4. GENERAL PROVISIONS 4.1 Term. This Master Services Agreement starts on the Effective Date and shall remain in effect through the completion of the final Service Term of any services ordered. 4.2 Service Term: Perpetual. The term of the Services set forth in Exhibit D shall continue indefinitely until either party provides ninety (90) days written notice of intent to terminate after a minimum of twelve (12) paid months for all Services relating to all Stores set forth in Exhibit D have been completed. Retail Solutions reserves the right to increase the fees for the Services from the previous year by not more than five percent (5%) subsequent to 12 months or more of service. 4.3 Intellectual Property. Retail Solutions shall retain ownership of all patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights associated with the Services. 4.4 Limitation of Liability. Except with respect to fees due under Section 3, each party’s liability for direct damages to the other party, from any cause, shall not in the aggregate exceed the annual amounts paid or payable to Retail Solutions under this Agreement during the prior twelve (12) months of this Agreement leading up to the event causing such liability. Under no circumstances shall Retail Solutions or Customer be liable to the other party for any indirect, incidental, consequential, special, exemplary, or punitive damages, or for any lost profits, lost revenue, loss of use of data, or lost business opportunity, no matter how arising. 4.5 Dispute Resolution. This Agreement shall be governed in all respects by the laws of the State of California without regard to conflicts of laws principles that could result in the application of the laws of a different jurisdiction. Both parties agree to resolve any disputes through binding arbitration in Santa Clara County, CA. 4.6 Marketing Support. Customer will allow Retail Solutions to use the Customer company logo on the Retail Solutions website and Retail Solutions sales collateral in a similar size and format as Retail Solutions’ other customers. Upon written approval, Customer will also agree to a Press Release, Case Study, and presentation support at conferences and other marketing support. 4.7 Indemnification. Retail Solutions will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Services infringe any third party copyright, trademark, patent or trade secret, and Retail Solutions will pay those costs and damages finally awarded against Customer in any such third party action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying Retail Solutions promptly in writing of such action, Customer giving Retail Solutions sole control of the defense thereof and any related settlement negotiations, and Customer cooperating and, at Retail Solutions’ reasonable request and expense, assisting in such defense. If the Services become, or in Retail Solutions’ opinion is likely to become, the subject of an infringement claim, Retail Solutions may, at its option and expense, either (a) procure for Customer the right to continue exercising the its rights under this Agreement, (b) replace or modify the Services so that they are no longer infringing, or (c) refund to Customer any advance payments made by Customer to Retail Solutions for Services which have not yet been provided, and terminate this Agreement by written notice to Customer. Notwithstanding the foregoing, Retail Solutions will have no obligation under this Section or otherwise with respect to any infringement claim based upon (i) any unauthorized use, reproduction, or distribution of the Services by Customer, (ii) any use of the Services in combination with other products, equipment, software, or data not supplied by Retail Solutions, or (iii) any modification of the Services by any person other than Retail Solutions. This Section states Retail Solutions’ entire liability and Customer’s sole and exclusive remedy for infringement claims and actions. 4.8 Warranty. Retail Solutions warrants to Customer that the Services will operate substantially in accordance with the user documentation during the term of this Agreement. Provided that Customer notifies Retail Solutions in writing of any breach of the foregoing warranty during the term hereof, Retail Solutions shall, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to modify the non-conforming Services to achieve in all material respects the functionality described in the documentation. RETAIL SOLUTIONS DOES NOT WARRANT THAT THE SERVICES WILL FUNCTION UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 4.9 Insurance. Throughout the term and the applicable statute of limitations, Retail Solutions shall maintain, at its sole cost and expense, the following types of insurance: • Worker's Compensation. Statutory limits as required by the state(s) in which Services will be performed. • Employer's Liability coverage with limits of at least one million dollars ($1,000,000) each occurrence ($2 million aggregate). • Commercial General Liability (“CGL”) coverage on an occurrence basis (not claims made), with limits at least one million dollars ($1,000,000) per occurrence ($2 Million Aggregate) for bodily injury and property damage, including coverage for liability arising from (i) premises; (ii) operations; (iii) broad form property damage; (iv) personal injury; (v) independent contractor's liability; (vi) contractual liability covering this Agreement as an "insured contract;" and (vii) work performed by Retail Solutions for others. • Business Auto Liability coverage on an occurrence basis, with limits of at least one million dollars ($1,000,000) per occurrence for bodily injury and property damage, including coverage for all owned, non-owned, leased, hired and borrowed vehicles used in connection with the work under this Agreement. • Excess Liability coverage with respect to the Employers Liability, CGL and Business Automobile Liability policies described above, in an umbrella form and on an occurrence basis with limits of at least ten million dollars ($10,000,000) per occurrence. • Professional Liability & Cyber Liability coverage with limits of at least five million dollars ($5,000,000) per occurrence is providing coverage for claims arising out of the performance of Retail Solutions and its subcontractors in providing or failing to provide the Services, including, but not limited to, coverage for errors and omissions caused by Retail Solutions or its subcontractor’s negligence in the performance of the Services. • The stipulated limits of coverage above shall not be construed as a limitation of any potential liability to either party. 4.10 Notice. Any notice must be delivered to the party at the address listed above, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service. Notice will be effective upon receipt or three days after being deposited in the mail or with the courier or express mail service as required above, whichever occurs first. Either party may change its address by giving notice of the new address to the other party. Any notice to Retail Solutions shall be sent to: Retail Solutions Inc. to the attention of Contracts. Address: 100 Century Center Court, Suite 800, San Jose, CA 95112. 4.11 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, virus attacks, denial of service attacks, or other similar causes) the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party (a) provides the other Party with prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event. If Retail Solutions is prevented from performing its obligations for a period of 45 days or more, Customer may terminate this Agreement or any Order upon written notice to Retail Solutions and receive a pro-rated refund of the SaaS Services fees paid to Retail Solutions for the corresponding remaining portion of the SaaS Services term. 4.12 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Services Engagements) without the consent of the other party, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. 4.13 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Either party’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. No modification or amendment of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification or amendment is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in any purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void. In the event Customer does not use or require purchase orders, Customer must complete and sign a “No PO Letter” on Customer letterhead at the time this Agreement is executed. The “No PO Letter” is attached hereto as Exhibit E. 4.14 Confidential Information. a. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances, which is exchanged between the parties. b. Each Party may be given access to Confidential Information of the other. The Parties each agree to maintain in confidence the Confidential Information of the other with the same standard of care which the receiving party uses to safeguard its own Confidential Information, but in no event less than reasonable care, if the Confidential Information is furnished on a confidential basis and is marked or identified or reasonably understood to be confidential when first disclosed. The obligations herein will not apply to any Confidential Information which (i) is or becomes available to the public other than by breach of this Agreement by the receiving party, (ii) is rightfully received by the receiving party from a third party without confidentiality limitations, (iii) is independently developed by the receiving party without use of any Confidential Information of the other, or (iv) is known to the receiving party without any restriction as to use or disclosure prior to first receipt of same from the disclosing party. c. In the event that either party or its directors, officers, employees, consultants or agents are requested or required by legal process to disclose any of the Confidential Information, the party shall give prompt notice so that the other party may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, the party shall disclose only that portion of the Confidential Information, which its counsel advises that it is legally required to disclose.