law. In addition, Recipient will exercise reasonable efforts, at Discloser’s expense, to obtain assurance that confidential treatment will be accorded to such Confidential Information and will make no disclosure in excess of that which is required. All of Discloser’s Confidential Information disclosed to Recipient, and all copies thereof, are and will remain the property of Discloser.  For avoidance of doubt, nothing in this Section 5 will limit or prevent either Party from exercising the licenses and other rights expressly granted to such Party under this Agreement.
   3. Publicity.  Notwithstanding anything else contained in this Agreement, Client agrees that Provider may publicly disclose that Client is a customer of Provider and use the Client’s name, logo, trademarks, service marks, or other identifying indicia in connection with such publication, provided that such use will be be subject to any trademark policies and guidelines communicated by Client to Provider in writing from time to time in advance of Provider’s applicable use. In addition, Client agrees to act as a reference customer for Provider during the Term and for up to twelve (12) months after the expiration or termination of this Agreement.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
   1. Open Source Software. The Provider Software may include certain “Open Source Software”. To the extent the Provider Software incorporates any open source or other third party code (“Third Party Code”) that subjects the Client or its Authorized Users to a third party license agreement (“Third Party Agreement”), to Provider’s reasonable knowledge (a) Provider and the Provider Software are in compliance with such Third Party Agreement, including any attribution or source code disclosure requirements thereunder; and (b) the Provider Software does not include any Third Party Code subject to the Affero General Public License or a similar Third Party Agreement pursuant to which software transmissions or remote use constitute distribution of the Third Party Code. Any provisions in this Agreement which differ from any Open Source Software license are offered by Provider alone and not by any other party. 
   2. Third Party Services. In addition to Third Party Code, the Provider Platform and certain functionality thereof may from time to time provide Client or Authorized Users with access to, or allow for the routing or transmission of, certain other services and software, hardware or other materials made available by third parties (“Third Party Services”). Third Party Services may be made available by or incorporated into the Provider Platform for any purpose, and Provider makes no representations as to the completeness, accuracy, reliability, validity, timeliness, integrity, quality, legality, usefulness or safety of any or all of the Third Party Services or the Provider Platform provided to Client under this Agreement. Such Third Party Services are subject to change at any time without notice, and Provider may block or disable access to any Third Party Services (in whole or part) through the Provider Platform at any time. Provider disclaims all liability and responsibility arising from any reliance placed on any Third Party Services by Client, Authorized Users or third parties. Provider neither controls nor endorses, nor is responsible for, any Third Party Services or any IPR therein. Nothing in this Agreement will be deemed to be a representation or warranty by Provider with respect to any Third Party Services, and Provider has no obligation to monitor Third Party Services (which may be inaccurate, misleading or deceptive). In addition, the availability of any Third Party Services through the Provider Platform does not imply Provider’s endorsement of, or affiliation with, any provider of such Third Party Services. CLIENT’S USE OF THIRD PARTY SERVICES IS AT CLIENT’S OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY SERVICES (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY SERVICES).
   3. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is a corporation duly organized and validly existing under the laws of the jurisdiction in which it was incorporated; (b) it has all requisite corporate power and authority to execute and deliver this Agreement and perform its obligations under this Agreement; and (c) the execution, delivery and performance of this Agreement by it does not and will not conflict, violate or breach any other contract or obligation of such Party or any applicable law or regulation to which such Party is subject. 
   4. Client Warranty. Client represents, warrants and covenants to Provider that: (a) it will implement and maintain measures to comply with any applicable laws and regulations in connection with the activities undertaken by Client under this Agreement, including in connection with its use of the Provider Platform; (b) Client has all necessary rights and permissions to collect, use and license the Client Data in compliance with all applicable data protection and privacy obligations, laws, rules and regulations, including all necessary consents to upload and transmit the Client Data to the Provider Platform as contemplated by this Agreement; (c) Provider’s use of the Client Data as contemplated in this Agreement will not infringe, violate or misappropriate any intellectual property or intellectual property rights of any third party; and (d) it will fulfill any obligations under applicable laws and regulations with respect to its retail activities involving the collection and use of Client Data, including Audio Data, and Personal Information of Client’s personell and customers, by honoring any opt-out or take-down requests of individuals under applicable laws and regulations. 
   5. Provider Warranty. Provider represents and warrants to Client that: (a) it will perform the Provider Services in a professional and workmanlike manner, in accordance with the standards of care and diligence practiced by providers of similar services in similar circumstances. In the event of a breach of this Section 6.5, Client’s sole and exclusive remedy, and Provider’s sole obligation, will be re-performance of the applicable Provider Services, at no additional cost to Client, within a reasonable time after Client provides written notice of such breach to Provider; and (b) Provider will employ reasonable administrative, technical, and physical safeguards intended to protect the confidentiality, integrity, and availability of the Client Data maintained on the Provider Platform. Notwithstanding anything to the contrary in this Agreement, in the event of any breach by Provider of the performance warranties contained in this Section 6.5, Client’s sole and exclusive remedy, and Provider’s sole obligation, will be to have Provider correct the nonconformance in the Provider Platform or Provider Services (as applicable). 
   6. Disclaimer. EXCEPT FOR PROVIDER’S REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND REPORTS UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” “WHERE IS” AND “WHERE AVAILABLE” BASIS, AND PROVIDER MAKES NO (AND HEREBY DISCLAIMS ALL) FURTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PROVIDER PLATFORM AND PROVIDER SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITATION OF THE FOREGOING, PROVIDER DOES NOT REPRESENT OR WARRANT THAT ACCESS TO THE PROVIDER SERVICES OR PROVIDER PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE.
   7. Injunctive Relief. In the event of a breach or threatened breach by Client of Section 5 or any license restrictions, or any use of Provider IPR outside the scope of the applicable licenses and rights granted under this Agreement, Provider will be entitled, in addition to any other rights and remedies it may have, to seek an injunction or other equitable relief to prevent such breach or threatened breach and to secure the enforcement of the applicable provisions of this Agreement. Client acknowledges and agrees that a breach or threatened breach of such provisions would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief and any other relief that may be available from any court, and Client hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such relief. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
7. INDEMNIFICATION
   1. By Client. Client will defend Provider and its Affiliates and Authorized Resellers and each of their respective officers, directors, employees, agents, successors and assigns (each a “Provider Indemnified Party”) from and against any causes of action, suits or proceedings brought by a third party (each a “Claim”) made or brought against a Provider Indemnified Party to the extent arising out of or attributable to (a) a violation of applicable law by Client; (b) Client’s willful misconduct, gross negligence or intentional misrepresentation; (c) an allegation of infringement, violation or misappropriation of third party IPR or other proprietary rights by Client Data or other materials provided by Client hereunder; (d) use of the Provider Platform, Provider Data (including Reports), Provider Services by Client or an Authorized User in any manner inconsistent with this Agreement; (e) any products or services that Client provides to its retail customers independent of the Provider Services (including any breach or alleged breach by Client of its obligations to such customers); and (f) any breach of this Agreement by Client or it’s Authorized Users, including any breach of Client’s representations, warranties and covenants herein. Client will indemnify and hold Provider Indemnified Parties harmless for any and all losses, damages, liabilities, deficiencies, claims, judgments, settlements, interest, awards, penalties, fines, costs and expenses (“Losses”) incurred in connection with such Claims. 
   2. By Provider. Provider will defend, indemnify, and hold harmless Client and its Affiliates and each of their respective officers, directors, employees, agents, successors and assigns (each a “Client Indemnified Party”) from and against Claims to the extent arising out of or attributable to (a) a violation of applicable law by Provider; (b) allegations that, if true, would constitute a breach by Provider of any of its representations and warranties under this Agreement; and (c) allegations that the Provider IPR, when used within the scope of this Agreement, infringes or misappropriates the IPR of a third party.  Provider will indemnify and hold Client Indemnified Parties harmless for any and Losses incurred in connection with such Claims. Notwithstanding the foregoing, Provider will have no obligation under this Section 7.2 to the extent any Claim is based upon or arises from (i) the Client Data; (ii) any combination of Provider IPR with any other IPR not provided by Provider; or (iii) any modification of the Provider IPR not made by Provider. If Provider becomes aware of an infringement or potential infringement claim related to the Provider IPR, Provider, at its sole discretion and at no cost to Client, may either modify the Provider IPR to be non-infringing while providing functionally equivalent performance or obtain a license for Client to continue using the Provider IPR, provided that if Provider determines neither of the foregoing alternatives is is reasonably available then Provider may terminate this Agreement upon written notice to Client. This Section 7.2 states Provider’s entire liability and Client’s exclusive remedy for any infringement of IPR.
   3. Indemnification Process. The Party seeking indemnification under this Section 7 (the “Indemnified Party”) must: (a) notify the other Party (the “Indemnifying Party”) in writing of the applicable Claim promptly; (b) give the Indemnifying Party control of the defense and related settlement negotiations; and (c) cooperate with the Indemnifying Party in defending or settling such Claim. The Indemnifying Party will not enter into any settlement or other compromise that imposes any cost or obligation on the Indemnified Party or otherwise adversely affects the Indemnified Party without the Indemnified Party’s written approval, not to be unreasonably withheld. The Indemnified Party may participate in the defense and settlement of the claim with counsel of the Indemnified Party’s choice at the Indemnified Party’s expense. 

LIMITATION OF LIABILITY TO THE EXTENT PERMITTED BY APPLICABLE LAW OR REGULATIONS OR AS EXPRESSLY SET FORTH IN THIS SECTION, EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS AND BREACHES OF SECTION 5 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUSINESS INTERRUPTION OR LOSS OF INCOME, DATA, PROFITS, OR REVENUE, UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF PROVIDER UNDER THIS AGREEMENT WITH RESPECT TO ANY CLAIM WILL NOT EXCEED THE GREATER OF (A) THE AMOUNT PAID OR PAYABLE BY CLIENT HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH CLAIM OCCURRED; OR (B) ONE-HUNDRED DOLLARS ($100). IN ADDITION, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, PROVIDER WILL HAVE NO LIABILITY FOR ANY LOSSES CAUSED BY (I) UNAUTHORIZED USE OF THE PROVIDER SERVICES, PROVIDER PLATFORM OR PROVIDER IPR; (II) MODIFICATIONS TO ANY OF THE FOREGOING BY ANYONE OTHER THAN PROVIDER; OR  (III) THE COMBINATION OF ANY OF THE FOREGOING WITH ANY OTHER DATA, TECHNOLOGY THIRD PARTY SERVICES. 

9. TERM AND TERMINATION
   1. Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with this Section 9, will continue for the subscription term as specified on the applicable Order (the “Term”). 
   2. Termination. Each Party may immediately terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Except as expressly stated otherwise in an applicable Order, Provider may also terminate, or direct an Authorized Reseller to terminate, this Agreement effective upon the later of ninety (90) days’ notice or the conclusion of the first twelve (12) month period of the subscription term (as specified on the applicable Order) in the event that Provider for any reason elects to discontinue the publication, distribution, sale or licensing of any or all of the applicable Products.
   3. Effect of Termination. Upon expiration or termination of this Agreement for any reason: some text
      1. Client’s right to receive, access and use the Provider Platform and the Provider Services will immediately terminate, and all Authorized Users will immediately cease use of the Provider Platform. 
      2. Subject to the limited license granted Client in Section 3.2.1(b), Client will immediately cease all use of the Provider Data.
      3. Each Party will promptly return, or if requested by the other party, destroy, any materials then in its possession or control containing or constituting Confidential Information of the other Party. Subject to Client’s ongoing rights to the Reports as set forth in Section 3.2.1(b), Client will promptly return to Provider or destroy, at Provider’s direction, all Provider IPR which is then in the possession or control of Client or its Afilliates or Authorized Users.
      4. Client will pay all unpaid invoices issued by Provider under this Agreement.
      5. Termination of this Agreement by either Party will not act as a waiver of any breach of this Agreement and will not act as a release of either Party from any liability for breach of such Party’s obligations under this Agreement. Expiry or termination of this Agreement will not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of expiry or termination. Except where otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies that the Party may possess at law or in equity. The following Sections will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 3 (Intellectual Property Rights), 4 (Financial Terms) (solely with respect to payment obligations arising during the Term), 5 (Confidentiality), 7 (Indemnification), 8 (Limitation of Liability), 10 (General); and Sections 2.2 (User Accounts) (solely with respect to the final sentence), 2.4 (Restrictions), 6.6 (Disclaimer),  6.7 (Injunctive Relief) and 9.3 (Effect of Termination).
10. GENERAL 
    1. Interpretation. For purposes of interpreting this Agreement, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “under this Agreement” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph; (c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; and (d) the captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
    2. Notices. All notices and requests in connection with this Agreement will be deemed given as of the day they are received at the address set forth below (or at such other address as a Party may designate pursuant to this notice provision), provided, however, that any notice to Provider under Section 5 or Section 7.3 will request a receipt thereof confirmed by email or in writing by Provider and will be followed by personal or mail delivery of such notice, and the effective date of such notice will be the date or receipt, provided such receipt has been confirmed by Provider: 
       1. To Provider:  
          InStore.ai, Inc., 
          attn: Instore.ai Legal Department 
          650 Fremont Avenue, m-104, Los Altos, CA 94024
          Email: Legal@instore.ai
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       2. To Client:
          Email or physical address on the applicable Order
    3. Assignment. Neither Party will (nor will either Party have the right to) assign or otherwise transfer, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement without the consent of the other Party, not to be unreasonably withheld, except that either Party may assign or otherwise transfer this Agreement to an Affiliate or as part of a merger, consolidation, corporate reorganization, sale of all or substantially all of such Party’s assets, sale of stock, change of name or like event, or in connection with a sale of such Party’s assets to which this Agreement relates. Any purported assignment or transfer of this Agreement, except as permitted under this Section 10.3, is null and void. 
    4. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. Each Party agrees that any legal action, suit or proceeding that may be brought by either Party arising out of or in connection with this Agreement must be brought in the federal or state courts located in Santa Clara County, California, and each Party hereby consents to the personal jurisdiction of such courts. Notwithstanding the foregoing, nothing in this Agreement will limit the right of either Party to seek injunctive or other equitable relief, enforcement or defense in any court of competent jurisdiction.
    5. Waiver. The waiver by either Party of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of the Agreement, nor will any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have under this Agreement operate as a waiver of any other right or remedy. 
    6. Severability. If the application of any provision or provisions of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by any court of competent jurisdiction, then (a) the validity and enforceability of such provision or provisions as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby; and (b) such provision or provisions will be reformed without further action by the Parties hereto and only to the extent necessary to make such provision or provisions valid and enforceable when applied to such particular facts and circumstances.
    7. Relationship of the Parties. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties; the Parties will at all times be and remain independent contractors and neither Party nor its agents have any authority of any kind to bind the other Party in any respect whatsoever. For clarity, nothing in this Agreement prevents Provider from using subcontractors in connection with provision of the Provider Services and Client agrees that Provider may use such subcontractors.
    8. Force Majeure. Neither Party will be liable under this Agreement by reason of any failure or delay in the performance of its obligations under this Agreement (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages, provided that the non-performing Party must use commercially reasonable efforts to resume performance as soon as possible after such an event occurs.
    9. Counterparts. This Agreement may be executed in one or more counterparts, with the same effect as if the Parties had signed the same document. Each counterpart so executed will be deemed to be an original, and all such counterparts will be construed together and will constitute one Agreement. 
    10. Entire Agreement. This Agreement, including the Orders and other Exhibit(s) which are incorporated herein, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions and agreements, whether oral or written, and all communications between the Parties relating to the subject matter of this Agreement and all past courses of dealing or industry custom. No amendment or modification of any provision of this Agreement will be effective unless in writing and signed by a duly authorized signatory of Client and Provider.

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