StoreReport Term and Conditions

Capitalized words have the meanings stated in Section 1.0 (DEFINITIONS).

1.0 DEFINITIONS.

1.1 “Documentation” means all materials, including drawings, diagrams, specifications, documentation, product descriptions, training manuals and user manuals that StoreReport provides (either online or hard copy) to assist and define Customer’s use of the Services. 

1.2 “Plans” means the monies due from Customer to StoreReport as consideration for the Services and licenses on StoreReport website or app. 

1.3 “Intellectual Property” means all trade secrets, patents and patent applications, trademarks, service marks, trade names, copyrights and all other intellectual property and proprietary rights whether registered or unregistered.

1.4 “License” means any word, symbol or device, or any combination, used or intended to be used by a party to identify and distinguish the party’s or its third party licensor’s products or services from the products or services of others, including without limitation trade names, trademarks, service marks and logos. “Customer Marks” refer to any Marks of Customer and includes third party marks Customer may provide to StoreReport or that are incorporated in Product Information. “StoreReport Marks” refers to Marks of StoreReport.

1.5 “Representatives” collectively means the affiliates, directors, officers, employees, permitted assigns and agents of a party.

1.6 “Services” means the services to be provided by StoreReport including without limitation any licensed software, code, or functionality, including but not limited to customer’s access to the StoreReport Platform. Access to Services is available at http:storereport.us/.

1.7 “Technology” means, collectively, the StoreReport Platform and Services, Documentation, functionality, URLs and integrations that enable Customer access to the StoreReport Platform, analytics, transaction information, all content in, and work product resulting from, the Services, and any software or technology incorporated in or made available by StoreReport through the StoreReport Platform or Services, expressly excluding Product Information and Customer Marks unless otherwise stated in a writing signed by the parties.

1.8 “Term” means the period of the Agreement stated in the Customer Agreement, and includes the Initial Term and all Renewal Terms as defined in the Customer Agreement.

1.9 “StoreReport” is name of software app package available to install to all Skubana users developed by Data Solutions Labs LLC.

2.0 LICENSE/TERMS OF SERVICE/ RESTRICTIONS.

2.1 Services. StoreReport agrees to use commercially reasonable efforts to provide the Services to Customer. StoreReport may subcontract the performance of the Services and subcontractors shall be included in the term “StoreReport” and shall not be considered third parties under the Agreement. StoreReport remains responsible to Customer for the actions of StoreReport’s subcontractors.

2.2 Email Support. StoreReport shall provide Customer with support services via Support ticketing system only, to be rendered only during the hours of 9 am to 5 pm Eastern Time. Any additional support services requested by the Customer, including telephonic support services, shall be subject to additional fees, and shall only be provided upon written agreement signed by the parties.

2.3 Intellectual Property Ownership. Customer owns its Product Information and Customer Marks. StoreReport (or its licensors) exclusively owns all right, title and interest in and to the Technology. Customer hereby assigns to StoreReport all Intellectual Property rights in the Technology that Customer may have acquired by law or otherwise. Customer shall not challenge, directly or indirectly, any of StoreReport’s (or its licensors’) rights stated in the Agreement.

2.4 Restrictions. Except as expressly stated in the Agreement, no licenses or rights are granted by StoreReport and nothing in the Agreement implies any license to Customer in the Technology. No rights to any source code are granted and Customer shall not itself, or through any third party, reverse engineer, disassemble, decompile or otherwise attempt to derive source code or design information regarding any Technology and is not permitted to make any modifications to Technology. Customer agrees: (a) all Customer product listings and transactions must be routed through the StoreReport Platform and/or Services; (b) any transaction that Customer concludes through the StoreReport Platform and/or Services, whether or not it is processed by the StoreReport Platform and/or Services, is subject to inclusion in the calculation of GMV, notwithstanding anything in the Agreement to the contrary; and (c) Customer is obligated to record the transactions in the StoreReport Platform or notify StoreReport of any transactions not recorded in the StoreReport Platform for any reason whatsoever. Customer may not remove or obscure any copyright, patent, trademark, trade secret or similar proprietary notice affixed to any Technology. Customer agrees that the underlying structure, sequence, organization and source code of the Technology are valuable trade secrets of StoreReport and shall remain strictly confidential. Customer may not use, and may not allow others to use, the Technology for any purpose not expressly detailed in the Agreement. Customer may not use the Technology for the purpose of bringing an Intellectual Property claim against StoreReport or for the purpose of developing a product or service, or helping another develop a product or service, that is competitive with the Technology. StoreReport has the right to audit Customer’s compliance with this Section.

2.5 StoreReport Platform Features and Functionality. StoreReport may access, monitor, remove content within, or disable Customer access to the StoreReport Platform or Services if (a) StoreReport, in its sole discretion, believes it may incur liability because of Customer Product Information, (b) StoreReport is required to do so by law, government order or other legal process or (c) to enforce the terms of the Agreement. In its sole discretion, StoreReport may change any design, layout, content, features or functions of the Technology without notice. If the changes reduce functionality and materially adversely impact Customer’s use of the StoreReport Platform of Services, then Customer’s sole and exclusive remedy is to terminate the Agreement by providing at least thirty (30) days prior written notice. StoreReport may temporarily suspend the StoreReport Platform, or any Services or both, for maintenance from time to time. StoreReport will give advance notice of maintenance, unless, in StoreReport’s sole discretion, it is impractical to do so.

2.6 Other Sites and Services. StoreReport is not responsible for content supplied by third parties, or for actions Customer takes in reliance on that content. StoreReport has no liability to Customer for failures based on services not provided by StoreReport.

2.7 Documentation Licenses. StoreReport grants Customer the non-exclusive right to use the Documentation solely in conjunction with Customer’s use of the Services. StoreReport and any applicable third parties reserve all rights in their respective Documentation.

3.0 CUSTOMER OBLIGATIONS.

3.1 Privacy/Security. Customer must have and enforce a privacy policy that complies with all applicable laws, rules and regulations including without limitation the treatment of all personal information in accordance with European and non-U.S. governing authorities to the extent that Customer sells into international marketplaces or otherwise is subject to the laws of those authorities. Customer must secure buyer information and not allow buyer information to be disclosed except in accordance with Customer’s privacy policy. Customer may not retain personal information for any period longer than necessary to complete the applicable transaction, and Customer must establish security processes to protect personal information in accordance with applicable law and at least as restrictive as industry standards, but no less than reasonable care. Customer acknowledges that Customer’s information and Customer’s buyers’ information (personal or otherwise) may be transmitted to the United States or European jurisdictions as a result of StoreReport providing the Services. Customer must ensure that Customer’s privacy statement discloses the use of “cookies” or similar technologies that may be used by Customer or a third party (including StoreReport) to track browsing and purchasing habits. Customer must comply with all applicable laws concerning “cookie” disclosures to consumers, including any opt in and opt out requirements. In accessing the StoreReport Platform as permitted under the Agreement, Customer must report any security breaches promptly to StoreReport. Customer is responsible for any breaches of security that occur through Customer’s access or login credentials of the StoreReport Platform.

3.4 Compliance with Laws. Customer covenants to StoreReport that at all times during the Term it complies with all applicable laws, rules and regulations and codes as updated from time to time related to Customer’s performance of its obligations under the Agreement and activities that Customer undertakes in connection with its use of the StoreReport Services including without limitation those governing the online sale of goods and services, those governing anti-bribery and anti-corruption, including without limitation the U.K. Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), respectively, and U.S. export controls and trade sanctions and economic embargoes.

3.5 Spam/Unsolicited Email/Prohibited Activities. Customer is prohibited from using for, or involving the StoreReport Platform or any Service with, spamming or sending any unsolicited emails or information to any person or entity. For emails that do not violate the Agreement that are sent through the StoreReport Platform or any Service, Customer must provide a way for buyers and consumers to request that Customer stop sending emails that a buyer or consumer previously opted to receive. Customer covenants to StoreReport that Customer will not engage in the activities prohibited in this Section or any other portion of the Agreement. In addition to all remedies available at law or in equity, StoreReport may immediately terminate or suspend the Agreement or the Services or both if Customer uses the Services for purposes prohibited in this Section or any other portion of the Agreement.

3.7 Customer Assistance. Customer shall use commercially reasonable efforts to perform all acts and to make, execute and deliver all documents, data, and access credentials that Customer needs to perform or provide in order for StoreReport to provide the Services.

4.0 PLANS

4.1 PLAN PAYMENT. Except as otherwise agreed to in writing by the parties, StoreReport shall process payments as follows: the Plan fees for upfront payments will be processed on or around the Effective Date; and the Plan fees for recurring or periodic payments will be processed on or around fifteen (15) days after the invoice date. If the automatic payment processing fails, StoreReport may demand payment and disable Customer as described above. Customer is responsible for: (a) identifying to StoreReport its main tax location where Customer will access the StoreReport Platform or Service, and (b) remitting all applicable taxes to the appropriate local, state, national and international authorities. Customer shall reimburse StoreReport for any taxes, interest and penalties levied against StoreReport if Customer fails to remit. Where obligated by applicable law, StoreReport will, for the benefit of Customer, collect all applicable local, state, national or international taxes that are owed as a result of Customer’s use of the StoreReport Platform or Service, and remit collected taxes to the appropriate taxing authority based on Customer’s main billing address of record.

4.2 PLAN - CHANGES. In its sole discretion, StoreReport reserves the right to raise or modify its Plans, or change its Plan terms in any manner, to be effective at the start of a Renewal Term. If Customer does not wish to renew the Service under the new Planterms, Customer may terminate at the end of the then-current Term in accordance with Section 6.1 of the Agreement. Email communication is sufficient notice for the Fee changes stated in this Section.

5. LICENSE

5.1 LICENSES. Each party hereby grants to the other a limited, non-exclusive, non-assignable, non-transferable license, without right to sublicense, to use its Marks in connection with the Services. Marks must be reproduced as exact copies and all use of the Marks is subject to the licensor’s usage guidelines as revised from time to time and available from the licensor. The licensee of the Marks acknowledges and agrees that all right, title and interest in the licensor’s Marks is exclusively owned by the licensor, its licensors, or a third party and that all use of licensor Marks inures to the benefit of licensor. Licensee shall not assert any Intellectual Property rights in the licensor Marks or in any element, derivation, adaptation, variation or name thereof. Licensee shall not contest the validity of, or licensor’s ownership of, any of the licensor Marks. Licensee shall not, in any jurisdiction, adopt, use, or register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name, any licensor Marks, or any word, symbol or device, or any combination confusingly similar to any of the licensor Marks. Licensee may not alter licensor Marks in any manner, or use licensor Marks in any manner that may dilute, diminish, or otherwise damage licensor’s rights and goodwill in its Marks. Licensee may not use licensor Marks in any manner that implies sponsorship or endorsement by licensor of licensee services and products other than those expressly authorized by licensor.

6.0 TERM AND TERMINATION.

6.1 Term. See Customer Agreement.

6.2 Termination. The Agreement may be terminated other than at the end of a Term upon written notice to the other party as follows: (a) by a party if the other party has materially breached the Agreement and the breaching party has not cured the breach within thirty (30) days after written notice of the breach (provided, however, that where the breaching party is diligently pursuing the cure but cannot cure within thirty (30) days, the foregoing will not apply), (b) by StoreReport in the event of a payment default, (c) by StoreReport if it is party to a merger, acquisition or similar transaction in which the other party to the transaction requires termination of similar agreements, (d) as may be stated in a writing signed by the parties, (e) by StoreReport for Customer’s breach of the license, restrictions and limitations found in Section 2.0 or Exhibit A, or for breach of Section 3.0, (f) by StoreReport, upon at least thirty (30) days prior written notice without cause or liability, and (g) by a party, to the extent permitted by law, if the other party makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject to a petition in bankruptcy not dismissed in sixty (60) days, or has wound up or liquidated; if any of the above events occurs, the affected party shall immediately notify the other party. Customer’s continued use of the StoreReport Platform beyond the termination date shall be pursuant to the terms and conditions of the Agreement.

6.3 Effect of Expiration or Termination. Upon expiration or termination of the Agreement, the licenses granted under the Agreement terminate immediately. The following Sections survive its expiration or termination: 1.0, 2.3, 4.0 (solely to the extent that Fees are owed), 6.3 and 7.0 through 11.0 and any other provision or partial provision which by its nature would reasonably survive the termination of the Agreement.

7.0 DISCLAIMER OF WARRANTIES BY STOREREPORT. STOREREPORT MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE TECHNOLOGY OR STOREREPORT MARKS. STOREREPORT DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE TECHNOLOGY AND STOREREPORT MARKS INCLUDING WITHOUT LIMITATION ANY WARRANTIES AGAINST INFRINGEMENT AND IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT THE TECHNOLOGY WILL OPERATE UNINTERRUPTED, DEFECT-FREE OR ERROR-FREE. STOREREPORT MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE TECHNOLOGY’S LOCALIZATION TO A PARTICULAR MARKET INCLUDING WITHOUT LIMITATION LOCAL LANGUAGE, LOCAL SUPPORT OF TAXES, PAYMENT OR SHIPPING CARRIERS. STOREREPORT MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH ANY MODULE OR FROM ANY NETWORK SITE, FLEX FEED DESTINATION, OR THIRD PARTY INTERFACE.

8.0 INDEMNIFICATION.

8.1 Customer’s Indemnification. Subject to Section 8.3 (Requirements of Indemnification), Customer indemnifies, defends and holds harmless StoreReport and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees), of whatever type or nature incurred by StoreReport by reason of a third party claim or assertion brought against StoreReport and its Representatives arising out of or related to: (a) Customer’s failure to comply with or breach of Sections 2.0, 3.0 and 5.0 of the Agreement, (b) Customer products listed, supplied or sold using the Services including without limitation Intellectual Property infringement claims and product liability claims, Customer Marks, ad content, and Product Information, (c) any gross negligence or willful misconduct of Customer or its employees or agents and (d) misappropriation or fraud related to buyer information (personal or otherwise) or buyer funds.

8.2 StoreReport Indemnification. Subject to Section 8.3 (Requirements of Indemnification) and Section 9.0 (Liability Limitation), StoreReport indemnifies, defends and holds harmless Customer and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) of whatever type or nature incurred by Customer by reason of a third party claim or assertion brought against Customer and its Representatives, arising out of or related to: (a) Customer’s authorized use of the StoreReport Platform infringing on the Intellectual Property rights of a third party in the territory in which Services are provided, (b) Customer’s authorized use of StoreReport Marks (not a third party licensor’s marks) infringe upon a U.S. trademark and (c) any gross negligence or willful misconduct of StoreReport or its employees or agents in the course of providing the Services.

8.3 Requirements of Indemnification. In order for the indemnification obligations of the indemnifying parties to apply, the indemnified parties must promptly provide the indemnifying party with notice in writing of any claim, promptly tender the control of the defense and settlement of any claim to the indemnifying party (at the indemnifying party’s expense and with indemnifying party’s choice of counsel), and cooperate fully with the indemnifying party (at the indemnifying party’s request and expense) in defending or settling the claim including without limitation providing any information or materials necessary for the defense. The indemnifying party shall only be liable to the indemnified party for the amount of damages as determined in a final, non-appealable order of a court of competent jurisdiction or paid by way of settlement, but the indemnifying party shall have no liability for any settlement made by an indemnified party without the indemnifying party’s prior written consent, which may be withheld in the indemnifying party’s sole discretion. The indemnifying party will not enter into any settlement or compromise of any claim without the indemnified party’s prior consent if the settlement would require admission of fault or payment by the indemnified party.

8.4 Exclusions and Infringement Remedies. Upon StoreReport’s sole determination that the use of the StoreReport Platform infringes upon the rights of any third party, StoreReport may, at its sole discretion and own cost and expense, either: (a) procure the right for Customer to continue to license the StoreReport Platform, (b) modify the StoreReport Platform in such a way that the use thereof does not infringe on the rights of third parties, or (c) terminate the Agreement by notice to Customer and refund any Fees paid in advance for the license to use the StoreReport Platform remaining (on a pro rata basis) after the termination date, if any. StoreReport shall have no liability or obligation with respect to any infringement claim if the infringement is caused by: (i) a modification made by Customer to an item, software, or Service supplied by StoreReport or a modification made by StoreReport at Customer’s request, (ii) use of the StoreReport Platform in an application or environment other than as intended under the Agreement, (iii) Customer’s unauthorized use of the StoreReport Platform, (iv) StoreReport acting in accordance with Customer’s specifications or guidelines, or (v) the combination, operation or use of the StoreReport Platform with other third party product(s) not supplied by StoreReport. Customer indemnifies, defends and holds harmless StoreReport and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including without limitation reasonable attorney’s fees) arising out of or related to any of the circumstances stated in this Section. The remedies stated in this Section 8.0 are the SOLE AND EXCLUSIVE remedies of Customer for the infringement of third party Intellectual Property rights by StoreReport.

9.0 LIABILITY LIMITATION. STOREREPORT IS NOT LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR THE FAILURE OF A PERSON TO ENTER INTO A TRANSACTION BY MEANS OF CUSTOMER’S USE OF THE STOREREPORT PLATFORM, ANY MODULE (OR OTHER SOFTWARE LICENSED) OR THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL SELECTION OF PARTIES WITH WHOM CUSTOMER DOES BUSINESS, AND FOR TERMS AND CONDITIONS OF CUSTOMER’S AGREEMENTS WITH THOSE PARTIES AND WITH NETWORK SITES AND FLEX FEED DESTINATIONS. STOREREPORT HAS NO RESPONSIBILITY FOR THE QUALITY OR AVAILABILITY OF GOODS OR SERVICES PROVIDED BY CUSTOMER, ANY BUYER’S ABILITY TO PAY, ANY THIRD PARTY’S COMPLIANCE WITH THE TERMS OF A TRANSACTION, OR FOR ANY INJURY, LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED BY THE GOODS OR SERVICES OBTAINED BY A BUYER OR SOLD BY CUSTOMER THROUGH USE OF THE SERVICES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THE AGREEMENT OR ANY APPLICABLE WRITING SIGNED BY THE PARTIES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. STOREREPORT’S AGGREGATE LIABILITY UNDER THE AGREEMENT OR APPLICABLE WRITING SIGNED BY THE PARTIES WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THE AGREEMENT OR ANY APPLICABLE WRITING SIGNED BY THE PARTIES GIVING RISE TO THE CLAIM DURING THE TWELVE MONTH PERIOD IMMEDIATELY BEFORE THE DATE THE CLAIM AROSE. IF APPLICABLE LAW DOES NOT PERMIT THE DISCLAIMER OF CERTAIN DAMAGES RELATED TO A PARTICULAR CAUSE OF ACTION, THEN THIS LIMITATION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

10. Confidentiality

10.1 CONFIDENTIALITY. Confidential Information means any information directly or indirectly disclosed by one party to the other party, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or a similar designation. Information communicated orally is considered Confidential Information only if designated as Confidential Information upon disclosure and confirmed by the discloser in writing no later than twenty (20) days thereafter. The StoreReport Platform and the related Documentation and visual interfaces, buyer information, pricing, any negotiated terms of the Agreement and market strategies, are StoreReport’s Confidential Information without need to mark or designate the information as confidential or proprietary. A party receiving Confidential Information shall not disclose it to any third party, provided, however, that StoreReport may share Customer’s Confidential Information with StoreReport’s related entities, agents, and third parties for the purpose of carrying out its rights and responsibilities under the Agreement. Each party shall keep the other party’s Confidential Information confidential using the same degree of care it uses to protect its own confidential information, but no less than reasonable care. Confidential Information does not include any information that: (a) is or becomes publicly available through no action or inaction of the receiving party, (b) is already in the receiving party’s possession at the time of disclosure and is not subject to confidentiality obligations, (c) the receiving party obtains from a third party without a breach of the third party’s obligations of confidentiality, (d) the receiving party independently develops without use of the disclosing party’s Confidential Information, or (e) a party agrees in writing is free of restrictions. If either party receives a subpoena or other validly issued judicial process requesting, or is required by a government agency to disclose the other party’s Confidential Information, the receiving party shall notify the disclosing party, unless doing so would violate the subpoena or process, and, upon the disclosing party’s request shall reasonably cooperate to seek confidential treatment or to obtain an appropriate protective order to preserve the confidentiality of the Confidential Information at the disclosing party’s expense. All confidentiality obligations survive the Term for three (3) years. The parties agree that breach of this confidentiality obligation will cause irreparable damage that cannot be fully remedied through the payment of monetary damages and that the injured party has the right to obtain injunctive relief for any such breach or threatened breach, in addition to any other remedies available at law or in equity. For the avoidance of doubt, the terms offered specifically by StoreReport to Customer, including but not necessarily limited to pricing and durational terms, are the Confidential Information of StoreReport and may not be disclosed by Customer except in accordance with this provision.

11.0 GENERAL PROVISIONS.

11.1 General. The parties acknowledge and agree that the Agreement does not in any way limit either party’s right at any time to independently develop, market, license, or otherwise distribute, any product in any manner that it chooses. Customer may use the StoreReport logos and pre-approved copy to carry out its rights and responsibilities under the Agreement, including references to Customer’s relationship with StoreReport by posting the logo and approved copy to Customer’s corporate website. Requests to StoreReport shall be submitted in accordance with the notice provision herein, and and StoreReport shall respond to such requests within five (5) business days. Either party may make disclosures as required by law as reasonably advised by its legal counsel without the consent of the other party and in such event, the disclosing party will provide at least five (5) business days prior written notice of such disclosure unless prohibited by law. Neither party may assign the Agreement without the other party’s prior written consent, except that: (a) either party may assign the Agreement without the other’s consent in the case of a reorganization, merger, consolidation, or sale of all or substantially all of its assets, and (b) StoreReport may assign the Agreement without Customer’s consent to StoreReport’s affiliates or subsidiaries. The parties are independent contractors. The Agreement and invoices arising under it constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any and all prior or collateral negotiations, proposals, agreements and understandings, whether oral or written, relating to the subject matter of the Agreement. Any representation, warranty, course of dealing or trade usage not expressly contained or reference in the Agreement shall not be binding. Except as otherwise stated in the Agreement, any amendments to the Agreement must be in writing and executed by the parties. Upon acceptance by StoreReport, these changes may result in additional Fees, which are calculated as of the date of the change, invoiced upon receipt of notice from Customer, and payable in accordance with Section 4.0 (Payment). The changes, as memorialized by an invoice, shall become part of the Agreement. If any provision of the Agreement is held or made invalid or unenforceable for any reason, the invalidity will not affect the remainder of the Agreement and the severed provision shall be interpreted to be consistent with the Agreement. The failure of either party at any time to require performance of any provision shall not waive or affect the right at a later time to enforce any provision. Section headings are for reference purposes only and in no way affect the meaning or interpretation of the Agreement. All Exhibits referenced in the Agreement are incorporated into the Agreement by reference. To the extent the terms of a subsequent writing signed by the parties conflict with the terms of the Agreement, the terms of the subsequent writing control. Each party represents and warrants to the other party that it is NOT relying on any promises, guarantees and/or assurances of the other party that are NOT otherwise expressly contained in the Agreement.

11.2 Notice. Any notice required or permitted by the Agreement shall be in writing and deemed delivered if delivered (a) by personal delivery when delivered, (b) by overnight courier upon written verification of receipt, (c) by telecopy or facsimile transmission when confirmed by telecopy or facsimile transmission report, (d) by certified or registered mail, return receipt requested, upon verification of receipt or (e) by email notification as long as “NOTICE” or “LEGAL NOTICE” appears in the subject line of the email and the email is set up to show a delivery confirmation. Notices must be sent to the contacts and address in the Agreement, or any new address provided by the permitted notice methods. Customer may not claim, and hereby waives, any defense of lack of sufficient notice for Customer’s failure to provide StoreReport its current contact information.

11.3 Governing Law and Dispute Resolution. The parties agree to treat the subject matter and existence of a dispute confidential and to resolve all disputes with respect to the Agreement promptly by negotiating in good faith. If a dispute is not resolved within fifteen (15) days of complaint, either party may request negotiation between executives with authority to resolve the matter. If the matter is not resolved within thirty (30) days of a party’s request for negotiation, either party may initiate judicial proceedings (these time limitations do not apply if a statute of limitations will expire or if the party is seeking injunctive relief). The laws of the state of New York, without regard to its conflicts of laws provisions, govern the Agreement. Each party irrevocably and unconditionally consents and submits to the jurisdiction of the applicable courts located in New York, New York, for purposes of any action, suit or proceeding arising out of or relating to the Agreement and agrees that service of any process, summons, notice or document by registered mail or the equivalent to the address stated in the Agreement is effective service of process for any action, suit or proceeding brought against the party under the Agreement.

11.4 Force Majeure. Neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under the Agreement other than payment if, and to the extent that, the failure or delay is caused by events beyond its reasonable control including without limitation acts of the public enemy or governmental body in its sovereign or contractual capacity, war, fire, floods, strikes, epidemics, quarantine restrictions, unavailability of the Internet, civil unrest or riots, acts of terrorism, transportation delays, freight embargoes or unusually severe weather. The affected party shall use commercially reasonable efforts to avoid or remove the causes of non-performance or delay, and shall continue performance whenever the causes are removed. If any non-performance or delay continues for more than thirty (30) days, the Agreement may be terminated by the unaffected party without liability upon written notice to the affected party.