Master Service Agreement

Recitals

WHEREAS, Provider is in the business of providing real time information related to presentation, display and analysis and related research of products in retail settings through its proprietary technology and related services called Jicco; and

WHEREAS, Client desires to subscribe for and purchase from Provider the Services, as such term is hereinafter defined.

NOW THEREFORE, in exchange for the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, Agree As Follows:

1.1 “Answer(s)” mean an individual response that is received by the Client from asking a Question and may be comprised of multiple types of media and/or data. 

1.2 “Content” means all visual, written or audible data, information or material including, without limitation: documents, spreadsheets, text messages, images, form entries, web pages, and similar material, which are uploaded to, transferred through, publicly posted, processed or entered into the Services by the Client, Users or Provider.

1.3 “Contract Start Date” means the date stated in the Subscription Agreement.

1.4 “Interface” means the user interface of the Jicco service that is provided through a mobile application or on the Web Site.

1.5 “Initial Term” means the initial contract period during which the Client subscribes to the Services, as such will be identified on the Subscription Agreement.

1.6 “Question(s)” mean the question that will be posed by the Client or User, either by text or oral communication, through the Interface with the expectation of receiving an Answer.

1.7 “Renewal Term(s)” means successive renewal periods during which the Client subscribes to the Services.

1.8 “Services” means the at all times current version of the Interface, the web services, associated software, and other services related thereto provided to the Client by Provider in accordance with this Agreement. The Services are offered with several subscription types with the characteristics and features as described on the Web Site. In addition, the Services may include additional services and add-ons, including third party software, as agreed between the Client and Provider on a Subscription or case-by-case basis.

1.9 “Subscription” means the terms governing among other things the type of subscription, subscription term, billing frequency, the number of Users and applicable fees.

1.10 “Subscription Agreement(s)” means the initial Subscription Agreement and any subsequent Subscription Agreements evidencing among other things the type of Subscription, Subscription term, Initial Term, the number of Users, ordered Services and applicable fees. Each such Subscription Agreement shall be considered an integral part of this Agreement. In the event of conflict between the terms of a Subscription Agreement and the terms of this Agreement, the terms of a Subscription Agreement shall prevail. This Agreement is attached to the Subscription Agreement as Exhibit A.

1.11 “Trial Service(s)” means  Services which are provided free of charge or which are under development or evaluation and is marked “free”, “demo”, “trial”, “beta”, “evaluation” or any similar designation.

1.12 “User(s)” means all individuals who are authorized to use the Services.

1.13 “Web Site” means Provider’s web site at www.gojicco.com.

2.1 Provider reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions of the Services, at any time without prior notice.

2.2 Provider shall, in its sole discretion, adopt reasonable measures in order to ensure that Client and Users are able to ask Questions over the internet twenty-four (24) hours a day, seven (7) days a week, except for: (i) any occurrence of planned downtime, advance notice of which shall be provided to Client, and (ii) any unavailability of the Services that is caused by circumstances beyond Provider’s control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, internet service provider failure or delay or a denial of service attack. Provider shall be entitled to take measures that affect the aforementioned accessibility where Provider deems such to be necessary for technical, maintenance, operational, or security reasons.

4.1 By signing a Subscription Agreement or executing this Agreement, either via online consent during registration or offline via signature, the signatory on behalf of the Client who has executed this Agreement hereby confirms that they are authorized to bind the Client through such execution.

4.2 Client may not access the Services if Client is a direct competitor to Provider, except with Provider’s prior written consent. In addition, Client may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

4.3 Client shall be responsible for the activities conducted by the Client and the Users and shall use the Services in compliance with local, state, federal and international rules, regulations and laws that are issued in conjunction therewith.

4.4 Client shall be responsible for monitoring Content that was provided by Client and shall be liable to Provider for ensuring that Content transferred to or handled within the Services that is provided by the Client and/or Users does not infringe any third party rights nor does it in any other manner violate applicable laws, rules or regulations, and that the Client and Users possess such necessary licenses from third parties as may be required in order to process the Client and User provided Content and use the Services.

4.5 Client acknowledges that it is not permitted to use the Services in order to gain information in violation of applicable local, state, federal or international rules, regulations or laws. 

4.6 Client agrees not to use the Services in any manner which may result in the infringement of a third party’s copyright, or which constitutes a dissemination of business secret, or may incite a third party to commit or participate in a crime, or may be understood as constituting a threat, or to use the Services in any other manner incompatible with the purpose intended.

4.7 The Client is responsible for managing the Users right to use the Services.

4.8 Client shall remain liable for the Users’ use of the Services under this Agreement and ensure that Users perform their obligations in accordance with the terms and conditions of this Agreement and any applicable Subscription Agreements. To the extent the Client is unable to perform an obligation on behalf of a User or is unable to cause the User to perform the same, the Client shall indemnify Provider for any loss incurred due to such failure by Client. 

4.9 Client shall defend and indemnify Provider for any claim, suit or proceeding brought against Provider by Users and/or third parties arising out of or connected to Content provided by Users or Client within the Services or for which the User or Client is otherwise responsible, unless Provider is liable for such claim in accordance with the provisions of Section 11 hereof.

4.10 Client is obligated to notify Provider regarding any suspected breach of any provision contained in this Section 4.

5.1 Client shall pay all fees specified in any applicable Subscription Agreement per the terms and payment methods specified within such Subscription Agreement. 

5.2 All Services provided by Provider shall be paid by Client according the terms set forth in applicable Subscription Agreements. The Client may upgrade a Subscription at any time with additional permitted Users, additional storage, or additional services as may be provided. Any added Users, storage, or services shall be coterminous with pre-existing Subscriptions and Services.

5.3 Provider may terminate a Subscription, destroy Content provided by the Client and User and immediately terminate this Agreement in the event of overdue payments in excess of fourteen (14) days.

5.4 In the event of early termination by the Client of a Subscription, the Services or the Agreement, the Client shall not be entitled to a refund of any prepaid fees.

6.1 Provider shall hold title to any and all intellectual property rights and technical solutions to the Services and Interface. Such intellectual property rights and technical solutions may only be used by the Client in the manner stated in this Agreement. Under no circumstances shall the Client, a User or a third party acquire any intellectual property rights to the Services, to the software or technical solutions used in the Services or to any trade mark, service mark or any other mark belonging to or used by Provider. 

6.2 All Questions uploaded to, transferred through, processed or entered into the Interface by the Client and/or Users shall remain the sole property of the Client or its respective legal owner. Provider shall have no liability for any such Content. Any Answers generated from a Question entered on the Interface shall be the sole property of the Provider, to be available for use by Client during active licensing period(s).

6.3 Client may use the Services only in accordance with this Agreement. Client may not reverse engineer, decompile, disassemble, or work around any technical limitations of the Services, except to the extent permitted by applicable law. Client may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters Client’s use of the Services. Client may not rent, lease, lend, resell, transfer, or host the Services, or any portion thereof, to or for third parties except as expressly permitted in this Agreement or the Subscription Agreement.

8.1 Provider will not disclose, publish, sell or otherwise provide personal information of any Client or User to any third party. Unless otherwise stated in this Agreement, any personal information of a Client or User obtained by Provider shall be used solely for the purpose of providing the Services to Client.

8.2 In order for the Client to be able to use the Services, the Client must provide certain data to Provider regarding the Client’s representatives and Users, including but not limited to the full name, e-mail address and contact details of the User and type of organization of the Client. Following receipt of such data, Provider will process the same in order to enable Provider to administer and otherwise perform its obligations within the scope of the Services and to ensure that unauthorized persons do not gain access to the Services.

8.3 In order for the Client to be able to use the Services, the Client must also allow Provider to store and retrieve session information on the Client’s and Users’ end terminal equipment, through the use of “cookies”. The purpose of such storage and retrieval of information is to enable the necessary login/logout procedures used in the Services and to ensure that unauthorized persons do not gain access to the Services.

8.4 Provider shall adopt adequate technical systems and operational procedures to protect the privacy of the Client and the Users. Provider’s information gathering and dissemination practices are set forth in the Privacy Statement applicable from time to time, which is available on the Web Site.

8.5 Provider shall provide information to Client relating to the amount of use of the Services that are performed by individual Users use of the Services.

8.6 Client agrees that Provider may disclose the fact that the Client is a paying client of Provider. In relation thereto, Client agrees that Provider may use the Client’s name and logo to identify Client as a client of Provider on the Web Site, and as part of a general list of Provider’s clients for use and reference in Provider’s promotional and marketing literature.

8.7 Provider shall be entitled to review Content which is publicly posted through the Services’ web publication features. Provider also reserves the right to analyze usage patterns in an aggregated form.

10.1 Provider warrants to the Client that the Services will be performed and provided substantially and materially in accordance with the terms and conditions of this Agreement and any applicable Subscription Agreements, under normal use and circumstances, and for the purpose intended. This warranty does not apply to Trial Services.

10.2 Except for the express warranties set forth above, Provider expressly disclaims all other warranties with respect to the Services, whether express or implied, including without limitation, fitness for a particular purpose, accuracy or reliability of results from use of the Services, that the Services will meet specific requirements, that the Services will be uninterrupted, completely secure, free of software errors, or that defects and deficiencies in the Services will be corrected.

11.1 Subject to the limitations set forth in this Agreement, each party shall only be liable for actual damages that are proven by the aggrieved party.

11.2 In the event of a major defect that is the fault of Provider and which seriously impedes the Client’s use of the Services, Provider agrees to act to rectify such defect without unreasonable delay. In the absence of intentional action or gross negligence by Provider, Provider assumes no responsibility for defects or deficiencies in the Services. Client shall inform Provider that an error has occurred in accordance with the instructions announced by Provider and within a reasonable time of the discovery of said defect.

11.3 Client shall not be entitled to a reduction in payment, or to damages or other remedies upon the occurrence of operational disruption or error that impedes the provision of the Services so long as said operational disruption is not due to negligence by Provider.

11.4 In no event shall the aggregate liability of each party, together with all of its affiliates and related parties, arising out of or related to this Agreement or an applicable Subscription Agreement exceed the total amount paid by Client for the Services within the twelve (12) months preceding the first incident out of which said liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit Client’s or Client’s affiliates’ payment obligations pursuant to Section 5 hereof.

11.5 Under no circumstances shall a party be liable for indirect, special, incidental, consequential, cover, punitive, or exemplary damages, or damages for lost profits, revenues, goodwill, business interruption, or loss of business information, whether such action is in contract or in tort and regardless of the theory of liability, even if the party knew said damages were possible or reasonably foreseeable or if such party’s remedy otherwise fails of its essential purpose.

14.1 This Agreement shall become effective as of the execution of this Agreement or acceptance by the Client of these terms and conditions in a Subscription Agreement.

14.2 The Initial Term shall be equivalent to the length of subscription selected by the Client in a Subscription Agreement.

14.3 This Agreement can be terminated by either party subject to written or online notice of termination as stated below or in the Subscription Agreement, effective only at the end of the then current contract  term and provided that all accrued and/or prepaid fees are paid in full. Such notice of termination must be given by the Client at least one (1) day prior to the next contract term.

14.4 Upon termination of a Subscription or this Agreement, Provider shall not be responsible for the Content generated by the Users or Client within the scope of the Subscription in question or the Services. Accordingly, it is the sole obligation of the Client to ensure that it possesses the necessary back-up copies and other information relating to the Content that it desires to retain when the Subscription or this Agreement is terminated.

14.5 Provider shall be entitled to delete and destroy any and all Content generated by the Client thirty (30) calendar days following the termination of this Agreement or a Subscription.

14.6 Sections 11 and 13 shall survive any termination of this Agreement.

15.1 Provider shall be entitled to disable the Client’s or a User’s access to a project or to the Services or to  terminate the Agreement at any time in writing and without penalty in the event that: (a) the Client or a User uses the Services in a manner that entails the perpetration of a crime; (b) the Client or a User uses the Services in a manner that causes loss or the risk of loss for Provider or any third party; (c) the Client or a User  uses the Services in a manner that violates Provider’s security or administrative regulations; (d) it may be reasonably assumed that continued dissemination of Content violates governing law; (e) notwithstanding reminders, the Client fails to pay the fees provided for in this Agreement and the Subscription Agreement to Provider; (f) the Client or a User uses the Services in a manner whereby the Client utilizes resources or seeks unauthorized access to Provider’s systems which are not intended for the Client or (g) the Client otherwise fails to comply with the Agreement  and such breach of contract is material.

15.2 The Client shall be entitled to terminate the Agreement at any time and without penalty in writing where: (a) operational disruptions or data traffic errors occur to such an extent that the Client does not have access to the Services during a period in excess of one (1) month or (b) Provider is in material breach of its obligations under the Agreement and fails to effect rectification within fourteen (14) days of a demand therefore.

16. ASSIGNMENT. Provider shall be entitled to assign its rights and obligations under this Agreement and/or any applicable Subscription Agreement, in whole or in part, to a subsidiary or other related party of Provider or to a purchaser of all or substantially all of its stock or assets without the Client’s prior consent. Client shall not be entitled to assign its rights or obligations under this Agreement or any applicable Subscription Agreement without Provider’s prior written consent.

17. MODIFICATION; WAIVER. No provision contained herein may be modified, amended or waived except by written agreement or consent signed by the party to be bound thereby. No waiver of a breach or violation of any provision of this Agreement shall operate or be construed as a waiver of any subsequent breach or limit or restrict any right or remedy otherwise available. Any waiver must be in writing.

18. COUNTERPARTS. This Agreement and any Subscription Agreement may be executed via facsimile or electronically (specifically including portable device format (.pdf), DocuSign, HelloSign or other electronic signature program, transmission or method), through the use of separate signature pages or in any number of counterparts, and each such counterpart shall, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart.

19. ARBITRATION. Any dispute or controversy arising out of or relating to this Agreement or any document or instrument delivered in connection herewith shall be settled by arbitration to be held in Fayetteville, Arkansas, in accordance with the rules then in effect of the American Arbitration Association or its successor. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction, and the parties irrevocably consent to the jurisdiction of the state courts of Arkansas for this purpose. The losing party in such arbitration shall pay all the costs and expenses of such arbitration and all the reasonable attorneys’ fees and expenses of the other party thereto.

20. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Client hereby irrevocably (i) consents to the jurisdiction of the courts of the State of Arkansas and of any federal court located in Arkansas and to venue in any Washington County court and any federal court located in the Western District of Arkansas in connection with any action or proceeding arising out of or relating to this Agreement or any other document or instrument delivered in connection herewith, and agrees that any such action or proceeding may be litigated in such courts and (ii) consents and agrees that service of legal process in any such action or proceeding may be made in any manner permitted by the rules of practice and procedure applicable to such courts. Client hereby accepts such jurisdiction and venue and waives any defense of forum non-conveniens. Nothing contained herein shall limit the right of any party to remove any action commenced in state court to the federal court in accordance with applicable law and applicable court rules of practice and procedure.

21. JOINT PREPARATION. This Agreement shall be deemed to have been prepared jointly by the parties hereto, and any uncertainty or ambiguity existing herein shall not be interpreted against any party by reason of its drafting of this Agreement, but shall be interpreted according to the application of the general rules of interpretation for arm’s length agreements.

22. GOVERNING LAW. This Agreement shall be subject to and governed by the laws of the State of Arkansas.