Trendalytics Subscription Services Agreement

Last Updated: July 3, 2019

This Trendalytics Subscription Services Agreement (“Agreement”) is entered between Trendalytics Innovations Labs, Inc. (“Trendalytics”) and Company (as designated on the Trendalytics Order Form), and governs Company’s subscription to the Services. Trendalytics provides software-as-a-service subscription services that monitor consumer demand forecasting in the apparel and accessories industry (“Services”).

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, BY USING (OR MAKING ANY PAYMENT FOR) THE SERVICES, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (1) AGREE TO THIS AGREEMENT ON BEHALF OF THE COMPANY; AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND COMPANY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

The parties agree as follows:

1. DEFINITIONS

`“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent of the voting interests of the subject entity.

“Company Data” means all electronic data or information provided to Trendalytics by Company for the purpose of providing the Services.

“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including business and marketing plans, technology and technical information, product plans and designs, and business processes. Company’s Confidential Information includes Company Data, and Trendalytics’ Confidential Information includes the Services. The terms of this Agreement and all Order Forms are Confidential Information of both parties. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.

“Documentation” means Trendalytics-provided user documentation, in all forms, relating to the Services (e.g., user manuals, online help files).

“Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.

“Order Form” means an ordering document or online order specifying the Services to be provided under this Agreement that is entered into between Company and Trendalytics, including any addenda and supplements.

“Third-Party Applications” means online, web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.

“Users” means individuals who are authorized to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Company. Users may include Company employees, consultants, contractors, agents, or third parties with which Company transacts business.

2. SUBCRIPTION SERVICES

2.1 Order Forms. Each Order Form is subject to and governed by this Agreement. If there is a conflict between this Agreement and an Order Form, this Agreement will control unless the Order Form expressly states that a specific provision of this Agreement will be superseded by a specific provision of the Order Form.

2.2 Provision of Services. Subject to Company’s payment of all Fees and compliance with the terms of this Agreement, Trendalytics will make the Services available to Company on a subscription basis pursuant to this Agreement for the subscription term indicated on the applicable Order Form (the “Subscription Term”). Unless otherwise specified in this Agreement: (i) the Services are provided as User subscriptions and may be accessed by no more than the specified number of Users and in accordance with any other subscription limitations described in the applicable Order Form; (ii) additional User subscriptions may be added during the Subscription Term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the Subscription Term then in effect; and (iii) the added User subscriptions will terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

2.3 Documentation. Subject to Company’s payment of all Fees and compliance with the terms of this Agreement, Trendalytics grants to Company a limited, worldwide, non-exclusive, non-transferable license, without right of sublicense, during the Subscription Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Company’s authorized use of the Services.

3. USE OF THE SERVICE

3.1 Trendalytics Responsibilities. Trendalytics will: (i) provide basic support for the Services at no additional charge; (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime; and (b) any unavailability caused by circumstances beyond Trendalytics’ reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays; and (iii) provide the Services in accordance with applicable laws and government regulations.

3.2 Company Responsibilities. Company will: (i) be responsible for Users’ compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Company Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services through Company’s or Users’ accounts, and notify Trendalytics promptly of any such unauthorized access or use; and (iv) use the Services only in accordance with Trendalytics’ policies and applicable laws and government regulations.

3.3 Use Restrictions. Company will not (i) make the Services or Documentation available to anyone other than Users; (ii) sell, resell, rent, or lease the Services or Documentation; (iii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party intellectual property, privacy, or other rights; (iv) interfere with or disrupt the integrity or performance of the Services; (v) attempt to gain unauthorized access to the Services or their related systems or networks; (vi) reverse engineer the Services; or (vii) access the Services in order to (a) build a competitive product or service; or (b) copy any features, functions, or graphics of the Services or Documentation. Company may export or use hard copies of content from the Services or Documentation for Company’s internal purposes only, and any such copies or exported content must clearly show Trendalytics as the source of such content.

4. FEES AND PAYMENT FOR SERVICES

4.1 User Fees. Company will pay all fees specified in all Order Forms (the “Fees”). Except as otherwise specified in this Agreement or in an Order Form: (i) Fees are quoted and payable in United States Dollars; (ii) Fees are based on Services purchased and not actual usage; (iii) payment obligations are non-cancelable and fees paid are non-refundable; and (iv) the number of User subscriptions purchased cannot be decreased during the applicable Subscription Term. User subscription Fees are based on monthly periods that begin on the subscription start date and each month thereafter. Fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Subscription Term.

4.2 Invoicing and Payment. Company will pay Fees as set forth in an Order Form in advance in accordance with the billing frequency stated in the applicable Order Form. Company will pay Fees using a method specified in the Order Form. If Company provides credit card information to Trendalytics, Company authorizes Trendalytics to charge such credit card for all Services. If the Order Form specifies that payment will be by a method other than a credit card, Trendalytics will invoice Company in advance unless otherwise specified in the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. If Company believes that Trendalytics has billed Company incorrectly, Company must contact Trendalytics no later than 60 days after the invoice date of the first invoice on which the error or problem appeared, in order to receive an adjustment or credit. 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.

4.3 Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including value-added, sales, use, or withholding taxes, assessable by any governmental authority (collectively, “Taxes”). Company is responsible for paying all Taxes associated with Company under this Agreement. If Trendalytics has the legal obligation to pay or collect Taxes for which Company is responsible, Trendalytics will invoice the appropriate amount to Company and Company will pay such Taxes, unless Company provides Trendalytics with a valid tax exemption certificate authorized by the appropriate taxing authority. Trendalytics is solely responsible for taxes based on Trendalytics income, property, and employees.

5. PROPRIETARY RIGHTS

5.1 Reservation of Rights. Trendalytics reserves all right, title, and interest in and to the Services, Trendalytics’ logos and trademarks, and any data associated with the Service (except the Company Data), including all related intellectual property rights. No rights are granted to Company under this Agreement other than as expressly set forth herein. Company reserves all right, title, and interest in and to its intellectual property, including its logos and trademarks and any Company Data. No rights are granted to Trendalytics under this Agreement other than as expressly set forth herein.

5.2 Ownership and Use of Company Data. Company shall exclusively own all rights, title and interest in and to all of Company Data. Company hereby grants Trendalytics a worldwide, non-exclusive, royalty-free, right, and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Company Data, in whole or in part, in any and all media or distribution methods (now known or later developed), in each case, solely as necessary to provide the Services to Company and its Users in accordance with this Agreement.

5.3 Usage Data. Trendalytics may 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 in a de-identified and aggregated form (“Usage Data”), and Trendalytics may (during and after the Term) use such Usage Data solely to maintain, improve, and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Trendalytics offerings.

5.4 Suggestions. To the extent Company gives Trendalytics feedback, comments, or suggestions concerning the Services, Documentation, or other services provided by Trendalytics (collectively, “Feedback”), Company hereby assigns to Trendalytics all right, title, and interest in and to the Feedback, and Trendalytics is free to use the Feedback without payment or restriction. At Trendalytics’ request and expense, Company will execute documents and take such further acts as Trendalytics may reasonably request to assist Trendalytics in acquiring, perfecting, and maintaining Trendalytics’ rights in and other legal protections for the Feedback.

6. CONFIDENTIALITY

6.1 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party: (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information for any purpose other than exercising its rights and performing its obligations under this Agreement; and (ii) the Receiving Party will limit access to Confidential Information to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less protective than those of this Agreement.

6.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information if it is compelled by law to do so, and the Receiving Party will give the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost and request, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7. INDEMNIFICATION

7.1 Trendalytics will defend and indemnify Company from and against any loss, damage, cost, and expense arising out of any third-party claim, demand, suit, or proceeding, including reasonable attorneys’ fees, incurred by Company arising out of or in connection with an allegation that Company’s use of the Services in accordance with this Agreement infringes, misappropriates, or otherwise violates any third-party intellectual property rights (a “Claim”) if: (i) Company gives Trendalytics prompt written notice of the Claim; (ii) Company grants Trendalytics full and complete control over the defense and settlement of the Claim; (iii) Company provides assistance in connection with the defense and settlement of the Claim as Trendalytics reasonably requests; and (iv) Company complies with any settlement or court order made in connection with the Claim. Company will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Trendalytics will have sole control over the defense and settlement of the Claim.

7.2 Trendalytics will have no obligation for any infringement, misappropriation, or other violation of third-party intellectual property rights relating to the Services to the extent that it arises out of or is based upon: (i) use of the Services in combination with other products or services; (ii) designs, requirements, or specifications required by or provided by Company; (iii) use of the Services by Company outside the scope of the license granted to Company; (iv) Company’s failure to use the Services in accordance with instructions provided by Trendalytics; or (v) any modification of the Services not made or authorized in writing by Trendalytics. This Section 7 states Trendalytics’ sole and exclusive liability, and Company’s sole and exclusive remedy, for the actual or alleged infringement, misappropriation, or other violation of any third-party intellectual property right.

8. WARRANTIES AND DISCLAIMER

8.1 Mutual Warranties. Each party represents and warrants to the other that: (i) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against the executing party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (iii) the execution, delivery, and performance of this Agreement by the executing party does not violate the laws of any jurisdiction or the terms of any other agreement to which it is a party or by which it is otherwise bound.

8.2 Trendalytics Warranties. Trendalytics represents and warrants that to the best of its knowledge, Company’s use of the Services and Documentation in accordance with this Agreement will not infringe, misappropriate, or otherwise violate any third party’s intellectual property rights.

8.3 DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, THE PARTIES MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER RELATING TO THIS AGREEMENT. TRENDALYTICS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. TRENDALYTICS DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES, THAT THE SERVICES ARE ERROR-FREE, OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. TRENDALYTICS DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. TRENDALYTICS EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF COMPANY’S USE OF THE SERVICES.

9. LIMITATION OF LIABILITY

9.1 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL TRENDALYTICS’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE LESSER OF (I) THE TOTAL AMOUNT PAID BY COMPANY TO TRENDALYTICS DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); AND (II) $10,000.

9.2 EXCLUSION OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TRENDALYTICS WILL NOT BE LIABLE TO COMPANY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, EVEN IF TRENDALYTICS IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

9.2.1 BASIS OF THE BARGAIN. THIS SECTION 9 IS INTENDED TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY TRENDALYTICS TO COMPANY AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

10. TERM AND TERMINATION

10.1 Term of Agreement. This Agreement commences on the effective date of the first Order Form entered into between the parties (the “Effective Date”) and continues until all User subscriptions have expired or been terminated.

10.2 Term of User Subscriptions. User subscriptions purchased by Company commence on the start date specified in the applicable Order Form and continue for the Subscription Term. Except as otherwise specified in the applicable Order Form, all User subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant Subscription Term. The per-User pricing during any such renewal term will be the same as that during the prior Subscription Term unless Trendalytics gives Company written notice of a pricing increase at least 30 days before the end of such prior Subscription Term, in which case the pricing increase will be effective upon renewal and thereafter.

10.3 Termination for Cause. A party may terminate this Agreement or any Order Form: (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately upon written notice to the other party of a material breach that is incapable of cure. Trendalytics may terminate or suspend the Services immediately upon written notice to Company without a cure period if Company breaches any of the terms of this Agreement relating to Trendalytics’ intellectual property rights or Trendalytics’ Confidential Information.

10.4 Termination for Insolvency. A party may terminate this Agreement or any Order Form If the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

10.5 Effect of Termination. Termination or expiration of this Agreement will result in termination of all ongoing Order Forms. Termination or expiration of a single Order Form will not result in termination or expiration of this Agreement or any other ongoing Order Forms. Upon any termination or expiration of this Agreement, Company will pay for any terminated or expired Order Forms up to and including the last day on which access to the Services is provided.

10.6 Surviving Provisions. Sections 1 (Definitions), 2.1 (Order Forms), 3.3 (Use Restrictions), 4 (Fees and Payment for Services), 5 (Proprietary Rights), 6 (Confidentiality), 7 (Indemnification), 8 (Warranties and Disclaimer), 9 (Limitation of Liability), 10.5 (Effect of Termination), 10.6 (Surviving Provisions), and 12 (General) will survive any termination or expiration of this Agreement.

11. PUBLICITY. Trendalytics may publicly list Company as a customer of Trendalytics and use Company’s trademark, trade name, and logo for marketing or promotional purposes and in other communication with existing or potential Trendalytics customers, resellers, or investors.

12. GENERAL

12.1 Force Majeure. Trendalytics will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform its obligations under this Agreement as a result of any cause or condition beyond Trendalytics’ reasonable control, so long as Trendalytics uses all reasonable efforts to avoid or remove those causes of non-performance.

12.2 Governing Law; Venue. This Agreement is governed by New York law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All claims arising under this Agreement will be litigated exclusively in the federal or state courts of New York, New York. The parties submit to the jurisdiction in those courts. Each party waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.3 Injunctive Relief. If either party breaches Sections 5 (Proprietary Rights) or 6 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available to it at law or in equity, seek injunctive or other equitable relief in response to any such breach.

12.4 Relationship of the Parties. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.

12.5 Waiver and Cumulative Remedies. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement. Other than as expressly stated in this Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party.

12.6 Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.

12.7 Attorney Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Company will pay on demand all of Trendalytics’ reasonable attorney fees and other costs incurred by Trendalytics to collect any fees or charges due to Trendalytics under this Agreement if Company breaches Section 4 (Fees and Payment for Services).

12.8 Assignment. Neither party may assign this Agreement or delegate its performance without the other party’s prior written consent (not to be unreasonably withheld or delayed), and any attempt to do so is void, except that either party may assign this Agreement without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this Section shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.

12.9 Entire Agreement. This Agreement (including all Order Forms) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.

12.10 No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.

12.11 Notices. All notices under this Agreement must be in writing, and will be considered given: (i) upon delivery, if delivered personally or by internationally-recognized courier service; or (ii) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested). Either party may update its notice address by notice to the other party in accordance with this Section.

12.12 Interpretation. Any heading, caption, or section title contained in this Agreement is for convenience only, and in no way defines or explains any section or provision. Any use of the term “including” or variations thereof in this Agreement should be construed as if followed by the phrase “without limitation.”

12.13 Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.