SaaS Licensing Agreement — SuperCat Solutions

This Software-as-a-Service (SaaS) Agreement ("Agreement"), is by and between SuperCat Solutions, LLC, a North Carolina limited liability company ("Licensor") and the organization utilizing Licensor Services identified in the signature section ("Licensee") and incorporates by reference the terms of the services proposal ("Proposal") entered into by the parties on the date hereof. In the event of a conflict between the terms of this Agreement and the Proposal, the terms of this Agreement shall be controlling.

Definitions

The following definitions (and additional definitions provided below) will apply:

"Activation Date" means the date that Licensor first makes the Service available to Licensee to begin configuration of the system, regardless of the Licensee's actual implementation of the final configuration.
"Licensee Data" means data, information, or material provided or submitted by Licensee or any User to Licensor in the course of utilizing the Service.
"eCat Administrator" means the User or Users designated by Licensee to serve as the Licensee's eCat project manager(s).
"Services Pricing Schedule" means the Pricing Schedule in the Proposal, also referred to as "Service Agreement & Pricing Schedule" or "Proposal."
"Service" means Licensor's software service, which is designated as "eCat" and described in Exhibit A. The Service consists of (i) an interactive product catalog application that runs on an Apple iPad and is distributed through Apple's app store under the name "eCat-Sales Rep", (ii) an account on a data storage server, (iii) an account on a web server where the back end web application software runs, and (iv) a set of web application programs that manipulate product and user data and serve it to the iPads for the purpose of enabling Licensee's sales representatives to present product photos and product information to Licensees' customers, and write and transmit orders to Licensee. The "Service" specifically does not include new product or service releases by Licensor other than "eCat - Sales Rep."
"Storage Server" means the cloud based computer server that shall store Licensee Data, System Configurations and other data.
"System Configurations" means any of the models, business processes, inventory related processes, reports and any other items that are to be configured within the application.
"User" means one of Licensee's employees, representatives, consultants, contractors or agents, or other persons expressly authorized by Licensee to use the Service in connection with Licensee's business affairs, and who have been supplied User identifications and passwords by Licensee (or by Licensor at Licensee's request).
"Licensor Content" means Licensor-supplied software, text, audio, video, graphics and other information and data available by means of the Service or on Licensor's web site.
"Payment Structure" means either Annual or Monthly payment terms as specified in the Services Pricing Schedule.
"Billing Period" means either a 12-month period for Annual payment structures, a calendar month for Monthly payment structures or as defined in the Services Pricing Schedule and Agreement.
"Initial Commitment Period" means any minimum term requirement specified in the Services Pricing Schedule for Monthly payment structures.

Licensor Obligations

Licensor agrees to grant Licensee a non-exclusive, non-transferable license to use and access the Service during the Term under and subject to the terms of this Agreement.
Licensor agrees to host the Service.
Licensor agrees to provide upgrades to the Service at no additional cost to Licensee as they become available. Licensor has no obligation to include Licensor's other service offerings other than eCat as part of upgrades to the eCat Service.
Licensor agrees to provide secure storage for Licensee Data on the Storage Server.
Licensor agrees to provide ongoing support to Licensee's eCat Administrator for the Service at the cost specified in the Proposal and Pricing Schedule. This support will be provided remotely via telephone or email during business hours (Monday-Friday, 9:00 AM - 5:00 PM Eastern Time, excluding holidays).

Licensee Obligations

Licensee agrees to provide all initial Licensee data and other information required for eCat installation to Licensor in the specified file formats and in a timely manner.
Licensee agrees to regularly upload the data required by eCat to the Storage Server in the file formats specified by Licensor.
Licensee agrees to maintain complete digital product photography in the specified file formats on the Storage Server.
Licensee agrees to use the Service only for testing and configuration purposes until ready for production use.
Licensee agrees that Licensee's eCat Administrator is responsible to use eCat's administrative web site to authorize and manage Users and to configure eCat to meet Licensee's specific needs.
Licensee agrees that Licensee's eCat Administrator(s) will provide all direct communications, training and support to Licensee's eCat users after the Activation Date.
Licensee agrees to be responsible for all activities that occur under Licensee's User accounts, including the responsibility to maintain the security and confidentiality of all User usernames and passwords. Licensee agrees to notify Licensor immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.
Licensee agrees to provide Licensor in writing with billing and contact information as Licensor may reasonably require, including Licensee's legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact, as well as the name, Username and password of the eCat Administrator. Licensee agrees to update this information promptly via the Service or by means of email to service@supercatsolutions.com, and in any case within 15 days, if there is any change.
Licensee agrees to pay fees and costs as set forth in the Services Pricing Schedule and elsewhere in this Agreement.

Fees & Payment

Implementation Fee. Licensee agrees to pay an implementation fee as specified in the Services Pricing Schedule. The implementation fee is due upon the Activation Date.
Platform License Fees. Platform fees commence on the Activation Date and continue for the Initial Term and any renewal periods. The payment structure and amounts will be defined in the Services Pricing Schedule.
User-Based Licensing. Licensee may add Users at any time utilizing the Service management features. A User is billable if their account is available for login and accessed during a billing period. Account sharing is prohibited; multiple iPad access from single accounts may incur additional charges. User fee calculations, reconciliation periods, and billing methods are specified in the Services Pricing Schedule based on the selected payment structure.
Payment Structure Terms.
- Annual Payment Structure: Terms as specified in the Services Pricing Schedule, including user reconciliation periods and payment deadlines.
- Monthly Payment Structure: Platform fees incurred in advance and user overages in arrears as detailed in the Services Pricing Schedule.
Invoicing and General Payment Terms. All amounts are exclusive of applicable taxes, levies, or duties, payable in United States Dollars. Billing disputes must be submitted in writing within 30 days of invoice date. Accounts are delinquent if payment is not received by the due date specified.
Initial Term Pricing. The fees set forth in the Services Pricing Schedule are guaranteed for the Initial Term specified therein.
Price Modifications. Following the Initial Term, Licensor may modify fees upon sixty (60) days written notice to Licensee. Such modifications shall become effective at the next Renewal Term.
Frequency Limitation. Price increases shall not occur more than once per twelve (12) month period.
Excess Data Storage Fees. Licensee agrees to pay Excess Data Storage Fees if storage exceeds the limit specified in the Services Pricing Schedule (or 50GB if not otherwise specified). Charges based on maximum monthly usage at prevailing rates.
Travel Expenses. Licensee agrees to reimburse Licensor for reasonable travel expenses pre-approved by Licensee for on-site work.
Professional Services. Custom programming and training beyond the scope defined in the Services Pricing Schedule will be billed at the standard developer hourly rate specified therein, or at prevailing rates.
Delinquent Accounts. If Licensee's account becomes delinquent, Licensor reserves the right to suspend and/or terminate access to the Service.

Appropriate Use of the Service

Licensee agrees to use eCat only for sales of Licensee's products and explicitly agrees not to provide eCat services to third parties except Users. While Users may be any persons that Licensee authorizes to use the Service for its business, including, but not limited to, Licensee's employees and contractors, Licensee agrees not to sublicense, resell or supply the Service for use in or for the benefit of any other organization, entity, business, or enterprise without Licensor's prior written consent.
Licensee agrees that it is licensed to store and display the Licensor Content and to permit Users to access it only in connection with use of the Service and only during the Term of this Agreement, and that no other use of Licensor Content is permitted.
Licensee agrees not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, offensive, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively "Objectionable Matter"). Licensee agrees that it is responsible to ensure that its Users do not submit any Objectionable Matter. In addition, Licensee agrees that Licensor may, at its option, adopt and enforce rules for permitted and appropriate use, updating them from time to time and notifying Licensee via email, and that Licensee and Licensee's Users will be bound by any such rules. Licensor reserves the right to remove any Licensee Data that constitutes Objectionable Matter or violates any Licensor rules regarding appropriate use, but is not obligated to do so. Licensee agrees that Licensee and Licensee's Users will comply with all applicable laws regarding Licensee Data, use of the Service and the Licensor Content, including laws involving private data and any applicable export controls.
Licensor reserves the right to suspend or terminate immediately any Licensee or User account for activity that is in violation of paragraphs 5.1, 5.2 or 5.3 above, or that is disrupting or causing harm to Licensor's computers, systems or infrastructure or to other parties, or is in violation of state or federal laws regarding "spam," including, without limitation, the CAN-SPAM Act of 2003 or similar act within the country from which the service is contracted. Any such spamming activity by Licensee will be considered a material breach of this Agreement.
Licensor reserves the right to terminate this Agreement for cause if Licensee materially breaches the provisions of this Section 5.

Licensee Data and System Configuration

Licensee agrees to be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions of all Licensee Data.
Licensor agrees not to use Licensee Data for any purpose other than to provide the Service to Licensee.
Licensee agrees that Licensor may aggregate anonymous statistical data regarding frequency of use by the various Users and functioning of its systems. Such aggregated statistical data will be the sole property of Licensor.
Subject to the terms and conditions of this Agreement, Licensee grants to Licensor a nonexclusive limited license to use, copy, store, transmit and display Licensee Data to the extent reasonably necessary to provide and maintain the Service.
Licensor will use commercially reasonable security measures to protect Licensee Data and System Configurations against unauthorized disclosure or use.

Licensor's Ownership

Licensor retains all rights in the licensed software and Licensor Content. This Agreement grants absolutely no ownership rights to Licensee. The Licensor name, the Licensor logo, and the product names associated with the Service are trademarks of Licensor or third parties are owned by Licensor or such third party, and they may not be used without Licensor's prior written consent.
Licensor reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time.
Licensee acknowledges that the Licensor Content contains material that is protected by applicable intellectual property and other laws, including but not limited to copyright, patent, trademark and service marks and that neither Licensee nor Licensee's Users will use Licensor Content for any purpose other than those permitted by this agreement.
Licensee agrees that neither Licensee nor Users will copy, duplicate, adapt, reverse engineer, disassemble, decompile, or otherwise attempt to tamper with the Licensor Content or any other Licensor provided software.
Licensee acknowledges that any violation of Licensor's intellectual property rights will cause irreparable harm to Licensor and that in the event of such violation Licensor will be entitled to enforce this license and to receive judgement for damages and/or any other remedies provided by the Uniform Trade Secret Act and all other applicable law.

Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
Licensee represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Licensee's billing information is correct.
Licensor represents to Licensee that it is the owner of the Service with all rights to license it to third parties.

Professional Services

Licensee may retain Licensor to perform additional professional services not included in the scope of this Agreement ("Professional Services") as the parties may agree upon in writing in the form of a work order, configuration proposal, email, ticket via an online Licensee support system or other writing ("Work Order"). Licensor will use reasonable efforts to carry out the Professional Services stated in the Work Order and to provide any resulting functionality in the Service made available online to Licensee and Licensee's Users. Except as the parties otherwise agree in a Work Order, Professional Services and the results thereof are made available "AS IS."
Unless otherwise agreed in writing in the Work Order, Professional Services are provided by Licensor on a time and materials basis at Licensor's then applicable rates and subject to such deposit or advance payment as Licensor may require. Maintenance and support of code or functionality created by means of Professional Services will likewise be on a Work Order basis under this Section unless otherwise agreed in writing. The code and functionality made or provided under this Section and all interests therein, including copyrights, will be Licensor's property. Access to the results of Professional Services will be available as part of the Service during the Term unless otherwise agreed in writing. Unless otherwise agreed in a Work Order, Licensor may bill for Professional Services on a weekly or monthly basis, at its discretion.

Indemnification

Licensee will defend, indemnify, and hold Licensor (and its officers, directors, employees, contractors, and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Licensee Data or other data or information supplied by Licensee infringes the intellectual property rights or other rights of a third party or has caused harm to a third party, (ii) arising out of breach of Sections 11 (Appropriate Use of the Service) or 12 (Passwords and Access) above, (iii) any improper use or operation by the Licensee's eCat Administrator.
Licensee will defend, indemnify, and hold Licensor (and its officers, directors, employees, contractors, and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Licensee Data and/or other Licensee-related information or data, including, without limitation, prompt payment to Licensor of all costs (including attorneys' fees) incurred by Licensor as a result. In case of such subpoena or compulsory legal order or process, Licensee also agrees to pay Licensor for its staff time in responding to such third party subpoena or compulsory legal order or process at Licensor's then applicable hourly rates.
Licensor will defend, indemnify, and hold Licensee (and its officers, directors, employees, contractors, and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Service and the software and application underlying the Service infringe or misappropriate the intellectual property rights or other rights of a third party or has caused harm to a third party, (ii) arising out of a breach of Section 8 above, or (iii) any error, malfunction, outage or miscalculation of the Service. Notwithstanding the foregoing, Licensor's indemnification obligations under this Section 10.3 shall be subject to the limitation of liability set forth in Section 11.2.
In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified ("Indemnitee") will provide the indemnifying party ("Indemnitor") reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.

Disclaimers and Limitations

The warranties expressly stated in this agreement are the sole and exclusive warranties offered by licensor. There are no other warranties or representations, express or implied, including without limitation, those of merchantability or fitness for a particular purpose. Licensee assumes all responsibility for determining whether the service or the information generated thereby is accurate or sufficient for licensee's purposes. Licensor does not warrant that use of the system will be error-free or uninterrupted. Licensor is not responsible for software installed or used by licensee or users or for the operation or performance of the internet. Licensor is not responsible for any loss that occurs as a result of miscalculation or any otherwise improper functioning of the services except to the extent caused by the gross negligence or intentional misconduct of licensor. Licensor is not a party to any transactions that occur between licensee and third parties and will therefore not be liable for any financial loss or damages in any form caused by licensee's use of the services provided by the licensor except as provided in section 10.
In no event will either party's aggregate liability in any cause of action arising out of this Agreement exceed fees due to Licensor as specified in the Services Pricing Schedule.
The Service may include gateways, links or other functionality that allows Licensee and/or Users to access third-party services ("Third-Party Services") and/or third-party content and materials ("Third-Party Materials"). Licensor does not supply and is not responsible for any Third-Party Services or Third-Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use. LICENSOR MAKES NO WARRANTY AS TO THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS.
Notwithstanding any other provision, Licensor's liability for data breaches caused by failure to maintain commercially reasonable security measures shall not exceed the total fees paid by Licensee in the twelve (12) months preceding the breach.

Confidentiality

"Confidential Information" means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential. Confidential Information includes the information in this Agreement and in the Services Pricing Schedule.
Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
Each party agrees not to disclose the other party's Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and only as reasonably required for the performance of this Agreement. Each party will hold in confidence the other's Confidential Information by means that are no less restrictive than those used for its own confidential materials. The confidentiality obligations set forth in this Section will survive for three (3) years after the termination or expiration of this Agreement.
Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party's possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party's possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
In case a party receives legal process that demands or requires disclosure of the disclosing party's Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.

Term and Termination

Term Structure. The subscription term for the Service (the "Initial Term") and any renewal terms (each, a "Renewal Term", and together with the Initial Term, the "Term") will be as specified in the Services Pricing Schedule. (a) Annual Terms. For Annual payment structures, the Initial Term (for example, twelve (12), twenty-four (24), or thirty-six (36) months) and any Renewal Term(s) will be as specified in the Services Pricing Schedule. (b) Monthly Terms. For Monthly payment structures, the Term will be month-to-month following any Initial Commitment Period specified in the Services Pricing Schedule. The Term in all cases commences on the Activation Date.
Renewal and Cancellation. (a) Annual Terms. For Annual payment structures, this Agreement will automatically renew for successive Renewal Terms as specified in the Services Pricing Schedule, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current Term. Licensor will provide renewal notice to Licensee, including any fee changes, at least ninety (90) days prior to the end of each Initial Term or Renewal Term. (b) Monthly Terms. For Monthly payment structures, after any Initial Commitment Period the Agreement will continue on a month-to-month basis unless either party provides written notice of termination at least thirty (30) days prior to the desired termination date. (c) No Mid-Term Cancellations or Refunds. Except as expressly provided elsewhere in this Agreement, Licensee's subscription commitments for the then-current Initial Term or Renewal Term are non-cancellable, and all fees paid or payable for such Term are non-refundable, regardless of actual use of the Service.
Service Availability and Billing Commencement. Licensor will use commercially reasonable efforts to make the Service available to Licensee on the Target Activation Date. Billing for all fees (implementation and platform) commences on the Activation Date, regardless of when Licensee begins actual use of the Service for production purposes.
Termination for Cause. Licensor, in its sole discretion, may suspend or terminate Licensee's username and password, account, or use of the Service and/or terminate this Agreement if Licensee materially breaches this Agreement and such breach has not been cured within 15 business days of notice of such breach.
Data Retention Post-Termination. In the event that this Agreement is terminated (for any reason), Licensee agrees and acknowledges that Licensor has no obligation to retain Licensee Data and System Configurations and that Licensor shall delete Licensee Data and System Configurations that remain in Licensor's possession or control more than 60 days after termination.
Return of Licensor Data. In the event this Agreement is terminated (for any reason), Licensee will, within 5 days of such termination, take all efforts to return any and all Licensor Data in Licensee's possession to Licensor.
Business Cessation. In the event of Licensor ceasing its business operations, Licensor shall make reasonable efforts to ensure Licensee has uninterrupted access to the Service. Should Licensor cease its business operations or upon termination of this agreement, Licensee will be entitled to one backup copy of the Licensee Data. Licensor shall have no other responsibility to provide configurations and the software to enable the Licensee to continue use of or to replace the Service.
Survival. The following provisions will survive termination: all definitions, Licensee's accrued financial obligations, the license to Licensee Data to the extent reasonable for Licensor's discharge of its post termination obligations, and the following Sections and paragraphs: Definitions, Licensee Data and System Configurations, Licensor's Ownership, Indemnification, Disclaimers and Limitations, Confidentiality, Survival of Provisions, Notice, Arbitration, and Miscellaneous.

Miscellaneous

Notice. Either party may give notice to the other by means of electronic mail to the other party's email address on record in connection with the account or by written communication sent by first class mail or by courier service to such other party's address on record in connection with the account. Such notice will be deemed to have been given upon receipt. Licensee may give notice to Licensor by email via support@supercatsolutions.com. A party may, by giving notice, change its applicable address, email, or other contact information.
Arbitration. Any and all disputes arising out of or relating to the interpretation or application of this Agreement shall be subject to arbitration in Wilson, North Carolina, under the then existing rules of the American Arbitration Association. Judgment upon the award rendered may be entered in any court of competent jurisdiction. The cost of such arbitration shall be borne equally by the parties. Nothing contained in this Paragraph shall limit the right of the parties to seek a court injunction or other equitable relief in connection with enforcing or otherwise arising out of obligations under Paragraph 12 (Confidentiality) of this Agreement.
Assignment. This Agreement may not be assigned by Licensee without the prior written approval of Licensor. Any purported assignment by Licensee in violation of this Section will be void. This agreement may be assigned by Licensor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Licensor's assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. This Agreement may be enforced by and is binding on permitted successors and assigns.
Choice of Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of North Carolina, without regard to the conflicts of law rules of North Carolina.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No Agency. No joint venture, partnership, employment, or agency relationship exists between Licensee and Licensor as a result of this Agreement or use of the Service.
No Waiver. The failure of Licensor to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Licensor in writing.
Force Majeure. Except for the payment by Licensee, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
Entire Agreement. This Agreement, together with any applicable Schedule(s) including the Proposal, comprises the entire agreement between Licensee and Licensor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. The Services Pricing Schedule is incorporated herein by reference. In the event of any conflict between this Agreement and the Services Pricing Schedule, this Agreement shall control except for commercial terms (pricing, payment terms, and service levels) where the Services Pricing Schedule shall control. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.

Exhibit A — Diagram of Services

The SuperCat product ecosystem and how catalog and order data flow across the platform:

Click to enlarge.