SUBSCRIPTION SERVICES GENERAL TERMS AND CONDITIONS

These Subscription Services General Terms and Conditions (the “Agreement”) are incorporated by reference into, and shall apply to, any Order Form or Statement of Work between the mysales POS, LLC Affiliate identified in an Order Form or Statement of Work issued hereunder (“mysales POS”) and the customer named on such Order Form or Statement of Work (“Customer”). Any capitalized term not defined herein shall be defined as set forth in such Order Form or Statement of Work. Collectively, mysales POS and Customer may be referred to herein as the “Parties” or in the singular as “Party”.

GENERAL TERMS AND CONDITIONS

1. Definitions

1.1. Affiliate means and include any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where "control" means the ownership of, or the power to vote, at least fifty-one percent (51%) of the voting stock, shares, or interests of such entity provided such entity agrees in writing to be unconditionally bound by the terms and conditions of this Agreement.

1.2 Cloud Services means the hosting services provided by mysales POS pursuant to the Exhibit C to this Agreement.

1.3 Confidential Information means any non-public, confidential or proprietary information or data, whether communicated in writing, orally, or by any other method, and whether or not patentable or copyrightable, that is provided by one Party (“Discloser”) to the other Party (“Recipient”) under this Agreement and that is (i) marked as “confidential” or “proprietary” by the Discloser at the time of disclosure, or within thirty (30) days after disclosure in written form; or (ii) information which a reasonable person engaged in a similar transaction would consider to be confidential information; further provided that, if such information or data relates to the “Service” as defined in Section 1.23, then such information and data will be “Confidential Information” whether or not it has been marked as “confidential” or “proprietary” by the Discloser. Without limitation, mysales POS’s Confidential Information will include the Service, web site architecture and content, its proprietary technology, or computer software in all versions and forms of expression, manuals, notes, Documentation, technical information, drawings, diagrams, or specifications. Customer’s Confidential Information will include the Customer Data.

1.4 Customer Data means any data, information, or material provided or submitted to the Service by Customer in the course of using the Service.

1.5 Customer Equipment means Customer’s computer hardware, software, and network infrastructure used to access the Service.

1.6 Customer Error Incident means any Service unavailability related to Customer’s applications, Customer Data, or Customer’s Equipment, or any act or omission of any user of the Service.

1.7 Derivative Work means a work of authorship based on one or more pre-existing works, such as a revision, modification, abridgement, condensation, expansion, or any other form in which the pre-existing work may be recast, transformed, or adapted.

1.8 Documentation means the information that mysales POS routinely provides regarding the Software and Service to customers via mysales POS’s website.

1.9 Force Majeure has the meaning as set forth in Section 14.1 of this Agreement.

1.10 Intellectual Property Rights means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

1.11 Login means the username and password assigned by Customer for each User.

1.12 Malicious Code means any computer viruses, worms, or any other software that is intended to damage or detrimentally alter a computer system or data.

1.13 Maintenance Services means the maintenance services provided by mysales POS pursuant to the Exhibit B of this Agreement.

1.14 Named User Model means the subscription model whereby Customer has purchased a committed number of Users to access the Service during the Subscription Term.

1.15 New Version Release has the meaning as set forth in the Exhibit B of this Agreement.

1.16 Order Form means mysales POS’s standard order form that (i) specifies the Service applications or modules provided to Customer; (ii) references this Agreement; and (iii) is signed by authorized representatives of the Parties and deemed incorporated into the Agreement.

1.17 Overage means the number of Users, Unique Logins, or Registrations in excess of the number of Users, Unique Logins, or Registrations, as applicable, as set forth in the applicable Order Form and as amended in any subsequent Order Form.

1.18 Professional Services means the services further described through a Statement of Work, pursuant to Exhibit A of this Agreement.

1.19 Professional Services Fee means the fee paid by Customer to mysales POS for the additional Professional Services as provided in Exhibit A and the applicable Statement of Work.

1.20 Registration means any form of training, (such as, but not limited to, documents, online courses, and/or instructor-led courses) registration event (either self- directed or by a third-party) that does not have a corresponding Registration Cancellation event within the same calendar month. Each training event registered via a combined structure such as a curriculum will be counted as an individual Registration.

1.21 Registration Cancellation means the action taken by Customer whereby either (i) the Registration is deleted or (ii) the Registration is replaced.

1.22 Registration Model means the subscription model whereby Customer has purchased a committed number of Registrations during the Subscription Term.

1.23 Service means the hosted, on-demand, web-based service offered by mysales POS, including the Software Modules, and updates made thereto from time to time and accessible via https://www.mysales.co.tz or another designated web site or IP address.

1.24 Service Deliverables means the items to be delivered to Customer in connection with any implementation or Professional Services mysales POS performs pursuant to Exhibit A, such as consulting reports, on-site training, integration work or modifications to the Software Modules, but excluding the Software Modules.

1.25 Software means the object code version of the mysales POS software or Third Party Products, made available through the Service under this Agreement.

1.26 Software Modules means the unmodified and fully compiled executable code for the Software identified in the Order Form(s) executed pursuant to this Agreement.

1.27 Statement of Work has the meaning as set forth in Exhibit A of this Agreement.

1.28 Subscription Service Fee means the committed fee paid by Customer for access to the Service during the Subscription Term.

1.29 Subscription Term(s) means the period(s) during which a specified number of Users are licensed to use the Service.

1.30 mysales POS Technology means all of mysales POS’s proprietary technology (including Software Modules, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by mysales POS in providing the Service.

1.31 Third Party Products means any products and/or services provided by mysales POS to Customer where mysales POS is a reseller of a third party.

1.32 Transaction means, with respect to the use of the expense management Software, the submission and approval of an expense report using the expense management Software.

1.33 Unique Login means a committed unique User who authenticate into the system one or more times in a calendar month or year, as defined in the applicable Order Form.

1.34 Unique Logins Model means the subscription model whereby Customer has purchased a committed number of Unique Logins.

1.35 User means any individual with an active account, for whom talent management data, (e.g., learning data, goals, appraisals, succession plans, etc.) or employment, payroll or expense related data exists in the database maintained by mysales POS for the benefit of the Customer. An active account means the account has been accessed or data in the account has been updated or was inputted during the relevant Subscription Term, and in the case of the Learning Management applications and their related modules, any individual for whom there is a user login account permitting such individual to access and use the Service is considered to constitute an individual with active account. Exceptions:

(A) For purposes of mysales POS’s learning management applications, data may be retained for persons who are flagged as inactive in the system for historical reporting purposes only and such persons are not counted as Users and are not allowed to login to the system or access any system functionality.

(B) For purposes of mysales POS’s talent management applications, a person who only accesses the system to provide feedback in a 360 assessment and/or act as an external job applicant and does not have any other data stored in the system is not counted as a User.

2. Service.

2.1 mysales POS will provide Customer with use of the Service, including a browser interface and login data, in addition to encryption, transmission, access to, and storage of Customer Data. As part of the Service, mysales POS shall provide the Maintenance Services set forth in Exhibit B and Professional Services mutually agreed upon via Statements of Work. mysales POS may at its sole discretion enhance the Service from time to time, at no cost or expense to Customer, provided any such enhancement will not, in any case, reduce the performance or functionality of the existing Service prior to such enhancement. mysales POS will set up a website for Customer from which Customer can access the Service and will notify Customer of the URL for such mysales POS website.

2.2 mysales POS hereby grants Customer a non-exclusive, non-transferable, worldwide right to access and use the Service, subject to the terms and conditions of this Agreement. Customer may only (a) access the Software Modules as stated in this Agreement; and (b) permit such access by Users.

2.3 Each User must have a Login with a unique user identification. mysales POS reserves the right to require Customer to alter any password if mysales POS believes it is no longer secure. Customer shall not permit more than one person to use each Login to access the Service or to otherwise share login accounts, user identifications, or passwords. Customer shall not deactivate a named individual’s access to the Service and assign such access to another named individual, except when the named individual is no longer employed by Customer (or, where applicable, a contractor of Customer). Customer is responsible for all access to the Service and activities conducted by individuals accessing the Service using the Logins, including each such individual’s compliance with the terms herein.

2.4 If Customer subscribes for services using two usage models each group of users must be managed in separate domain hierarchies. E.g., if the Named User Model and the Registrations Model are both used, Customer must manage all Registration Model Users accessing the Service on a per Registration basis in a separate domain hierarchy from all other Users under the root domain. All Users who are not managed in the separate domain hierarchy for Registration Model Users will be counted as Users under the Named User Model.

2.5 mysales POS shall have the right to verify the number of Users, Unique Logins, and/or Registrations under this Agreement at the end of each month. At the end of each quarter following the Effective Date, if there are usage Overages during the previous quarter, mysales POS shall submit a quarterly usage report to Customer summarizing the number of Users, Unique Logins, or Registrations, as applicable, on the Software during the previous quarterly period (“Usage Report”). Along with the Usage Report, mysales POS shall submit to Customer an invoice for any Overage owed to mysales POS based upon the Usage Report. For Workforce Management, Expense, or Payroll/HR OnDemand, such Overages shall be calculated and invoiced monthly. Once an Overage is detected, mysales POS may increase the total number of Users, Unique Logins, and/or Registrations with access to the Service to include those Users, Unique Logins, and/or Registrations added via the Overage, in which case the new total number of Users, Unique Logins, and/or Registrations shall form the basis for the number of authorized Users, Unique Logins, and/or Registrations with access to the Service for the Subscription Term, as well as any renewal terms thereafter, unless otherwise mutually agreed upon in writing between the Parties. Customer will pay mysales POS for all Users, Unique Logins, and/or Registrations added via such an Overage adjustment.

3. Restrictions.

3.1 Customer shall use the Service solely for Customer’s business purposes, in compliance with applicable law, and shall not: (i) sublicense, lease, or make the Service available to any unauthorized third party; (ii) send or store infringing, unlawful, defamatory, or libelous material; (iii) send or store any Malicious Code; (iv) access the Service by any means other than the Login, or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (v) modify, copy, or create Derivative Works based on the Service; (vi) reverse engineer the Service; (vii) access the Service for the purpose of building, selling, marketing, or otherwise offering a competitive product or service, or copying its features or user interface; or (viii) remove the copyright, trademark, or any other proprietary indicia or notices included within the Service or Service Deliverables, as well as those included on or in the documentation and training materials. All rights not expressly granted to Customer herein are expressly reserved by mysales POS. Customer may not access the Service if Customer is a direct competitor of mysales POS.

4. Customer Responsibilities.

4.1 Customer shall: (i) notify mysales POS promptly of any unauthorized use of any Login or any other known or suspected breach of security; (ii) report to mysales POS promptly and use reasonable efforts to promptly stop any copying or distribution of content that is known or suspected by Customer to be infringing or unlawful; and (iii) not impersonate another mysales POS customer or provide false information to gain access to or use the Service.

4.2 Customer shall be responsible for any costs in connection with establishment and maintenance of Internet connectivity to the Service, including telephone, communications, Internet service provider costs, computer hardware, fees charged by third parties, insurance, Internet access software, or any other costs incurred by Customer in accessing the Service.

5. Account Information and Data.

5.1 mysales POS does not own any Customer Data. Customer, not mysales POS, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and mysales POS shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any data that may result from Customer’s actions. mysales POS is not responsible for restoring lost data or damage to Customer Data that results from Customer’s actions. Customer hereby grants to mysales POS a non-exclusive, fully-paid and royalty-free license to reproduce, distribute, perform, display and otherwise use the Customer Data solely to provide the Service to Customer. Customer represents and warrants that: (i) Customer owns or otherwise has all consents and permissions necessary to grant the license set forth in this section for the Customer Data, and (ii) the Customer Data does not violate the privacy rights, publicity rights, Intellectual Property Rights, or other rights of any person or entity. mysales POS has the right (but not the obligation) to review any Customer Data and delete any Customer Data that in the sole judgment of mysales POS violates this Agreement; is prohibited content; is illegal; violates the rights, harms, or threatens the safety of any user or any other person; or creates liability for mysales POS, its Suppliers, or any user upon 30 days’ written notice specifying the alleged default or violation if the default or violation is not remedied within the notice period.

6. Intellectual Property Ownership.

6.1 mysales POS alone (and its suppliers, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the mysales POS Technology and the Service. Customer hereby assigns to mysales POS all Intellectual Property Rights in, or arising from, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Service or the mysales POS Technology. mysales POS may use such submissions as it deems appropriate in its sole discretion. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the mysales POS Technology or the Intellectual Property Rights owned by mysales POS and its suppliers. The mysales POS name, the mysales POS logo, and the product names associated with the Service are trademarks of mysales POS or its suppliers, and no right or license is granted to use them. Customer will not accrue any residual rights to the mysales POS Technology or Service, including any rights to the Intellectual Property Rights in connection therewith.

7. Payment Terms, Charges and Fees.

7.1 Customer agrees to pay mysales POS the Subscription Service Fee(s) set forth in an Order Form issued under this Agreement. The Subscription Service Fee(s) shall be due and payable annually in advance within thirty (30) days after the invoice date. Except as otherwise set forth herein, all amounts received by mysales POS pursuant to this Section 7 shall be non-refundable. In the event that Customer designates another entity to receive invoices on its behalf, Customer shall remain liable to Skillsoft for the timely payment of said invoices. Such designation may be made by written notice to Skillsoft.

7.2 Customer shall reimburse mysales POS upon demand for all reasonable costs incurred (including attorneys’ fees) in collecting past due amounts owed by Customer, and mysales POS reserves the right to charge interest of up to one and one-half percent (1.5%) per month, or the maximum charge permitted under applicable laws, on the past due amounts that are the subject of such collections activities. For the avoidance of doubt, mysales POS shall not bring an action to collect any past due fee that is the subject of a good faith dispute between the Parties.

7.3 mysales POS reserves the right to impose a reasonable reconnection fee in the event any termination of the Service under this Agreement is lifted by mysales POS as a result of Customer’s cure of a breach of its obligations hereunder.

7.4 Taxes. All amounts payable to mysales POS hereunder are exclusive of taxes. mysales POS shall be responsible for all taxes payable in connection with its provision of the Service and Service Deliverables to Customer and on its income therefrom. mysales POS shall invoice Customer and Customer shall be responsible for all sales, use, excise, service, or similar taxes payable in connection with its receipt and use of the Service and Service Deliverables under this Agreement. Notwithstanding the foregoing, prior to Customer’s execution of this Agreement Customer may provide mysales POS with a valid tax exemption certificate or direct pay permit acceptable to the applicable taxing authorities to allow the issuance of invoices to Customer without the applicable tax. In the event that Customer is legally required to withhold income tax from any payments to mysales POS under this Agreement, mysales POS shall provide Customer with a valid tax residency certification as required under any double taxation treaty then in effect to reduce or eliminate the income tax to be withheld from these payments. Customer shall withhold tax at the applicable rate in effect as of the date of payment and shall provide to mysales POS on a timely basis documentation evidencing payment of the tax withheld to the applicable tax authority.

8. Compliance with Laws

8.1 Compliance with Law. Each Party shall comply with all applicable laws and regulations in connection with its provisioning, downloading and/or use of the Service and Service Deliverables and in performing its obligations hereunder, including, but not limited to, export controls and embargo restrictions under the laws and regulations of the United States ("U.S.") and the European Union (“EU”), including without limitation export controls administered by the U.S. Department of Commerce, the United States Department of the Treasury Office of Foreign Assets Control, or other U.S. agencies.

8.2 Prohibited Jurisdictions. Customer acknowledges and further agrees that the Service and Service Deliverables shall not be used in, and none of the underlying information, software, or technology may be downloaded, transferred, or otherwise exported or re-exported to, any country to which the U.S. and/or the EU maintains an embargo applicable to the Service and Service Deliverables; nor shall Customer share the Service and Service Deliverables with a national or resident of any such country, or with any person or entity on the U.S. Department of the Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons List, Unverified List, or Entity List, or who is listed in General Order No. 3 as set forth in Title 15 of the U.S. Code of Federal Regulations, Part 736, Supplement No. 1 “Designated National”. The lists of Embargoed Countries and Designated Nationals are subject to change without notice.

8.3 Remedy. Notwithstanding any other provision of this Agreement, Customer agrees that mysales POS, in its sole discretion, may take such actions as it deems necessary to remedy a breach of any provision in this Section 8.

9. Term and Termination.

9.1 The term of this Agreement (the “Term”) will commence on the Effective Date and will expire on the furthermost End Date set forth in an Order Form issued under this Agreement, unless earlier terminated pursuant to this Section 9.

9.2 Either Party may cancel this Agreement and/or an Order Form issued under this Agreement (a) upon written notice to the other Party, if the other Party commits a material breach which it fails to cure within thirty (30) days of receipt of written notice of such breach, or which by the nature of the breach cannot be cured within such thirty (30) day period; or (b) immediately if the other Party has a receiver appointed, or makes an assignment for the benefit of creditors, or in the event of any insolvency or inability to pay debts as they become due by the other party, except as may be prohibited by applicable bankruptcy laws.

9.3 If mysales POS terminates this Agreement pursuant to subsection 9.2(a) or 9.2(b) above, then mysales POS reserves the right to pursue any and all rights and remedies available to it under applicable law, including, but not limited to, collection of the Subscription Service Fee. If Customer terminates this Agreement pursuant to subsection 9.2(a) above, then mysales POS shall not retain any amount previously paid by Customer for the period after the effective date of termination, but shall be entitled to receive and retain all amounts attributed to the period before the effective date of termination.

9.4 The rights and obligations of the Parties which either expressly or by their nature are to continue after the termination or expiration of this Agreement shall survive and remain in effect.

10. Representations and Warranties.

10.1 Representations and Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

10.2 Warranty on Service. mysales POS warrants that it will provide the Service in accordance with industry standard practices. During the term of an applicable Order Form executed under this Agreement the Service will substantially conform to the Documentation. In the event that a material defect is identified by Customer, and confirmed by mysales POS, then mysales POS, at its sole option and expense may: (i) make reasonable efforts to correct defects in the Software Module(s) that are documented by Customer, and confirmed by mysales POS; or (ii) replace the defective Software Module(s); or (iii) if mysales POS deems neither of the foregoing are commercially practicable, terminate the license granted herein with respect to the applicable Software Module, accept return of the defective Software Module and grant Customer a pro-rated credit of the unused portion of the license fees paid with respect to the defective Software Module. The remedy stated in this Section 10.2 shall be mysales POS’s entire obligation and Customer’s sole and exclusive remedy for breach of warranty hereunder and shall be in lieu of any other remedy available to Customer at law or in equity. This warranty shall not apply if the Software Module(s) have been (a) altered, modified, or enhanced by any party other than mysales POS; (b) subjected to misuse, negligence, or computer or electrical malfunction; or (c) used, adjusted, installed, or operated other than in accordance with the Documentation, or as authorized in writing by mysales POS. Furthermore, no warranties shall apply in the event of an uncured breach of this Agreement by Customer for which notice of breach has been given by mysales POS hereunder.

10.3 Limited Warranty on Service Deliverables. For a period of 30 days following the delivery of a Service Deliverable (“Service Deliverable Warranty Period”), mysales POS warrants that the Service Deliverable, as provided by mysales POS during the Service Deliverable Warranty Period, will in all material respects conform to and perform in accordance with the mutually-agreed specifications. Customer must report any breach of the foregoing warranty to mysales POS in writing pursuant to Section 14.5 of this Agreement within the Service Deliverable Warranty Period. Customer’s exclusive remedy for a breach of this warranty is the correction of any material reproducible nonconformity in the Service Deliverable so that it conforms to this warranty. If mysales POS determines that mysales POS is unable to correct the Service Deliverable after using commercially reasonable efforts to do so, then mysales POS’s sole and exclusive obligation shall be to refund the fees actually paid for such Service Deliverable provided that Customer discontinues all use of the Service Deliverable and certifies that Customer has done so and has destroyed all copies in Customer’s control.

10.4 DISCLAIMER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED. mysales POS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ABSENCE OF SECURITY INTEREST, LIEN, OR ENCUMBRANCE. SPECIFICALLY, AND NOT IN LIMITATION OF THE FOREGOING, mysales POS DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED. TO THE EXTENT THAT ANY IMPLIED WARRANTIES ARE DEEMED TO EXIST UNDER APPLICABLE LAW, THEY ARE HEREBY EXPRESSLY LIMITED IN DURATION TO THE DURATION OF ANY EXPRESS WRITTEN WARRANTY MADE HEREIN.

11. Limitation of Liability.

11.1 Fraud, Death, or Personal Injury. Neither Party excludes or limits its liability to the other for fraud, for death or personal injury resulting from its negligence or for any other liability which cannot be excluded or limited by law.

11.2 Non-Direct Damages. Neither Party shall be liable for any consequential, collateral, special, incidental, indirect, exemplary, or punitive damages, including, without limitation, loss of profits or revenue, loss of use, damage, loss or destruction of data, costs of cover, or costs of delay, however caused and based on any theory of liability, for any claims or causes of action arising out of or related to this Agreement or its subject matter. These limitations will apply even if a Party has been informed of the possibility of such damages or any other liability which cannot be excluded or limited by law.

11.3 In no event shall either Party’s aggregate liability for any claims arising in a given contract year (whether in contract, tort, or otherwise; and whether arising under this Agreement or arising out of or resulting from Customer’s use of the Service) exceed the total Subscription Service Fee paid or payable under this Agreement for said contract year.

11.4 The limitations of liability set forth in Sections 11.2 and 11.3 above shall not apply to (i) the Parties’ respective indemnification obligations under this Agreement; (ii) damages arising out of or in connection with Customer’s breach of Section 3.1 of this Agreement; or (iii) any damages arising out of or in connection with Customer’s misappropriation of mysales POS’s Intellectual Property Rights.

12. Indemnification.

12.1 Claims Related to the Service or Service Deliverable. mysales POS, at its own expense, shall indemnify, defend, and hold Customer harmless from and against all claims, damages or other liabilities asserted by, or payable to, a third party that the Service or any Service Deliverable infringe(s) a patent, copyright, trademark, or trade secret of said third party (each, a “Service Claim”). In order to seek or receive indemnification pursuant to the provisions of this Section 12.1, (i) mysales POS shall be notified promptly in writing by Customer of any Service Claim of which it is aware for which indemnification may be available; (ii) mysales POS shall have the sole control of the defense of any such Service Claim and of all negotiations for its settlement or compromise, provided that such settlement or compromise does not require the admission of liability, fault, or wrongful act or conduct on the part of Customer; and (iii) Customer shall cooperate reasonably with mysales POS in the defense, settlement, or compromise of such Service Claim at mysales POS's expense. mysales POS will not be responsible for the expenses, including attorney’s fees, of Customer incurred after mysales POS assumes defense of a Service Claim, but Customer may participate therein and retain counsel at its own expense. mysales POS will not be responsible for any settlement or compromise made by Customer without mysales POS’s written consent. mysales POS will not consent to the entry of any judgment or enter into any settlement or compromise affecting Customer, to the extent that the judgment, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of Customer, and/or otherwise involves more than the payment of money by mysales POS, without the prior written consent of Customer.

12.2 Exclusions. The foregoing provisions of this Section 12 notwithstanding, mysales POS shall not have any liability to Customer under this Section 12 to the extent that any infringement or claim thereof is based upon (i) Customer Data; (ii) use of the Service in combination with any equipment or software not supplied hereunder where the Service would not otherwise be infringing; (iii) compliance with designs, plans, or specifications provided by Customer; (iv) use of the Service in an application or environment for which it was not designed, not provided for in the Documentation, or not contemplated under this Agreement; (v) use of Software which has reached either its End of Support or End of Service, in accordance with the provisions of Exhibit C; (vi) use of Software other than the then-current version, where the indemnifiable claim would not have occurred but for Customer’s use of such non-current Software; (vii) use of the Service in breach of this Agreement; and/or (viii) any claims of infringement in which Customer or any Affiliate of Customer has an interest or license in the property allegedly infringed upon by the Service.

12.3 Injunction. If Customer’s use of the Service or a Service Deliverable is enjoined, or if in mysales POS’s sole judgment is likely to be enjoined, mysales POS may, at its sole option and expense, and as a complete remedy to Customer, either (a) substitute equivalent non-infringing software for the infringing item; (b) modify the infringing item so that it no longer infringes but remains functionally equivalent; or (c) obtain for Customer the right to continue using such item. If mysales POS deems none of the foregoing are commercially practicable, terminate the license granted herein with respect to the Service and grant Customer a pro-rated credit of the unused portion of the Subscription Fee paid with respect the Service. If the foregoing options are not available on commercially reasonable terms and conditions with respect to a Service Deliverable, mysales POS will refund to Customer the fees paid for such Service Deliverable less a credit for use based on straight line depreciation applied on a quarterly basis over five years from the date of initial delivery of the Service Deliverable.

12.4 Claims Related to Customer Data. Customer agrees that Customer shall indemnify, defend, and hold mysales POS harmless from and against all claims, damages, or other liabilities asserted by or payable to a third party arising out of or in connection with Customer Data (each, a “Customer Data Claim”). In order to seek or receive indemnification pursuant to the provisions of this Section 12.4 (i) mysales POS will promptly notify Customer in writing after receiving notice of any Customer Data Claim; (ii) Customer shall have the sole control of the defense of any action on such Customer Data Claim and all negotiations for its settlement or compromise; and (iii) mysales POS shall cooperate reasonably with Customer in the defense, settlement, or compromise of such Customer Data Claim at Customer’s expense. Customer shall not be responsible for the expenses, including attorney’s fees, of mysales POS incurred after Customer assumes defense of a Customer Data Claim, but mysales POS may participate therein and retain counsel at its own expense. Customer will not be responsible for any settlement or compromise of any Customer Data Claim made by mysales POS without Customer’s written consent. Customer will not consent to the entry of any judgment or enter into any settlement or compromise affecting mysales POS, to the extent that the judgment, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of mysales POS, and/or otherwise involves more than the payment of money by Customer, without the prior written consent of mysales POS.

12.5 Mutual Indemnities. Each Party hereby agrees to indemnify and hold harmless the other together with its officers, directors, employees, agents, and Affiliates from and against any and all third party claims, actions, demands, liabilities, penalties, fees, costs, or expenses, including reasonable attorneys’ fees, arising out of or in connection with the indemnifying Party’s (i) breach of its obligations set forth in Section 8; or (ii) gross negligence or willful misconduct.

13. Confidential Information.

13.1 Non-Disclosure Obligation. All Confidential Information will be maintained in confidence by the Recipient using at least the same degree of care as the Recipient uses to protect its own Confidential Information, but in no event less than a reasonable degree of care, and will not be disclosed to a third party or used for any purposes except as set forth in this Agreement. The obligations described in this Section 13.1 will not apply to any Confidential Information that:

a. is known by the Recipient at the time of receipt, and not through a prior disclosure by the Discloser, as documented by the Recipient’s business records;

b. is known to the public before its receipt from the Discloser, or thereafter becomes known to the public through no breach of this Agreement by the Recipient;

c. is subsequently disclosed to the Recipient by a third party who is not under an obligation of confidentiality to the Discloser; or

d. is developed by the Recipient independently of Confidential Information received from the Discloser, as documented by the Recipient’s business records.

13.2 Certain Permitted Disclosures. Notwithstanding the obligations of confidentiality and non-use set forth in Section 13.1, the Recipient may use and disclose Confidential Information as may be reasonably required by it in order for the Recipient to perform its obligations and to exercise its rights under this Agreement. The Recipient may disclose Confidential Information: (a) to its employees, directors, agents, consultants, advisors, or other third parties for the performance of its obligations and exercise of its rights hereunder, provided such entities are under an obligation of confidentiality with respect to such information that is no less stringent than those of this Section 13; and (b) to the extent necessary to comply with a court order, or as otherwise required by law or by a regulatory agency or government body, provided that the Recipient shall first give notice to the Discloser (so long as such notice is not prohibited by law) and assist the Discloser, at the Discloser’s expense, to block such disclosure and/or obtain a protective order to protect the confidentiality of such information. If the Recipient is nevertheless required to make such disclosure, the Recipient agrees to disclose only that portion of the Confidential Information that it is legally required to disclose, provided, however, the Recipient shall continue to be bound by the confidentiality and non-use provisions of Section 13.1 with respect to any Confidential Information disclosed by the Recipient pursuant to this Section 13.2. The Recipient shall immediately notify the Discloser of any actual or suspected unauthorized disclosure of Confidential Information.

13.3 Injunctive Relief. The Parties agree that a breach or threatened breach of this Section 13 would result in irreparable harm to the non-breaching Party, which breach would be inadequately compensated by money damages. Accordingly, the non-breaching Party may, in addition to any other legal remedies that may be available, seek injunctive relief, including without limitation preliminary injunctive relief, prohibiting or enjoining any such actual or threatened breach of this Section 13. The Parties agree that the non-breaching Party will not be required to post a bond in seeking such injunctive relief.

14. General Provisions.

14.1 Force Majeure. With the exception of payment obligations, neither Party shall be liable to the other for any loss or damage resulting from any delay or failure to perform its obligations hereunder, in any respect, if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond its control. Such events, occurrences, or causes include, without limitation, acts of God, strikes, lockouts, inability to secure materials and transportation facilities, riots, acts of war, epidemics or pandemics, terrorist acts, governmental actions, floods, earthquakes, natural disasters, fires, and explosions.

14.2 Affiliates. Any Affiliate of Customer may license products and services from mysales POS, or an Affiliate of mysales POS, subject to the terms and conditions of this Agreement; further provided, that such license shall be set forth in a separate Order Form between mysales POS, or its applicable Affiliate, and the applicable Affiliate of Customer. For the avoidance of doubt, Customer may not transfer its licenses to the Service issued under this Agreement to any Affiliate of Customer without the prior express written consent of mysales POS or its applicable Affiliate.

14.3 Assignment. This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either Party may assign its rights and obligations under this Agreement, in whole but not in part, without the other Party’s permission, to an Affiliate or in connection with any merger, consolidation, sale of all or substantially all of such assigning Party’s assets, or any other similar transaction; provided that the assignee: (i) is not a direct competitor of the non-assigning Party; (ii) provides prompt written notice of such assignment to the non-assigning Party, including any updates to the Notices provision below; (iii) is capable of fully performing the obligations of the assignor under this Agreement; and (iv) agrees to be bound by the terms and conditions of this Agreement. Any purported transfer or assignment in violation of this Section 14.3 shall be null and void and of no force and effect.

14.4 Successors. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

14.5 Notices. All notices given hereunder shall be in writing, and shall be deemed to be duly given if delivered by any of the following methods: (i) by personal delivery; (ii) by electronic mail or facsimile, with a confirmation copy sent by first class mail; (iii) by registered or certified mail, postage prepaid, return receipt requested; or (iv) by a nationally recognized express courier. A notice sent by personal delivery, registered or certified mail, or express courier shall be deemed given on the date of receipt or refusal of receipt. A notice sent by electronic mail or facsimile shall be deemed given on the date of electronic confirmation of receipt. Notices shall be sent to the respective addresses of each Party as set forth in the applicable Order Form.

14.6 Prevailing Party. In any litigation, arbitration, or other proceeding arising out of or related to this Agreement, the prevailing Party shall be entitled to receive its reasonable attorneys’ fees, and its reasonable costs and expenses. Note: This Section 14.6 shall be deemed to be intentionally omitted with respect to any Order Form governed by the laws of the United Kingdom or Germany.

14.7 Severability. If any provision herein is held invalid or unenforceable by a court of competent jurisdiction, then such provision shall, to the extent of such invalidity or unenforceability, be severed. All other provisions shall continue in full force and effect and shall be construed so as to best effectuate the intention of the Parties in executing it.

14.8 Federal Acquisition Regulations. The Service licensed under this Agreement is Commercial Computer Software under United States Federal Government Acquisition Regulations and agency supplements thereto. The Service is provided to the federal government and its agencies only under the Restricted Rights Provision of the Federal Acquisition Regulations applicable to commercial software developed at private expense and not in the public domain. The use, duplication, or disclosure by the government is subject to restrictions as set forth in subdivision (c) (1) (ii) of the Rights in Technical Data and Computer Software at DFAR 252 227-7013. Unless exempt, Customer and mysales POS shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status, or disability. If applicable, the Customer and mysales POS shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights. Note: This Section 14.8 shall be deemed to be intentionally omitted with respect to any Order Form that is not governed by the laws of the United States.

14.9 No Third Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the Parties and is not intended to convey any rights or benefits to any third parties, nor will this Agreement be interpreted to convey any benefits or rights to any person except the Parties.

14.10 Governing Law and Venue. As specified in the applicable Order Form.

14.11 Waiver. The failure or delay by either Party in exercising any right or remedy hereunder shall not operate as a waiver of any such right or remedy. Waiver by either Party of any default shall not waive any prior, concurrent, or subsequent defaults by the other Party.

14.12 Counterparts, Electronic Signatures. This Agreement may be executed in counterpart(s), all of which shall be original, signed documents, and which together shall constitute a single agreement. In addition, the Parties expressly agree to the use of electronic signatures to execute this Agreement, any Order Form, and/or any amendment to the foregoing.

14.13 Publicity. mysales POS shall not use Customer’s name or logo in any list or other promotional materials (including, without limitation, online or print-based quotes, case studies, and video testimonials) without the advance authorization from Customer, which will not be unreasonably delayed, conditioned, or withheld. Except as set forth above, there shall be no public announcement of this Agreement or the relationship between the Parties without mutual review and approval by both Parties, except as part of required governmental filings, SEC filings, quarterly earnings announcements, and/or financial presentations.

14.14 Headings. The descriptive headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. Each of the recitals set forth at the beginning of this Agreement is incorporated into this Agreement and is binding upon the Parties.

14.15 Relationship of the Parties. The relationship of mysales POS and Customer established by this Agreement is of licensor and licensee, each to constitute an independent contractor. Nothing in this Agreement shall be construed to give either Party the power to direct or control the daily activities of the other Party, or to constitute the Parties as principal and agent, employer and employee, franchisor and franchisee, partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that, except as specifically provided in this Agreement, each Party does not grant the other Party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of it, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of it, or to transfer, release, or waive any right, title, or interest of it.

14.16 Entire Agreement; Amendment. This Agreement and any and all Order Forms issued hereunder constitute the entire understanding and agreement between the Parties with respect to the subject matter thereof and supersede all prior and contemporaneous proposals, agreements, and/or nondisclosure agreements, as well as representations between them, whether written or oral. In the event of any conflict between the provisions of this Agreement and any Order Form(s) issued hereunder, the Order Form(s) shall govern, provided, however, that any proposed amendment to any specific provision of these General Terms and Conditions, whether by Order Form or other written instrument, shall only be effective to modify such provision if it identifies the provision by its section reference and is signed by an authorized representative of Customer and a representative of mysales POS at the Senior Manager, Contracts & Revenue, level or higher, or such person’s designee. Any terms or conditions contained in any Customer purchase orders or other Customer documents shall be void and of no force or effect, even if such document is executed by both Parties after the Effective Date. Notwithstanding the foregoing, Customer may change its bill to and/or ship to address upon written notice to mysales POS.

END OF AGREEMENT