Master License Agreement

This Master Services License Agreement (“Agreement”) is between Real-Omni Channel Commerce, Inc. (“Licensor”) and the entity or individual (“Customer”) who has signed the associated documentation referencing this Agreement for use of the ROC Commerce software (“Product” or “Software”) or ROC Commerce Framework (“Framework”).  Customer agrees that any new features that augment or enhance the Framework, Product, and/or any new Product(s) subsequently purchased by Customer will be subject to the terms of this Agreement. This Agreement also incorporates by reference all Exhibits attached to this agreement as well as supplemental order forms signed by Customer.  With notice to Customer, Licensor may update its terms and conditions. 

1. ROC Commerce Licensing Options and Terms.

1.1 ROC Commerce Software Term License (“Term License”)

1.1.1 ROC Commerce Term License Agreement Scope

The terms of this Term License apply to Customers who have elected to purchase a ROC Commerce Term License and represent the principal terms and conditions that shall apply to Customer’s use of the Product. The Products to be provided under this Agreement shall be specifically described on each Exhibit, Order Form and/or Statement of Work (collectively or independently referred to as “Exhibit”) which shall also reflect the applicable fees for such Products and any other relevant terms and conditions. Any Exhibit executed under this Agreement shall be construed to be incorporated as part of and governed by the terms and conditions of this Agreement. In the event of a conflict between the terms of this Agreement and the Exhibit, the terms of the Exhibit shall control.

1.1.2 ROC Commerce Term License Grant. Upon payment in full of the license fee, and throughout the term, Licensor grants to Customer a limited, revocable, non-exclusive, non-transferable or assignable royalty-bearing, license to access or use the Products as set forth herein and further specified in the applicable Exhibit.  All rights not expressly granted herein are reserved to Licensor.  Such right, if applicable, shall include a username and password that should be kept confidential by Customer.  Customer is responsible for all access through its account.  Licensor shall deliver such materials under this Term License so that Customer may operate the Products under this Agreement and no support, updates, or other ongoing maintenance shall be provided unless specifically purchased by Customers and included in an Exhibit. 

1.2 ROC Commerce Framework License (“Framework License”)

1.2.1 ROC Commerce Framework License Agreement Scope

The terms of this Framework License apply to Customers who have elected to purchase a ROC Commerce Framework License and represent the principal terms and conditions that shall apply to Customer’s use of the Framework. The Framework to be provided under this Agreement shall be specifically described on each Exhibit, Order Form and/or Statement of Work (collectively or independently referred to as “Exhibit”) which shall also reflect the applicable fees for such Framework and any other relevant terms and conditions. Any Exhibit executed under this Agreement shall be construed to be incorporated as part of and governed by the terms and conditions of this Agreement. In the event of a conflict between the terms of this Agreement and the Exhibit, the terms of the Exhibit shall control.

1.2.2 ROC Commerce Framework License Grant. Upon payment in full of the license fee, and throughout the term, Licensor grants to Customer a limited, revocable, non-exclusive, non-transferable or assignable royalty-bearing, license to access or use the Products as set forth herein and further specified in the applicable Exhibit.  All rights not expressly granted herein are reserved to Licensor.  Such right, if applicable, shall include a username and password that should be kept confidential by Customer.  Customer is responsible for all access through its account.  Licensor shall deliver such materials under this Framework License so that Customer may operate the Framework under this Agreement and no support, updates, or other ongoing maintenance shall be provided unless specifically purchased by Customers and included in an Exhibit. 

1.3 Licensor Intellectual Property. All of the software, code, methodologies, tools, processes, procedures, algorithms, and any related documentation or configuration files in whatever form or media owned or developed by or on behalf of Licensor, including during the term of this Agreement, that is furnished by Licensor or otherwise used in connection with the Products, Framework, and any enhancements, modifications, derivative works, or other alterations excluding Third Party Intellectual Property (collectively, the “Licensor Proprietary Intellectual Property”) shall be and shall remain the exclusive property of Licensor. All software, code, methodologies, processes, procedures, algorithms, and any related documentation in whatever form or media licensed or leased by Licensor from a third party that is used in connection with the Products or Framework, (“Third Party Intellectual Property”) shall be and shall remain the exclusive property of such third party licensors. Customer shall have no rights or interests in the Licensor Proprietary Intellectual Property or Third Party Intellectual Property except as otherwise expressly granted by Licensor or such third party.

1.4 Confidentiality. Licensor and Customer acknowledge that any “Confidential Information”, meaning any written, audible, visual, or oral information that is either (a) identified as confidential or proprietary, (b) is marked with a restrictive legend, or (c) which should otherwise be reasonably deemed confidential shall be held in strict confidence by the recipient in at least the same manner as the recipient protects its own confidential information unless (i) that information is or becomes publicly known, (ii) is independently developed by the recipient without violating the disclosing Party's proprietary rights as shown by the recipient's written records, (iii) is disclosed by the owner of such information to a third party free of any obligation of confidentiality, or is rightfully received by a Party free of any obligation of confidentiality or (iv) is required by law or other judicial or governmental order to be disclosed in which case the disclosing party shall be given prior written notice and an opportunity to seek a protective order against such disclosure and the recipient shall disclose only the minimum amount of information necessary as advised by recipient’s legal counsel. Without limiting the foregoing, confidential information shall specifically include (a) Customer’s trade secrets, intellectual property, including data and software, as well as computer operations and recovery procedures (b) Licensor’s trade secrets including Licensor Intellectual Property, physical security systems, access control systems, specialized equipment, pricing and use policies and those of its licensors, and (c) the terms of this Agreement. Neither Customer nor Licensor shall disclose or use any confidential information for any purpose other than for the performance of duties and obligations under this Agreement, and shall restrict disclosure to employees or agents on a “need to know” basis. Any other disclosure must be mutually agreed to in writing. In the event of a breach of the terms in this section, both Licensor and Customer have the right to seek equitable and injunctive relief without the posting of a security bond or other similar requirement. 

1.5 Restrictions on Use. Except as expressly authorized by applicable law or by Licensor in writing, Customer shall not copy, in whole or in part, the Products, Framework or any documentation of the Products or Framework, or modify, disassemble, decompress, reverse compile, reverse assemble, reverse engineer, or translate any portion of the Products or Framework.  Customer shall not rent, lease, lend, distribute, sell, assign, license, or otherwise transfer the Products or Framework, or create Derivative Works of the Product or Framework.

Customer represents and warrants that it will not, and will not allow any third party to, (i) reverse engineer or attempt to decompile any software associated with the Product or Framework; (ii) attempt to re-sell or re-distribute the Product or Framework; or (iii) allow unauthorized access to the Product or Framework; (iv) including to any affiliated companies not named herein; (v) creative derivative works based on the Product or Framework, including copy, in whole or in part, the Product, Framework, or documentation; (vi) use the Product or Framework outside of the scope described herein and (vii) remove any proprietary markings or legends on any products or intellectual property furnished in connection with the Product or Framework; or (viii) use the Product, Framework, and/or any associated software to provide or operate any application service, service bureau, marketing, training, outsourcing services, cloud services, web services, or consulting services or any other commercial services related to the software and/or otherwise use the Product, Framework, or associated software or develop similar products which may be directly or indirectly competitive with Licensor’s business.

 1.6 Derivative Works. “Derivative Works” as used herein means any software program (whether in source code or object code), and all copies thereof, developed by or on behalf of Customer based on or derived from any part of the Product or Framework, including without limitation any revision, modification, enhancement, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion, or any other form in which the Product or Software may be recast, transformed or adapted, and that, if prepared without Licensor's authorization, would constitute a patent, copyright or trade secret infringement of the Product or Software, or would otherwise constitute an unauthorized use of Licensor’s Confidential Information. In the event any such Derivative Works are created, Licensor shall own all right, title, and interest in and to such Derivative Works. If, under the operation of local law or otherwise, Customer or such third party comes to have any rights associated with such Derivative Works, Customer hereby and shall automatically assign all such rights to Licensor for no additional consideration. For avoidance of doubt, Licensor shall claim no intellectual property interest or legal interest of any kind in any code created by Customer to facilitate its authorized use of the Product or Software so long as the creation of such code does not constitute a Derivative Work or violate any other provision of this Agreement.

1.7 Third Party Use and Rights. Customer may authorize third parties to assist Customer in the management, editing, and hosting of web-based content created by use of the Product, provided that: (1) such activities are within the scope of the activities Customer is itself authorized to perform under this Agreement; (2) such third party’s acts are primarily for the direct or indirect benefit of Customer; and (3) such third parties are not charged a fee by Customer for such activities. Customer is prohibited from using the Product and/or Framework as an Application Software Provider or in any time-sharing or other commercial arrangement of any kind that makes the Product and/or Framework available to third parties primarily for the third party’s own uses. Except as expressly stated in this Agreement, no third party has any rights under this Agreement. Customer is fully liable to the extent allowed by law for any unauthorized use of the Product and/or Framework by third parties caused by any acts or omissions of Customer.

2. Term and Termination. This Agreement shall be effective on the date the Exhibit is executed by Customer and shall remain in effect for so long as there is an Exhibit in effect unless otherwise terminated in accordance with the Termination provisions below. The term of any Exhibit executed forthwith, shall commence on the date the Products begin (“Go-Live date”) and shall continue in effect perpetually unless terminated as set forth hereunder.

 2.1 Suspension of Services. If applicable, Customer agrees that Licensor may suspend use of the Product and/or Framework, or terminate this Agreement without liability if (a) Licensor reasonably believes that the Product and/or Framework are being used in violation of the Agreement, (b) Customer does not cooperate with Licensor’s reasonable investigation of any suspected violation of the Agreement, (c) if required by law, or (d) invoice payments are delinquent.  Licensor will give Customer advance notice of a suspension under this paragraph of at least twelve Business Hours unless Licensor determines in Licensor’s reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Licensor or its other customers from imminent and significant operational or security risk.

2.2 Termination. Licensor shall have the right to terminate this Agreement effective immediately upon written notice to Customer without further obligation or liability if (a) Customer fails to pay any amounts when due, and continues to be delinquent for a period of thirty (30) days after written notice by Licensor of such non-payment, (b) Customer commits a material breach of any obligation under this Agreement and such breach shall not be corrected or remedied, if capable of being cured, within thirty (30) days after written notice by Licensor, or (c) Customer becomes or is declared insolvent or bankrupt, or shall commence or have commenced against it a bankruptcy, insolvency, receivership or similar proceeding. Any use of the Product and/or Framework by Customer other than usage in accordance with the applicable Exhibit will constitute a material breach of this Agreement. Licensor’s termination of this agreement shall be without prejudice to any other remedies that Licensor may have. The Intellectual Property, Limitation of Liability, Confidentiality, and Indemnities sections shall survive any termination of this Agreement.  If Customer terminates agreement during the Term and prior to its expiration, Licensor reserves the right to invoice Customer for the remaining balance of fees due for the current Term.           

3. License Fees. Customer shall pay to Licensor the fees specified on the applicable Exhibit, and the terms for such payment shall also be specified on the Exhibit. All other fees including, but not exclusive to, any reasonable out-of-pocket expenses incurred by Licensor in connection with the Product and/or Framework, shall be due and payable thirty (30) days after receipt of an invoice unless otherwise specified. Customer shall be responsible for any applicable sales, use, excise or other taxes attributable to the services provided or the amounts charged under this Agreement and shall hold Licensor harmless from all claims and liabilities arising out of Customer’s failure to report or pay any such taxes, duties, and assessments.  In the event of any delinquency in payments, in addition to any other rights or remedies Licensor may have under the Agreement, Licensor may charge Customer interest in the amount of 1 1/2 % per month.

4. Accounting and Audit. Licensor may, for purposes of verification of Customer’s compliance with the Licensed Software Use request an accounting of such use and, on a mutually agreed schedule, conduct an audit of Customer’s use of the Product and/or Framework or request certification that the use does not exceed the Licensed Software Use.  Licensor shall provide no less than ten (10) days written notice prior to the due date for the accounting, specifying the criteria Licensor requires to be reported, and such criteria to be consistent with the Licensed Software Use.  Customer shall provide reasonable cooperation to Licensor in connection with such audit, including scheduling any on-site audit.

5. Warranty. Licensor represents and warrants that during the Term of this Agreement, the applicable Product or Framework will perform substantially in accordance with, or conform with each applicable Exhibit for a period of (90) days after the date of purchase of the Term License or Framework License. Licensor does not warrant the use of the Product or Framework will be uninterrupted or error free at all times and in all circumstances, nor that program errors will be corrected.  This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Customer’s failure to follow operating instructions, (iii) Customer’s negligence or improper use of the Product or Framework, (iv) modifications to the Product or Framework (including modifications to the original database schema) by any person or entity other than Licensor, or (v) any other act or omission of Customer’s use of the Product or Framework.  In the event of a breach of the foregoing express warranty, Customer’s sole and exclusive remedy and Licensor’s sole and exclusive obligation, is repair or replacement of the defective Product.  If such remedy fails of its essential purpose, Customer’s sole remedy and Licensor’s maximum liability shall be a refund of the amount paid to Licensor under the applicable Exhibit, depreciated on a straight-line basis over an assumed five-year life. This limited warranty is only valid if Licensor receives written notice of breach of warranty no later than thirty (30) days after the warranty period expires.

6. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PRODUCT AND/OR FRAMEWORK THAT IS PROVIDED TO CUSTOMER BY LICENSOR INCLUDING WITHOUT LIMITATION, ANY PRODUCTS FURNISHED THAT CONTAIN LICENSOR PROPRIETARY INTELLECTUAL PROPERTY OR THIRD PARTY INTELLECTUAL PROPERTY PURSUANT TO THIS AGREEMENT ARE FURNISHED BY LICENSOR ON AN “AS IS” BASIS, AND NEITHER LICENSOR, OR ITS SUPPLIERS, MAKE ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, REGARDING THE PRODUCTS TO BE PROVIDED HEREUNDER OR THAT ANY SOFTWARE OR OTHER ELECTRONIC DEVICES PROVIDED WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. LICENSOR SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO, LOSS OF OR INTERCEPTION OR MISDIRECTION OF CUSTOMER DATA, FILES, SOFTWARE, CODE, OPERATING SYSTEMS, APPLICATIONS, DATA STORAGE MEDIA, OR OTHER PROPERTY THAT OCCURS DURING CONNECTION, TRANSMISSION, USE OR RESTORATION BY CUSTOMER OR LICENSOR IN CONNNECTION WITH THE PRODUCTS.   

7. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED TWENTY FIVE PERCENT OF THE FEES PAID AND RETAINED BY LICENSOR FOR THE PRODUCTS WITH RESPECT TO WHICH THE CLAIM AROSE. Neither Customer nor LICENSOR shall be liable for, nor will the measure of damages include, any indirect, lost profits or lost revenues, incidental, special, consequential or punitive damages arising out of or relating to its performance or failure to perform under this Agreement even if such party has been advised of the possibility of such damages.

8. Indemnification. Licensor agrees to indemnify, defend and hold the Customer harmless from and against claims, demands, litigation, expenses and liabilities, and losses incurred by Customer arising from third party claim arising from copyright, trade secret, trademark, or right of publicity asserted against either party by virtue of Customer's use of the Licensor Proprietary Intellectual Property or Licensor Intellectual Property in its Products; provided, however, that (a) Licensor is given prompt notice within 14 days of any such claim, (b) Licensor has the right to control and direct the defense of such claim, and (c) Customer fully cooperates with Licensor in such defense. Licensor shall have no liability for any claim of infringement that results from or relates to (a) any modification or enhancement to the Licensor Proprietary Intellectual Property or the Product and/or Framework by Customer, (b) any failure by Customer to implement, install or use the Licensor Proprietary Intellectual Property or the Product and/or Framework as directed by Licensor, (c) the combination, operation or use of the Licensor Proprietary Intellectual Property with non-Licensor programs, data or documentation and (d) materials, items, resources, or services provided or performed by Customer (whether or not used in connection with or incorporated into the Licensor Proprietary Intellectual Property or the Product and/or Framework), (e) any content, information or data provided by Customer, end users, or third parties or (f) any failure by Customer to install patches, updates or other enhancements available to and recommended by Licensor. In the event the Licensor Proprietary Intellectual Property or the Licensor Intellectual Property in its Products are finally adjudicated to infringe any rights of a third party, Customer’s sole and exclusive remedy and Licensor’s entire liability and obligation with regards to remedy such infringement shall be, at Licensor’s sole option and expense, to (a) modify the Licensor Proprietary Intellectual Property or the Products to be non-infringing, (b) obtain for Customer a license to continue using the Licensor Proprietary Intellectual Property or the Products, or (c) terminate this Agreement and the license granted hereunder and accept return of the Licensor Proprietary Intellectual Property.

Customer agrees to indemnify, defend and hold Licensor and Licensor agents harmless from and against any and all losses arising from any claim relating to (a) the infringement by or of the Customer Intellectual property or any other resources or items provided to Licensor or Licensor agents by Customer or Customer agents, (b) any amounts, including taxes, interest and penalties which are obligations of Customer pursuant to this Agreement and Exhibit, (c) the nature and use of any products or services, materials, or data provided by Customer or Customer agents to third parties, (d) any breach or default by Customer in the performance of Customer's obligations under agreements with third parties, (e) arising out of Customer's or any end user's use of or conduct in connection with the Products; (f) any third party litigation or subpoena arising out of Customer’s products, services, or industry. Customer Intellectual Property shall mean Customer’s prior existing software, materials, information, methodologies, processes, procedures, algorithms, and any related documentation in whatever form or media owned by or on behalf of Customer or licensed or leased by Customer from a third party.

9. Relationship. Licensor represents that it is an independent contractor, and that nothing contained in this Agreement shall be construed to make either Customer or Licensor partners, joint ventures, principals, agents or employees of the other; that no authority has been granted to Licensor or its agents to act on behalf of or bind Customer nor shall Customer have the right to bind Licensor; that Licensor may provide similar Products to other customers; that any persons provided by Licensor to Customer pursuant to the performance of Products shall be employees or contractors of Licensor and under the exclusive direction of Licensor. Licensor shall have the sole right to supervise, manage, direct, procure, perform or cause to be performed, all work performed by Licensor under this Agreement.

10. Non-Solicitation. During the term of this Agreement or any Exhibit hereunder, and for a period of one (1) year thereafter, Customer agrees not to hire, solicit or accept employment of any of Licensor’s employees, independent contractors or agents with whom it has had contact as a result of this Agreement without the prior written consent of Licensor. In the event Customer hires such an employee, independent contractor or agent in contravention of this Agreement, Customer will immediately pay a fee to Licensor equal to such person’s then current annual compensation (or the amount paid to such person by Licensor during the previous twelve (12) months in the case of an independent contractor).

11. Export Controls. Neither Licensor nor Customer shall export, directly or indirectly, any information acquired under this Agreement or any product utilizing such information to any country for which the government of the United States of America or any agency thereof or any other governmental authority at the time of export requires an export license or other governmental approval without first obtaining such license or approval.

12. General Provisions.

12.1 Assignment. This Agreement shall be binding and inure to the benefit of the parties hereto. Customer may not, without the prior written consent of Licensor, assign this Agreement or any of the rights granted hereunder, in whole or in part, and may not delegate its obligations under this Agreement. Any such purported assignment or delegation in contravention of these terms shall be null and void.  No such consent shall be necessary from Licensor in the event of a merger or an acquisition of all or substantially all of Customer’s assets unless the assignment or transfer is to a competitor or an entity owned or controlled by a competitor.

12.2 Entire Agreement. This Agreement including any and all Exhibits and addenda to this Agreement represent the entire agreement between Licensor and Customer with respect to its subject matter, and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, of the parties. There are no other representations, understandings or agreements between the Licensor and Customer relative to such subject matter.  In the event Customer submits work orders, change orders, purchase orders, invoices or other similar documents for accounting or administrative purposes or otherwise, no pre-printed or similar terms and conditions contained in any such form shall be deemed to supersede any of the terms and conditions herein without express written approval by Licensor.

12.3 Waivers. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an authorized representative of each of the parties. In the event any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement shall remain in full force and effect, and the invalid provision shall remain in force as reformed by the court. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any party of any breach or covenant must be signed by the party waiving its rights, and shall not be construed to be a waiver of any succeeding breach or any other covenant.

12.4 Marketing. Customer grants Licensor the right to use Customer's name and logo for the purpose of identifying Customer as one of Licensor's customers for the duration of this Agreement, including without limitation on Licensor's web site, brochures, press releases and other marketing materials. Upon termination of this Agreement, Licensor will remove Customer's name and logo from Licensor's web site within a reasonable time thereafter, and Licensor shall not thereafter prepare any further hard copy materials bearing Customer's name and logo, although Licensor may continue to use up and distribute hard copy materials then in its possession or under its control.  Licensor shall have the right to issue a press release announcing the relationship described in this Agreement, including an executive quote within one hundred eighty (180) days following the Effective Date of the applicable Exhibit(s).  The press release shall be subject to the prior written approval of both Licensor and Customer, however if there is no written objection by Customer within ten (10) days of projected announcement – Customer’s approval shall be deemed.  Neither party will issue any further announcement, press release or any other public statement concerning this Agreement and/or relationship of the parties without the prior written approval of the other party.  Customer consents to have a Customer case study published about Customers’ experience with Licensor’s Products and Licensor as a vendor.

12.5 Force Majeure. Neither Licensor nor Customer shall be liable for any failure or delay in its performance under this Agreement including any delays, errors, failures to perform, interruptions or disruptions in the use of the Products due to causes that are beyond its reasonable control (a "Force Majeure Event"). The affected party shall notify the other party of such Force Majeure Event promptly, and both Licensor and Customer agree to work together to resolve any issues related to such an event in order to facilitate the resumption of use of the Products.

12.6 Notices. All notices, requests, consents and other communications under this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the third business day after being sent by first class mail. Customer’s address for notices shall be set out in each Exhibit. Licensor’s address for notice is 2700 S. River Road, Des Plaines, IL 60018, Attention: General Counsel.

12.7 Governing Law. This Agreement and the rights and obligations of the Parties under this Agreement shall be governed by and construed in accordance with the laws of Illinois without giving effect to the principles thereof relating to the conflicts of laws.

12.8 Limitation Period. Neither Licensor nor Customer may bring an action, regardless of form, arising out of this Agreement more than one (1) year after Licensor has provided the Product to Customer, in accordance with the terms and conditions of this agreement and its applicable Exhibits.