ZIPPIN TERMS AND CONDITIONS These Terms and Conditions, together with the order form(s) subject to these Terms and Conditions (each, an “Order Form”), constitute the “Agreement” between Vcognition Technologies, Inc., dba Zippin (“Zippin”) and the customer identified in the Order Form(s) (“Customer”). DEFINITIONS. “Agreement” means, collectively, these Zippin Terms and Conditions and each Order Form to which they apply. “Customer Data” means all data, audio, video, and images submitted or uploaded by Customer or collected by the Equipment and Processed or stored by the Software or Services. “Data Security Breach” means a breach of Zippin’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data. “Deliverables” means the deliverables specified in the applicable Order Form as the desired result of the Professional Services. “Documentation” means all technical manuals and end user documentation made generally available by Zippin to Customers of the Services and the Software, as may be updated from time to time by Zippin. “Equipment” means the computer hardware, video hardware, access control hardware and other tangible items through which the Services and Software are used to conduct in-person retail transactions at a Location. Equipment may be provided by Zippin as specified in the applicable Order Form (“Zippin-Provided Equipment”) or by Customer (“Customer-Provided Equipment”). “Equipment Fees” means the purchase and delivery fees due for Customer’s purchase of Zippin-Provided Equipment and the associated license fees due for Customer’s use of any included Pre-Installed Code (other than any Software pre-installed into Zippin-Provided Equipment, which is subject to separate License Fees), as specified in the applicable Order Form. “Fees” means, collectively, Equipment Fees, License Fees and Professional Services Fees. “Intellectual Property Rights” means all proprietary rights, including all patents, trademarks, copyrights, know-how, trade secrets, mask works, including all applications and registrations thereto, and any other similar protected rights in any country. “License Fees” means the license fees due for Customer’s use of the Zippin Products during the applicable Subscription Term, as specified in the applicable Order Form. “Location” means a unique physical location at which Customer is authorized to use the Zippin Products to conduct in-person retail transactions at such location. “Order Form” means a transactional document and/or statement of work executed by Zippin and Customer subject to these Terms and Conditions which specifies the Services, Software and Zippin-Provided Equipment ordered by Customer, the licensed Location(s), the Professional Services and resulting Deliverables, the applicable fees and charges, the applicable Subscription Term and any additional mutually-agreed terms and conditions. “Pre-Installed Code” means the third party computer programs incorporated, embedded or pre-installed into Zippin-Provided Equipment. If any Software is pre-installed into Zippin-Provided Equipment, such Software is not “Pre-Installed Code” and the terms and conditions of this Agreement which specifically apply to Pre-Installed Code will not apply to such Software. “Process” or “Processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. “Professional Services” means the professional services to be performed by Zippin, as specified in the applicable Order Form. “Professional Services Fees” means the fees due for Zippin’s performance of the Professional Services, as specified in the applicable Order Form. “Services” means Zippin’s hosted retailing services specified in the Order Form, including the hosted user interface for such services, as specified in the applicable Order Form. “Software” means the object code version of Zippin’s retailing software which is installed on Equipment at the Location(s), as specified in the applicable Order Form. For clarity, Software does not include the Zippin mobile application which is subject to a separate end user license agreement. “Subscription Term” means the period of time for which Customer’s use of the Zippin Products is licensed, as specified in the applicable Order Form. Unless otherwise set forth in an Order Form, the Subscription Term specified in each Order Form shall begin on the “Start Date” specified in the applicable Order Form, will continue, unless terminated in accordance with this Agreement, for an initial term of one (1) year (the “Initial Subscription Term”) and will automatically renew for subsequent one (1) year terms (each a “Renewal Subscription Term”) unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. The Initial Subscription Term and any Renewal Subscription Terms are together referred to herein as the “Subscription Term”. “Technical Support” means technical support and maintenance services made generally available by Zippin to Customers of the Services and the Software, as may be updated from time to time by Zippin. “Zippin Products” means, collectively, the Deliverables, Documentation, Services and Software. LICENSE AND USE RIGHTS. Subject to the terms and conditions of this Agreement, Zippin grants to Customer a limited, revocable, non-exclusive, worldwide, non-sublicensable, non-transferable (except in connection with a permitted assignment of this Agreement), non-assignable (except in connection with a permitted assignment of this Agreement) and royalty-free right and license to: access and use the Services during the applicable Subscription Term solely to conduct in-person retail transactions at the licensed Location(s), subject to any maximum usage metrics or limitation(s) specified in the applicable Order Form: install and use the Software on Equipment during the applicable Subscription Term solely to conduct in-person retail transactions at the licensed Location(s), subject to any maximum usage metrics or limitation(s) specified in the applicable Order Form. Zippin will deliver the Software to Customer electronically or on tangible media. The Software will be deemed to be accepted upon delivery. The Software may include individual open source software components, each of which has its own copyright and its own applicable license terms, but will not be subject to license terms which mandate re-licensing of other software with which the Software is installed (so-called “copyleft” licenses). Zippin will provide copies of such license terms upon request; use, and to make reasonable numbers of copies of, the Documentation during the applicable Subscription Term solely in connection with Customer’s permitted use of the Services and Software; upon payment in full of all of Zippin’s invoices for the Professional Services, use the Deliverables during the applicable Subscription Term solely in connection with Customer’s permitted use of the Services and Software; and use the Pre-Installed Code solely on its associated Equipment in connection with Customer’s licensed use of the Zippin Products, subject to any additional license terms imposed by the licensor(s) and/or manufacturer(s) of the Pre-Installed Code (collectively, “OEM License Terms”). Zippin will provide copies of the OEM License Terms upon request. RESTRICTIONS. Except as expressly permitted by this Agreement (or the applicable OEM License Terms with respect to Pre-Installed Code), Customer will not: (i) reverse engineer, decompile, disassemble, modify or create derivative works of all or any portion of the Zippin Products, Deliverables or Pre-Installed Code; (ii) sublicense, rent, lease, loan, timeshare, sell, distribute, disclose, publish, assign or transfer any rights, grant a security interest in, or transfer possession of all or any portion of the Zippin Products, Deliverables or Pre-Installed Code to any third party, except to transfer the Pre-Installed Code solely in connection with a sale of its associated Equipment; (iii) incorporate all or any portion of the Zippin Products, Deliverables or Pre-Installed Code into any product or technology sold, licensed or provided by Customer to its customers or any third parties; (iv) host all or any portion of the Zippin Products, Deliverables or Pre-Installed Code for third party use or otherwise make all or any portion of the functionality of the Zippin Products, Deliverables or Pre-Installed Code available to third parties as an application service provider or service bureau; (v) circumvent Zippin’s license control measures; (vi) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Zippin Products, Deliverables or Pre-Installed Code; (vii) disclose the results of any benchmark test of the Services or Software or the Pre-Installed Code to any third party, unless authorized to do so by Zippin in writing; (viii) remove or modify any copyright or other proprietary notices contained in the Zippin Products, Deliverables or Pre-Installed Code; or (ix) allow any third party under Customer’s direction or control to do any of the foregoing. Zippin reserves all rights to the Zippin Products and Deliverables that are not expressly granted in this Agreement. Zippin and the licensor(s) and/or manufacturer(s) of the Pre-Installed Code reserve all rights to the Pre-Installed Code that are not expressly granted in this Agreement. Nothing in this Agreement will be construed as granting Customer any property rights in or to the Zippin Products, Deliverables or Pre-Installed Code, or in or to any invention or any patent, copyright, trademark or other Intellectual Property Right that has been issued, or that may issue, based on the Zippin Products, Deliverables or Pre-Installed Code. The Zippin Products, Deliverables and Pre-Installed Code are licensed hereby, not sold. TECHNICAL SUPPORT. Zippin will provide Customer with Technical Support as described in the Service Level Agreement attached hereto as Exhibit A. AVAILABILITY. Zippin will make the Services available as described in the Service Level Agreement attached hereto as Exhibit A. PROFESSIONAL SERVICES. Zippin will perform the Professional Services specified in the applicable Order Form. Zippin will perform the Professional Services in a competent and professional manner. Customer will provide all assistance and cooperation to Zippin reasonably necessary to permit Zippin to perform the Professional Services, including assigning a project manager to (i) assist and coordinate with Zippin in connection with its performance of the Professional Services, (ii) serve as a principal point of contact with Zippin and (iii) perform the review, analysis and acceptance of any Deliverables specified in the applicable Order Form. Customer acknowledges that failure to provide such assistance and cooperation may impair Zippin’s ability to provide the Professional Services and may result in additional charges being invoiced to Customer as a result of additional time or expenses incurred by Zippin as a result. Unless set forth to the contrary in the applicable Order Form, Customer will be responsible for making, at Customer’s sole expense, any changes or additions to Customer’s hardware and software systems that may be required to support Zippin’s performance of the Professional Services or the installation, implementation and/or use of the Deliverables. The Professional Services will be performed for the project fee or at the hourly rate specified in the applicable Order Form, plus reimbursement of Zippin’s reasonable out-of-pocket expenses incurred in the performance of the Professional Services; provided that all such expenses must be approved in advance by Customer and be substantiated by appropriate written receipts. Zippin’s invoices for the Professional Services will be paid by Customer within thirty (30) days of receipt of the invoice. EQUIPMENT. Unless the applicable Order Form specifies otherwise, Zippin-Provided Equipment will be shipped FOB destination and charges for delivery (including packing and crating) will be included in the applicable Equipment Fees. Zippin will promptly notify Customer in writing of any expected delay in delivery. Upon delivery of the Zippin-Provided Equipment, Customer will have five (5) business days to inspect the Zippin-Provided Equipment (the “Inspection Period”). Customer may reject any Zippin-Provided Equipment that is inoperable, damaged or defective by providing a notice of rejection to Zippin prior to the end of the Inspection Period. Any Zippin-Provided Equipment which is not timely rejected by Customer in accordance with this Section will be deemed accepted. At Customer’s election, and at Zippin’s risk and expense, rejected Zippin-Provided Equipment will be returned to Zippin for repair or replacement. If Zippin is unable to repair or replace such Equipment, Zippin will so notify Customer and, within thirty (30) days thereafter, issue Customer a refund of the Equipment Fees paid for such Equipment. Title to the Zippin-Provided Equipment will pass to Customer upon its acceptance. Zippin warrants that clear and marketable title to accepted Zippin-Provided Equipment will be conveyed to Customer, free from any liens, encumbrances or other defects in title. If any Zippin-Provided Equipment is covered, in whole or in part, by a third party manufacturer’s warranty, Zippin will: (i) provide Customer with a copy of each such warranty and (ii) if such warranty does not, by its terms, pass through to the end user of the Zippin-Provided Equipment, then, to the extent permitted by the manufacturer, Zippin will assign to Customer the end user warranties provided by such manufacturer. Customer is responsible for ensuring that all Customer-Provided Equipment used in connection with the Zippin Products meet Zippin’s minimum technical standards for such use. Notwithstanding anything in this Agreement to the contrary, Zippin makes no representations or warranties regarding: (i) any Customer-Provided Equipment or (ii) Customer’s or any third party’s installation or maintenance of any Zippin-Provided Equipment. FEEDBACK. Customer may, but is not obligated to, provide to Zippin suggestions, comments and feedback regarding the Zippin Products and the Zippin-Provided Equipment (collectively, “Customer Feedback”). Zippin may, but is not obligated to, use and include any Customer Feedback that Customer voluntarily provides to improve the Zippin Products, the Zippin-Provided Equipment or other related Zippin technologies. Accordingly, if Customer provides Customer Feedback, Customer grants Zippin a perpetual, irrevocable, worldwide, royalty-free, fully paid-up license grant to freely use, have used, sell, modify, reproduce, transmit, license, sublicense (through multiple tiers of sublicensees), distribute (through multiple tiers of distributors), and otherwise commercialize the Customer Feedback in the Zippin Products, the Zippin-Provided Equipment or other related technologies. CONFIDENTIALITY. For the purposes of this Agreement, “Confidential Information” means information not generally known to the public, whether of a technical, business or other nature that relates to this Agreement, or that is disclosed during the term of this Agreement, and that is designated as “confidential” or “proprietary” or other words of similar meaning. Confidential Information may be disclosed in written or other tangible form (including information in computer software or held in electronic storage media) or by oral, visual or other means. Confidential Information will not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession. Confidential Information may include a third party’s confidential information. Zippin’s Confidential Information shall include, without limitation, the Zippin Products and price lists. Each party agrees not to use any Confidential Information of the other party for any purpose except to perform its obligations or exercise its rights under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party's employees, except to those employees or consultants of the receiving party with a need to know. Each party agrees that it will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party will take at least those measures that it takes to protect its own most highly confidential information and will ensure that its employees and independent contractors who have access to Confidential Information of another party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof. Each receiving party will reproduce the disclosing party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. If a receiving party is requested by any court, tribunal or governmental entity, or otherwise required by law to disclose any Confidential Information, it will, to the extent permitted by law prior to any such disclosure, notify the disclosing party and provide an opportunity to permit the disclosing party to seek a protective order or take other appropriate action. The receiving party will reasonably cooperate in the disclosing party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. FEES, PAYMENT AND TAXES. Unless the applicable Order Form specifies otherwise: (i) the License Fees for the Initial Subscription Term specified in an Order Form are due and will be paid to Zippin by Customer upon the “Start Date” specified in the Order Form and (ii) the license fees due for each Renewal Subscription Term under an Order Form will be invoiced to Customer by Zippin no later than thirty (30) days prior to the commencement of such Renewal Subscription Term and will be due and will be paid to Zippin by Customer no later than the commencement of such Renewal Subscription Term. The Professional Services Fees for the Professional Services specified in an Order Form are due and will be paid according to the invoicing and payment schedule specified in the Order Form. Unless the applicable Order Form specifies otherwise, the Equipment Fees specified in an Order Form are due and will be paid to Zippin by Customer upon the “Start Date” specified in the Order Form. In addition to any other remedies available to Zippin, Customer will pay a late fee of one percent (1%) per month (or the maximum amount permitted by applicable law, whichever is less) for any late payments hereunder. Customer is solely responsible for any and all taxes, levies, charges and fees incurred or that may be payable to any taxing authority in connection with the transactions hereunder, other than any income tax incurred by Zippin. Unless the applicable Order Form specifies otherwise, all Fees are net of any applicable taxes. TERM AND TERMINATION. Unless terminated earlier as provided below, this Agreement will commence on the “Effective Date” specified in the letter agreement to which these Terms and Conditions constitute Exhibit B, and will remain in full force and effect until terminated as set forth below. This Agreement may be terminated by either party at any time upon written notice to the other party in any of the following circumstances: (i) for the material breach of the other party, which material breach has remained uncured for a period of thirty (30) days from the date of written notice of such breach, (ii) for the other party’s breach of its confidentiality obligations hereunder, (iii) an adjudication of bankruptcy of any party under any bankruptcy or insolvency law, (iv) the appointment of a receiver for business or property of the other party or the making of any general assignment for the benefit of its creditors or (v) at any time that no active Order Form is in effect. Notwithstanding Section 10.2(i), this Agreement may be terminated by Zippin at any time upon written notice to Customer if Customer breaches a material obligation under Section 3 of this Agreement. Upon the expiration or termination of this Agreement: The Services, the Professional Services (if being performed at the time of such expiration or termination), all licenses to Customer hereunder and all Order Forms will terminate; Customer will uninstall and destroy all instances of the Deliverables, Documentation, Software and Pre-Installed Code in its possession or otherwise under its control; and The receiving party of any Confidential Information will promptly (a) return to the disclosing party all Confidential Information belonging to the disclosing party and certify to the disclosing party in writing such return, or (b) destroy all documents and other tangible materials representing the disclosing party’s Confidential Information and certify to the disclosing party in writing such destruction; except one copy of such material may be retained by the receiving Party in the office of its legal counsel and/or in a secure location to preserve a record of the same so long as such retention maintains the standards of confidentiality set forth under the terms of this Agreement for the duration of such retention. Sections 9, 10.4.2 and 10.4.3 will survive any termination or expiration of this Agreement for as long as either party has any pending rights, duties or obligations thereunder. Sections 3, 7.7, 8, 9, 11.5 and 13-17, inclusive, will survive any termination or expiration of this Agreement. DATA SECURITY. All Customer Data is, shall be, and shall remain the property of Customer and shall be deemed Customer Confidential Information. Without Customer’s written approval, Customer Data shall not be (i) sold, assigned, leased, or otherwise provided to third parties by Zippin or (ii) commercially exploited by or on behalf of Zippin. Zippin shall Process Customer Data only at the locations and/or geographies set forth in this Agreement or Order Form, and shall not change the location and/or geographies without Customer’s express prior written consent or court order or decree. Zippin shall be responsible for the security of Customer Data as processed by the Software and stored on its data storage provider, currently Google Cloud Platform or Microsoft Azure, solely in connection with Customer’s proper and authorized use of the Services in accordance with the terms of this Agreement and as set forth respectively in the Google Cloud Platform Customer Responsibiliy Matrix at https://cloud.google.com/files/PCI_DSS_Shared_Responsibility_GCP_v32.pdf and the Microsoft Shared Responsibility Model at https://gallery.technet.microsoft.com/Shared-Responsibilities-81d0ff91. Zippin shall maintain and update at least annually a Data Security Breach incident response plan that complies in all respects with applicable law(s) and industry-standard practices for companies that Process the types of data that Zippin will Process in connection with this Agreement. During the Term, and until the return, deletion, or destruction of Customer Data, Zippin shall implement and maintain appropriate administrative, technical, and physical safeguards and other security measures to prevent any unauthorized Processing of Customer Data and to ensure the ongoing confidentiality, integrity, and resilience of Zippin’s systems. Such safeguards and security measures shall include, without limitation, security procedures that are consistent with International Standards Organization (ISO) 27001 and 27002 and any successor standards or updated version thereof, as appropriate (“Security Practices”) to safeguard the confidentiality, integrity, and availability of Customer Data and to protect against unauthorized access, acquisition, and/or interference by third parties, the introduction of malicious code, intrusion, theft, destruction, loss or alteration, including the implementation of industry-standard virus protection systems and intrusion detection systems. Zippin shall use industry-standard encryption when (i) Processing Personal Information; (ii) Customer Data is transferred to any mobile device or mobile storage or removable media; (iii) moving any type of data storage device or electronic or optical medium containing Customer Data beyond Zippin’s logical or physical controls or those of Zippin’s data storage provider; or (iv) electronically transferring Customer Data outside of Zippin’s or its data storage provider’s network. Zippin has in place, and materially complies with, a comprehensive written information security program that (A) complies with applicable law(s), (B) is reviewed on an annual basis or upon a material change in Zippin’s business practices, and (C) identifies a person within Zippin’s senior management who has responsibility for privacy and data security matters. The Services have been designed, developed, and tested according to generally accepted industry practices to appropriately safeguard Customer Data against unauthorized access and/or interference by third parties, intrusion, theft, destruction, loss or alteration. REPRESENTATIONS, WARRANTIES AND REMEDIES; DISCLAIMERS. Each party represents and warrants to the other party that (i) it has full right, power and authority to enter into and fully perform its obligations under this Agreement, (ii) the execution, delivery and performance of the terms and conditions of this Agreement do not conflict with any other agreement to which it is a party or by which it is bound, (iii) it will at all times comply with all laws, rules and regulations applicable to its activities, duties and obligations hereunder, and it will maintain all licenses, permits and other permissions necessary to provide or use the Services. Software Warranty. Zippin warrants that each item of Software, as delivered or updated by Zippin and properly installed and operated on the Equipment it is originally licensed for, will function substantially as described in its then-current Documentation for ninety (90) days following acceptance of any item of Software specified in the applicable Order Form. If any item of Software fails to so perform during its warranty period, as the sole remedy Zippin or Zippin’s supplier will provide a suitable fix, patch or workaround for the problem as a Software update. Zippin makes no representations or warranties with respect to any third party software included in the Software. Notwithstanding the preceding sentence, any warranty provided by a third party copyright owner in its standard license terms will flow through to the Customer for third party software provided by Zippin, to the extent permitted by the third party license. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, ZIPPIN MAKES NO REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, THE ZIPPIN PRODUCTS AND THE ZIPPIN-PROVIDED EQUIPMENT ARE PROVIDED “AS-IS” AND ZIPPIN DISCLAIMS ANY REPRESENTATION THAT THE ZIPPIN PRODUCTS OR THE ZIPPIN-PROVIDED EQUIPMENT WILL BE UNINTERRUPTED OR ERROR FREE OR THAT PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES WILL BE UNINTERRUPTED OR ERROR FREE. INDEMNIFICATION. Subject to the terms of this Agreement, Zippin will defend Customer and its directors, officers, employees and permitted assigns (collectively the “Customer Indemnitees”) against any third party claim brought against the Customer Indemnitees that the Zippin Products infringe such third party's Intellectual Property Rights and indemnify the Customer Indemnitees from the resulting costs and damages awarded against the Customer Indemnitees to the third party making such claim, by a court of competent jurisdiction or agreed to in settlement; provided that (i) Customer promptly notifies Zippin of such claim, (ii) Zippin will have the sole control of the defense and/or settlement thereof (provided, however that the Zippin will not enter into any settlement agreement that would result in any admission or payment by the Customer Indemnitees without the Customer Indemnitees’ prior written consent), and (iii) Customer furnishes to Zippin, upon Zippin’s reasonable request, all information available to Customer for such defense. Zippin will have no liability under this Section to the extent that the alleged infringement is based on: (i) the modification of the Zippin Products by anyone besides Zippin or its authorized agents; (ii) any use of the Zippin Products not in compliance with the Documentation or this Agreement; (iii) any combination, operation or use of the Zippin Products with products, service or data not furnished or approved in writing by Zippin, if such a claim would have been avoided but for such combination, operation or use; (iv) Customer’s use of the Zippin Products after notice of the alleged or actual infringement from Zippin or an appropriate authority; (v) any Intellectual Property Right owned or licensed by Customer, excluding the Zippin Products licensed to Customer pursuant to this Agreement; (vi) Zippin’s compliance with any designs, specifications or instructions provided by Customer; (vii) use of any older release or version of the Zippin Products when use of a newer release or version would have avoided the infringement; (viii) Pre-Installed Code; or (ix) open source software. If the Zippin Products become, or (in Zippin's opinion) are likely to become, the subject of any such third party claim, then Zippin (at its sole cost and expense) may either: (i) procure the right for Customer to continue using the Zippin Products as contemplated hereunder; (ii) modify the Zippin Products to render them non-infringing; or (iii) replace the Zippin Products with equally suitable, functionally equivalent, compatible, non-infringing Zippin Products. If none of the foregoing are commercially practicable despite Zippin’s commercially reasonable efforts and if Customer is not permitted to continue using the Zippin Products, then Customer will be entitled to terminate the Order Form for the infringing Zippin Products and receive a pro-rata refund of that portion of the License Fees paid for the infringing Zippin Products which would have been applicable to the remaining portion of the applicable Subscription Term after the effective date of such termination. THIS SECTION STATES THE CUSTOMER INDEMNITEES’ SOLE AND EXCLUSIVE REMEDY AND ZIPPIN’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE PARTIES TO THIS AGREEMENT. EXCEPT IN CONNECTION WITH THE BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR NON-PAYMENT OF ANY AMOUNTS DUE HEREUNDER, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE DAMAGES EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO ZIPPIN UNDER THIS AGREEMENT IN THE MOST RECENT TWELVE (12) MONTH PERIOD PRIOR TO THE ACTS GIVING RISE TO SUCH DAMAGES AND/OR THIRD PARTY CLAIM. DISPUTE RESOLUTION. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflict of laws principles. This Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California. If Customer is outside of the United States, the parties agree that rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. All disputes between the parties arising from or concerning in any manner the subject matter of this Agreement will be resolved through binding arbitration by a single arbitrator pursuant to the American Arbitration Association’s rules applicable to commercial disputes. The arbitration will be held in the City and County of San Francisco, California. GENERAL. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect. In addition, the parties acknowledge that the letter agreement to which these Terms and Conditions are attached shall supersede these Terms and Conditions in the event of a conflict of provision. Failure by a party to enforce any term of this Agreement shall not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties. The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party. Neither party will be liable for any failure or delay in its performance under this Agreement, except the making of payments, due to causes, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, strikes, riot, war, sabotage, terrorism, failure of suppliers and governmental action, which are beyond its reasonable control (each, a “Force Majeure Event”). The section titles and numbering of this Agreement are displayed for convenience and have no legal effect. This Agreement may be executed in counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same agreement. The Agreement to which these terms and conditions are attached is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. [End of Zippin Terms and Conditions] EXHIBIT A SERVICE LEVEL AGREEMENT This Service Level Agreement (“SLA”) specifies the technical support and service level terms and conditions for the Services and Software. 1. SCOPE OF TECHNICAL SUPPORT. 1.1 Zippin will provide technical support to Customer to assist resolution of issues encountered in the installation, configuration and use of the Services and the Software as supplied to Customer by Zippin. 1.2 Zippin will provide technical support only during the period for which Customer has pre-paid the applicable Services and Software license fees. 1.3 Technical support is available only for the current generally available release of the Software and the immediately preceding “Major” or “Minor” software release. In this context, “Major” means a release of the Software designated by a change in the numeric identifier in the digit(s) to the left of the decimal point (e.g., a change from version 3.x to 4.0) and “Minor” means a release of the Software designated by a change in the numeric identifier in the digit(s) to the right of the decimal point (e.g., a change from version 3.1 to 3.2). 1.4 Technical support does not include: 1.4.1 Training in the features and functionality of the Services or the Software. 1.4.2 Information or assistance related to Customer’s customization, modification or extension of the Services or the Software. 1.4.3 Information or assistance on technical issues related to the installation, administration and use of products and/or services other than the Services or the Software, such as databases, computer networks and communications systems, even if such products and/or services are used by Customer in connection with the Services or the Software. 1.4.4 Services or Software enhancement requests. 1.4.5 Information or assistance related to Equipment. 2. DESIGNATED CONTACTS. 2.1 Access to technical support must be through an individual designated as one of Customer’s points of contact for technical support (each a “Designated Contact”). Before making use of technical support for the first time, Customer must identify up to two (2) Designated Contacts. Zippin will provide each Designated Contact with a login ID and password for access to Zippin’s online technical support portal. Zippin will make reasonable commercial efforts to provide the login IDs and passwords within two (2) business days after receipt of all of the information required to identify the Designated Contacts. 2.2 Zippin will not respond to requests for technical support from, or provide technical support information to, representatives of Customer other than the Designated Contacts. 3. TECHNICAL SUPPORT REQUESTS. 3.1 Technical support requests may be submitted on a 24/7 basis via email or chat to Zippin’s then-current technical support intake email address. 3.2 When submitting a technical support request, Customer must (i) provide Zippin with all information necessary for Zippin to address the request, and (ii) respond promptly with any information reasonably requested by Zippin to clarify the request. 3.3 Zippin will process requests for technical support during normal business hours Monday through Friday, from 8:00 a.m. - 5:00 p.m. PT, excluding holidays (“Business Hours”), with the exception of critical requests, which will be processed at all hours. Currently, the holidays Zippin observes are: New Year’s Day (January 1st), Memorial Day (last Monday of May), Independence Day (July 4th), Labor Day (first Monday of September), Thanksgiving (4th Thursday of November) and the Friday after, and Christmas Day (December 25th). 4. PRIORITY DEFINITIONS AND RESPONSE TIMES. Priority Response Time Priority 1: Critical The Services or the Software are non-functional or experiencing a severe operational disruption causing a major function to continuously fail or to fail on a consistent basis with no work-around or recovery action possible Within 15 Minutes, 24 hours a day, 7 days a week Priority 2: Major The Services or the Software are operating but at a significantly reduced level of performance. Operational disruptions cause a major function to periodically fail but that is recoverable. Customer’s business may continue uninterrupted although performance may be degraded. Within 8 Business Hours Priority 3: Normal A minor function of the Services or the Software does not work properly or a non-disruptive error has been encountered. Customer is experiencing a problem and requires technical advice or a recommendation for a solution. New installations that have not been cut over to a production environment are considered to be in this category. Within 24 Business Hours Priority 4 : Info/Question Minor, non-disruptive error or function of the Services or the Software that has little operational impact. Request for general information. Within 48 Business Hours 5. RESOLUTION OF TECHNICAL SUPPORT REQUESTS. 5.1 Zippin will assign technical support and engineering resources to technical support requests in accordance with the reported Priority level of each request. Once reported, the Priority level of a technical support requests may be changed with Customer’s consent. 5.2 Due to the various factors which may contribute to a technical support issue, Zippin cannot guarantee the resolution of any particular technical support request within a fixed period of time. 5.3 Resolution of a technical support request may depend on the technical ability of Customer’s Designated Contact to provide accurate and detailed information and to conduct diagnostic and test activities as requested by Zippin’s technical support personnel. Zippin assumes no responsibility for Customer’s Designated Contact’s technical abilities. 5.4 Resolution of a technical support request may depend on the availability of Customer’s technical resources to assist Zippin’s technical support personnel with their resolution of the case and Customer’s implementation of any resolution. Zippin assumes no responsibility for Customer’s technical resources. 5.5 Resolution of a technical support request may depend on Zippin making use of remote access (via Web browser, FTP, SSH, etc.) to Customer’s Services or Software installation in order to resolve issues. Customer will make reasonable commercial efforts to facilitate such access if requested by Zippin. 6. SOFTWARE UPDATES. Customer will be provided with, and agrees to accept and install within fourteen (14) days, all updates, enhancements, and/or new releases (collectively, “Updates”)_to the Software that are generally provided to Zippin’s customers. Failure to accept and install any Updates within the 14 day acceptance window will void any Software warranty. Updates will be provided to Customer at no additional cost. 7. SERVICES AVAILABILITY. 7.1 The “Availability” (as defined below) of the Services will be at least 99.9% measured on a calendar month basis (the “Availability Commitment”). “Availability” means the Services being available at Zippin’s point of presence or API endpoint, excluding actual downtime: (i) for up to four (4) hours of scheduled maintenance per calendar month, performed during the regular planned maintenance window as Zippin may reasonably designate from time to time, provided that such window(s) are not scheduled Monday through Friday from 5 a.m. to 5 p.m. PT; (ii) for emergency maintenance of the Services, of which Zippin will notify Customer as soon as is practicable but will first endeavor to remedy the emergency; (iii) caused by acts or omissions of Customer or anyone gaining access to the Services through Customer’s usernames and passwords; (iv) caused by Customer’s hardware and network services, which components are controlled by Customer and whose performance or failure to perform can impair Customer’s connections to the Internet and the transmission of data; and (v) caused by Force Majeure Events (as defined in the Agreement). 7.2 If the Services fail to meet the Availability Commitment, Customer will report the failure to Zippin within fifteen (15) days of the end of the affected calendar month. To the extent that Availability falls below the Availability Commitment in any given month, Zippin shall issue a service credit to Customer that may be applied towards future services as set forth below: System Availability Service Level Credit 99.5% to 99.8% 1% 98.1% to 99.4% 5% 90.1% to 98.0% 10% 7.3 If the Services fail to meet the Availability Commitment for three (3) consecutive calendar months, or if the System Availability falls to or below 90.0% for any given month, then within thirty (30) days following the conclusion of the third consecutive calendar month, Customer may terminate the Agreement by giving Zippin thirty (30) days prior written notice of termination, without liability for any cancellation fees, penalties or other damages associated with termination, and Customer shall be entitled to a refund of unearned, prepaid license fees, if any, pro-rated from the effective date of such termination through the end of the applicable prepaid period. 7.4 Notwithstanding any other term or provision in the Agreement, the remedies stated in Section 7 of this SLA are Customer’s sole and exclusive remedies for Zippin’s failure to meet the Availability Commitment specified herein.