SMARTHOP MASTER SERVICES AGREEMENT

IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS SMARTHOP MASTER SERVICES AGREEMENT (THIS “AGREEMENT”). BY AGREEING TO AN ORDER FORM INCORPORATING THIS AGREEMENT, CLICKING “I ACCEPT”, OR ACCESSING OR USING SMARTHOP’S PROPRIETARY SOFTWARE PLATFORM (THE “PLATFORM” ) AND/OR UTILIZING THE SERVICES (AS DEFINED BELOW), OR ACCESSING OR USING THE PLATFORM AND/OR SERVICES AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY ON WHOSE BEHALF YOU ACCESS OR USE THE PLATFORM AND/OR SERVICES (“CUSTOMER”), ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT WITH SMARTHOP, INC. (“SMARTHOP”), AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE PLATFORM AND/OR SERVICES. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT CUSTOMER ACCEPTS THIS AGREEMENT.

1. Services          

1.1. Services. SmartHop will provide to Customer the serviced described in one or more order forms mutually executed by the parties (each, an “Order Form”). Each Order Form shall expressly reference this Agreement and, upon execution, shall be deemed incorporated into and made a part of this Agreement. In the event of a conflict between this Agreement or an Order Form, the terms of this Agreement shall control.

1.2. Deliverables. During the course of providing the Services, SmartHop may design, develop for or deliver to Customer documentation and other tangible deliverables (collectively, the “Deliverables” ). Deliverables shall be deemed accepted upon receipt. Subject to the terms of this Agreement, SmartHop grants Customer a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement to use the Deliverables for Customer’s internal business purposes.          

1.3. Cooperation. Customer acknowledges and agrees that SmartHop’s ability to successfully provide the Services and deliver the Deliverables in a timely manner is contingent upon performance by Customer of the obligations set forth in this Agreement. SmartHop shall have no liability for deficiencies in the Services or Deliverables resulting from any act or omission of Customer, or any of its employees, contractors, or agents. If any Services are required to be provided on-site at a Customer’s premises, Customer shall provide safe and adequate space, power, network connections and access to applicable hardware, software and other equipment and information, and assistance from qualified personnel familiar with Customer’s hardware, software, other equipment and information, as reasonably requested by SmartHop.          

1.4. Access to Platform. Subject to the terms and conditions of this Agreement, including payment of all applicable fees, if Customer has purchased access to the Platform as set forth in the applicable Order Form, SmartHop hereby grants to Customer, solely during the term of the applicable Order Form, a personal, non-sublicensable, nonexclusive, nontransferable, limited right to access and use the Platform, over the Internet, solely for Customer’s internal purposes in connection with the use of the Services, and in accordance with the applicable documentation, and subject to any usage parameters specified on the applicable Order Form or in the applicable documentation or in writing by SmartHop.          

1.5. Restrictions. Customer may not, and will not permit or induce any third party (including, without limitation, any of its personnel) to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the structure of or the source code from, or the underlying technology of, the Platform; (ii) distribute, license, sublicense, assign, transfer, provide, lease, lend, rent, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use the for the benefit of any third party, the Platform and/or Services; (iii) use or access the Platform and/or Services in order to build a similar or competitive product or service; (iv) copy, reproduce, modify, adapt, translate, or create derivative works of the Platform and/or Services (v) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of SmartHop or its suppliers on or within the Platform or any related documentation, and/or documents or materials provided by SmartHop in connection with the Services; or (vi) use the Platform and/or Services in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency. Customer acknowledges and agrees that Customer is solely responsible for the use of the Services and Platform under this Agreement by Customer’s personnel in accordance with this Agreement, and any breach of this Agreement by any of Customer’s personnel will be deemed a breach by Customer.          

1.6. Customer Data. As between the parties, Customer shall retain all right, title and interest in and to all data or information (including personally identifiable information) of its personnel including, without limitation, account profile information, usernames, passwords, or other information provided by, or on behalf of, Customer and its personnel in connection with the use and/or provision of the Services and/or use of the Platform (collectively, “Customer Data”). Customer hereby grants to SmartHop a worldwide, royalty-free, fully sublicenseable, non-exclusive license to use the Customer Data solely for the purposes of implementing, maintaining and improving the Services and/or Platform and fulfilling its obligations hereunder. With respect to any personally identifiable information processed by or made available to SmartHop in connection with the provisions of the Services and/or Customer’s access and/or use of the Platform hereunder (“Personal Data”) which is subject to any applicable data protection laws and/or regulations (“Applicable Data Laws”), as between Customer and SmartHop, Customer is the data controller and SmartHop is merely a data processor and/or service provider as such terms are defined pursuant to the Applicable Data Laws. Customer represents and warrants that: (i) Customer has all the rights necessary to grant the licenses granted herein to SmartHop in and to such Customer Data; (ii) Customer is in compliance with all Applicable Data Laws; and (iii) Customer has obtained all permissions and/or approvals from each applicable data source as may be necessary or required to make available and/or transmit such data through the Services and/or Platform. Notwithstanding the foregoing, Customer Data does not include non-identifiable aggregate data and usage statistics compiled by SmartHop in connection with Customer’s or its personnel’s use of the Services and/or Platform, which data and statistics may be used in SmartHop’s sole discretion (but which SmartHop may not disclose to any third party in a manner that identifies Customer or any personnel). Customer is solely responsible for taking appropriate measures to back up Customer's systems and data and all other necessary measures to prevent any file or data loss. In addition, Customer’s agrees to, at SmartHop’s request, execute and/or enter into any documents, agreements, statements, or policies deemed necessary or appropriate by SmartHop in its discretion to comply with any Applicable Data Laws with respect to any Personal Data.

2. Fees & Payment Terms          

2.1. Fees. The fees payable by Customer for the Services and/or access to the Platform (if applicable) are set forth on each Order Form and shall be paid on the dates set forth in the applicable Order Form. SmartHop may increase the amount of fees and rates payable by Customer upon written notice to Customer, provided that any such increase shall not be more than once in any twelve (12) month period during the term of this Agreement.          

2.2. Payment Terms. Customer will reimburse SmartHop for all reasonable travel and other related expenses incurred by SmartHop in its performance hereunder; provided, however, that such expenses shall have been pre-approved by Customer. Customer authorizes SmartHop, and/or SmartHop’s third party payment service provider, to charge Customer for all applicable fees due by Customer hereunder using Customer’s selected payment method, and Customer will issue the required payment documentation. Unless otherwise set forth on the applicable Order Form, Customer shall be automatically charged by SmartHop, or through SmartHop’s third party payment service provider, for the fees due hereunder Order Form using Customer’s selected payment method prior to each billing period specified on the applicable Order Form. If Customer’s automatic recurring payment is declined or unable to be processed for any reason, such payment shall be deemed past due. Payments made under this Agreement after their due date will incur interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. In addition, SmartHop reserves the right to immediately suspend or terminate any services provided hereunder and/or Customer’s access to the Platform in the event the fees due and payable by Customer are more than thirty (30) days late. All payments shall be made in USD. All fees payable under this Agreement are non-refundable.          

2.3. Audit Right. During the term of this Agreement and for one (1) year thereafter, SmartHop or its designated agent may inspect Customer’s facilities and records to verify to verify that Customer has paid SmartHop the correct amounts owed under this Agreement and otherwise complied with the terms of this Agreement. Any such inspection will take place only during Customer’s normal business hours and upon not less than ten (10) business days’ prior written notice from SmartHop. Customer shall reasonably cooperate with such audit and shall make such personnel and records available as SmartHop may reasonably request. The audit will be conducted at SmartHop’s expense, unless the audit reveals that Customer has underpaid the amounts owed to SmartHop by more than five percent (5%) or failed in some other material respect to comply with the terms of this Agreement, in which case Customer will reimburse SmartHop for all reasonable costs and expenses incurred by SmartHop in connection with such audit. Customer will promptly pay SmartHop for any amounts shown by such audit to be due and owing to SmartHop.

5. Confidentiality, Data protection & Publicity          

5.1. Confidentiality. “Confidential Information” means any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, the Platform and any non-public technical and business information. Confidential Information does not include information that (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure. Customer and SmartHop will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party’s Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall use less than reasonable care. The receiving party may disclose the Confidential Information of the disclosing party if required by judicial or administrative process, provided that the receiving party first provides to the disclosing party prompt notice of such required disclosure to enable the disclosing party to seek a protective order. Upon termination or expiration of this Agreement, the receiving party will, at the disclosing party’s option, promptly return or destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.          

5.2. Publicity. During the term of this Agreement, Customer hereby agrees that SmartHop shall have the right, but not the obligation, to include Customer’s name and logo as a customer who uses the Platform and/or Services on the SmartHop’s websites and in other marketing materials promoting the Platform and/or Services.

6. Indemnification          

6.1. Indemnification by Customer. Customer hereby agrees to indemnify, defend and hold harmless SmartHop and its parents, affiliates, subsidiaries, licensors, and third party service providers, and its and their respective officers, directors, employees, agents, representatives, and contractors (each, a “SmartHop Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by any SmartHop Party in connection with any actual or alleged claim arising out of, or relating to: (i) Customer’s breach of this Agreement, or violation of any applicable law, rule or regulation; (ii) Customer’s use of the Platform and/or Service; and (iii) Customer’s gross negligence, fraudulent misrepresentation or willful misconduct.          

6.2. Indemnification by SmartHop. SmartHop hereby agrees to indemnify, defend and hold harmless Customer from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) attributable to any third party claim, action or proceeding brought against Company, to the extent arising out of or relating to: (i) SmartHop’s violation of any applicable law, rule or regulation; or (ii) SmartHop’s gross negligence, fraudulent misrepresentation or willful misconduct.          

6.3. Procedure. The indemnifying party shall have the control of the defense and related settlement of any claims. The indemnified party shall provide the indemnifying party with prompt written notice of the claim. The indemnified party and its counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the indemnifying party in the defense or settlement of any claim. The indemnifying party shall not in any event, consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of any indemnified party without the prior written consent of each relevant indemnified party (such consent not to be unreasonably withheld or delayed).

7. DISCLAIMER. THE PLATFORM AND SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND; AND SMARTHOP EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SMARTHOP DOES NOT WARRANT THAT THE PLATFORM AND/OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE USE OF THE PLATFORM AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PLATFORM AND/OR SERVICES WILL BE CORRECTED. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE PLATFORM AND SERVICES AND ALL RESULTS OF SUCH USE IS SOLELY AT CUSTOMER’S OWN RISK

8. Limitation of Liability          

8.1. Consequential Damages Waiver. UNDER NO CIRCUMSTANCES, SHALL SMARTHOP BE LIABLE TO CUSTOMER, ANY END USER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE PLATFORM OR SERVICES, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED AND EVEN IF SMARTHOP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.          

8.2. Limitation of Damages. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL SMARTHOP’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR FOR INDEMNITY OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO SMARTHOP UNDER THE APPLICABLE ORDER FORM GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SMARTHOP’S LIABILITY.          

8.3. Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.          

8.4. Jurisdictional Issues; Allocation of Risk. SOME JURISDICTIONS MAY NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE DISCLAIMERS, LIMITATIONS AND/OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN SUCH EVENT, THE LIABILITY OF SMARTHOP FOR SUCH DAMAGES WITH RESPECT TO THE PLATFORM AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION. The sections of this Agreement that address indemnification, limitation of liability and the disclaimer of warranties allocate the risk between the parties. This allocation of risk is an essential element of the basis of the bargain between the parties.

9. GOVERNMENT RIGHTS. The Platform is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.

10. EXPORT. Customer acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Platform. Customer agrees that it will not export or re-export the Platform without the appropriate United States or foreign government licenses or permits.

11. GOVERNING LAW & JURISDICTION. This Agreement will be construed and enforced in all respects in accordance with the laws of the state of California, without reference to its choice of law rules and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Notwithstanding the foregoing, SmartHop may seek injunctive or other equitable relief in any court of competent jurisdiction to protect any actual or threatened misappropriation or infringement of its intellectual property rights or those of its licensors.

12. NOTICES. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, e-mail, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) business days after deposit in the U.S. mail, or upon confirmation of transmission if sent by e-mail. Notices shall be sent to each party at their respective addresses as set forth in the Order Form, as such contact information may be updated by each party from time-to-time pursuant to this Section 12. Customer agrees that all agreements, notices, disclosures, and other communications that SmartHop provides to Customer electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.

12. GENERAL PROVISIONS. Customer shall not assign this Agreement or transfer any of its rights hereunder, or delegate the performance of any of its duties or obligations arising under this Agreement, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of SmartHop. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any term of this Agreement is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement (which includes all Order Forms entered into hereunder) represents the entire agreement between the parties relating to its subject matter and supersedes all prior and/or contemporaneous representations, discussions, negotiations and agreements, whether written or oral. The terms on any purchase order, confirmation, or similar document submitted by Customer to SmartHop will have no effect and are hereby rejected. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms of any Order Form, the terms and conditions of this Agreement shall govern, and the conflicting or inconsistent provision in the Order Form will have no force or effect unless expressly stated otherwise in the Order Form. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties. Except for Customer’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.