SUBSCRIPTION SERVICES AGREEMENT 1. SOFTWARE APPLICATIONS 1.1. “Software Applications” means the specific machine readable, object code modules as indicated in the Order, any updates derivatives, modifications, revisions and all permitted copies thereof for which Customer has a license to use or that may be supplied by Company or otherwise made available to Customer in accordance with the terms of this Agreement. The Software Applications will be available for use by Customer, subject to any restrictions or limitations described in the Order, in a Software-as-a-Service fashion. 1.2. The Software Applications licensed under this Agreement to Customer are designated on Page 1 of the Order form and includes some or all of the following modules: Hypersonix Analytics Platform. 2. SAAS SERVICES AND SUPPORT 2.1. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services [in accordance with the Service Level Terms attached hereto as Exhibit B]. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate. 2.2. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C. 3. RESTRICTIONS AND RESPONSIBILITIES 3.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. 3.2. With respect to any Software that is distributed or provided to Customer for their own internal use on the Customer Premises or devices; or for the use of their Shoppers on their premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services. 3.3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.] Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. 3.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. 4. CONFIDENTIALITY; PROPRIETARY RIGHTS 4.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by its prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. 4.2. Customer shall own all right, title, and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. 4.3. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. 5. PAYMENT OF FEES 5.1. Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. 5.2. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. 6. TERM AND TERMINATION 6.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. 6.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but Company elect to, but is not obligated to, delete stored Customer Data on backup and retention systems. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 7. WARRANTY AND DISCLAIMER 7.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 8. INDEMNITY 8.1. Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. 9. LIMITATION OF LIABILITY 9.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 10. INTERPRETATION 10.1. If any provision of this Agreement is found to be unenforceable, such provision shall be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable, and this Agreement shall otherwise remain in full force and effect. 11. TIME LIMITATION 11.1. Except for actions for non-payment or for breach of intellectual proprietary rights, no action arising out of or relating to this Agreement may be brought later than one (1) year after the cause of action became known to the injured Party. 12. NOTICES 12.1. All notices required or permitted under this Agreement and all requests for approvals, consents, and waivers, must be delivered by a method providing for proof of delivery. A confirmed facsimile transmission shall be deemed to provide proof of delivery. 13. INSURANCE 13.1. Company shall maintain, for the term hereof Comprehensive General Liability insurance on an occurrence basis, with liability limits of at least $1,000,000 (U.S.), combined single limit. If Customer so requests, Company shall send Customer a copy of a certificate evidencing insurance coverage. 14. MISCELLANEOUS 14.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request. EXHIBIT A - Professional Services 1. SERVICES - Customer may elect to obtain from Company optional professional services relating to the installation, implementation, and use of the Company’s Software including, but not limited to, user training and data conversion, pursuant to an Order, and subject to Customer’s payment of the Professional Services Fees as set forth in the Order (“Professional Services”). Unless otherwise specified in an Order, Customer shall be responsible for the installation and implementation of the Company’s Software Applications, user training, data conversion, and other services necessary for installing, implementing, and using the Software Applications. Customer may elect to engage Company to perform installation, user training and other services at Company’s prevailing service rates and upon the terms contained within the Order. 1.1 Subject to Customer’s payment of the Professional Services Fees set forth in the Order, Company shall provide the Professional Services to Customer as agreed to by the Parties in one or more Order. If the Professional Service Fees are not paid as and when provided, Company may suspend or terminate performance of Professional Services and withhold any remaining work product or Deliverable. 1.2 All right, title, and interest in and to any Deliverables and any part thereof, including (but not limited to) all copyrights, patents, mask work, trademarks, trade names, trade secrets and/or any other intellectual property rights therein, are and shall remain the sole and exclusive property of Company (or its suppliers). Customer is granted no title or ownership rights in or to the Software or the Deliverables. 1.3 Without derogating from the above, Company (on behalf of itself and its suppliers), reserves all proprietary rights in and to (i) all designs, engineering details and other data pertaining to the Software and/or any Deliverable, (iii) all source code versions of the Software and related source code materials (iii) all original works, computer programs, discoveries, inventions, patents, know-how, and techniques arising out of work done wholly or in part by Company or its contractors, and (iv) any and all products developed as a result of such work. 1.4 The Deliverables are licensed to Customer under the terms and conditions of the Agreement, which shall apply thereto. The Customer may use the Deliverables only in accordance with and subject to the terms and conditions of the Agreement. “Deliverable” means any work product and/or deliverable (including, without limitation, any designs, discoveries, inventions, know-how, techniques embodied therein) and the related Documentation, being the output of Services provided by Company to Customer, including, without limitation, any modifications, fixes, patches, workarounds, enhancements or derivative works of the Company’s Software Application. 1.5 Notwithstanding any other provision of this Agreement, Company shall be free to use any concepts, techniques and know-how used and developed in the course of any engagement and to continue to perform services similar to the Professional Services, including services to develop deliverables similar to the Deliverables, and including services rendered by personnel who have provided Professional Services to Customer, for other customers. 1.6 Customer shall reimburse reasonable and actual travel expenses which may incurred during the rendering of Professional Services. These expenses will be invoiced monthly and are due upon receipt. EXHIBIT B - Service Level Terms • The Services shall be available 99.9%, measured monthly, excluding scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. EXHIBIT C - Product Support Subject to Customer’s payment of the Services Fees as set forth in the Order, Company shall provide Support Services to Customer to enable the Software Applications to perform in all material respects in accordance with the Documentation. Customer shall report to Company any known errors, malfunctions, or defects that caused the applicable the Software Application to fail to perform any material functions as set forth in the Documentation. Support Services shall be limited to Company’s commercially reasonable efforts to correct the error, malfunction, or defect. Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 5:00 am through 5:00 pm U.S. Pacific Time, with the exclusion of United States Federal Holidays (“Support Hours”). Only individuals trained on the operation of the Software Applications shall have access to the Company’s Help Line for problem resolution. In no event will Company be responsible for providing support directly to Customer’s end users. When Customer Requests Product Support, Company will assign the criticality of the service request as defined below and will use reasonable efforts to respond within these target response times: Severity 1 (Critical Problems) - Severe Business Disruption • If the Software is not operational or operating with severe adverse effects that are critically impacting operations, then Company shall have the following objectives: (i) within 60 minutes of being contacted by Customer's Help Desk, a Company Support Analyst will communicate with Customer's contact that has been identified to review the reported issue and (ii) a 4 hour Recovery Time Objective. Severity 2 (Serious Problems) - Major Business Disruption • If the Software Application(s) are operating with a loss of major functionality based on the intended design resulting in adverse effects that are restricting operations and without attention to the situation, customer could be further negatively impacted and the Severity level will be escalated to a Severity 1 condition, then Company shall have the following objectives: (i) within 60 minutes of being contacted by Customer's Help Desk, a Support Analyst will communicate with Customer's contact that has been identified to review the reported issue and (ii) a 8 hour Recovery Time Objective. Severity 3 (Important Problems) - Minimal Business Disruption • If the Software Application(s) are operating with a loss of functionality, problem, defect or malfunction based on the intended design, but a workaround can be identified resulting in minor operational changes and no business disruption then Company shall have the following objectives: (i) within 60 minutes of being contacted by Customer's Help Desk, a Support Analyst will communicate with Customer's contact that has been identified to review the reported issue and (ii) a 36 hour Recovery Time Objective. Severity 4 (Minor Problems) - No Business Disruption • If the Software Application(s) are operating are operating with a loss of functionality, problem, defect or malfunction based on the intended design required for future business operations, but a workaround can be identified resulting in minor operational changes and no business disruption, then Company shall have the following objectives: (i) within 60 minutes of being contacted by Customer's Help Desk, a Support Analyst will communicate with Customer's contact that has been identified to review the reported issue and (ii) a 72 hour Recovery Time Objective. Recovery Time Objective shall mean the time it takes once all relevant information has been provided to the Company Support Analyst along with capturing and pulling any supporting data from the site and the time for Company to deliver an acceptable workaround or fix. Recovery time begins once the customer has conveyed the relevant information to the Support Analyst and all necessary data retrieval has been completed.