Business Services Shoptelligence Agreement

Business Services Shoptelligence Agreement

Parties

Recitals

WHEREAS, Service Provider ( ) provides retail analytics, merchandising strategy, in-store behavioral analysis and store layout optimization services marketed as Shoptelligence; and

WHEREAS, Client ( ) desires to retain Service Provider to perform Shoptelligence Services and deliver the deliverables described in this Agreement on the terms set forth below.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:

Scope of Work

Service Provider shall perform Shoptelligence Services as described below. Services include analysis of store traffic patterns, product placement optimization, planogram recommendations, staffing recommendations correlated to sales, and periodic performance reporting. All services and specific tasks shall be set forth in the scope field below.

Payment Terms

Client shall pay Service Provider the fees and expenses set forth below in consideration of the Services and Deliverables. Fees are exclusive of sales, use or other taxes which shall be the responsibility of Client unless exempt by law.

Term and Termination

This Agreement commences on the Start Date below and shall continue in effect until the End Date below unless earlier terminated in accordance with this Agreement.

Start Date:     End Date:

Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure such breach within the notice period above after receipt of written notice specifying the breach. Termination shall not relieve Client of its obligation to pay for Services performed and Deliverables delivered through the effective date of termination, nor shall it relieve Service Provider of obligations specified to survive termination.

Confidentiality

"Confidential Information" means non-public business, technical and financial information disclosed by one party to the other in connection with this Agreement. Receiving party shall hold Confidential Information in confidence, shall not disclose it to any third party except as permitted by this Agreement, and shall use it solely to perform its obligations under this Agreement. Confidential Information does not include information which (a) is or becomes publicly available through no fault of receiving party; (b) was lawfully in receiving party's possession prior to disclosure; (c) is received from a third party without breach of any obligation of confidentiality; or (d) is independently developed by receiving party without use of Confidential Information.

Upon termination or expiration of this Agreement, receiving party shall promptly return or destroy Confidential Information of the disclosing party and certify in writing that it has complied with these obligations, except to the extent retention is required by law or for archival backup.

Intellectual Property

All pre-existing intellectual property of each party remains the sole property of that party. Subject to receipt of full payment, Service Provider grants Client a non-exclusive, non-transferable license to use Deliverables for Client's internal business operations. Unless otherwise agreed in writing, Service Provider retains ownership of underlying methodologies, algorithms, templates and tools used to produce the Deliverables.

Indemnification and Limitation of Liability

Each party shall indemnify, defend and hold harmless the other party from third-party claims arising from its own breach of this Agreement, negligence, or willful misconduct. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, AND THE AGGREGATE LIABILITY OF SERVICE PROVIDER FOR ANY CLAIM ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE CLAIM.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the state specified below without regard to conflict of laws principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in that state for any dispute arising out of this Agreement.

Entire Agreement

This Agreement, together with any exhibits, attachments and statements of work signed by the parties, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether written or oral. Any amendment or modification must be in writing and signed by authorized representatives of both parties.

Miscellaneous

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will remain in full force and effect. Neither party may assign this Agreement without the prior written consent of the other, except that Service Provider may assign to an affiliate or in connection with a merger or sale of substantially all of its assets.

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