Master Service Terms

Last updated November 30, 2020

These Master Service Terms (including all exhibits and addenda hereto, these “ Service Terms ”) are entered into by and between ARS Advertising, LLC, a Delaware limited liability company, d/b/a Aisle Rocket Studios (“ Aisle Rocket ”), and the client that enters into a Statement of Work (“ Statement of Work ” and, together with these Service Terms, this “ Agreement ”) referencing or attaching these Service Terms (“ Client ” and, together with Aisle Rocket, the “ Parties ”). These Service Terms govern and are incorporated into the Statement of Work, and by signing the Statement of Work, Client agrees to these Service Terms.

Aisle Rocket may amend these Service Terms in its sole discretion from time to time. The most recent version of these Service Terms will be available at https://aislerocket.com/msaterms. Client agrees that posting updates or amendments to these Service Terms constitutes adequate notice to inform Client of any such updates or amendments, and Client further agrees to be bound by any such updates or amendments upon such notice.

In consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Scope of Services.

1.1 Scope of Services. Subject to the terms and conditions contained in this Agreement, Aisle Rocket agrees to provide Client with certain services as described in the Statement of Work (“ Services ”) , which may include marketing, advertising, data management and/or analytics services and/or content, creative, website and/or application development. The Statement of Work shall contain (a) a description of the Services and any deliverables to be provided under such Statement of Work; (b) the Fees (as defined below) and related payment terms for such Services; (c) the Initial Term of the Statement of Work; and/or (d) any other applicable terms. Any general descriptions or goals identified in the Statement of Work are for informational and alignment purposes only.

1.2 Changes; Statements of Work. Any change in the scope of Services shall be agreed to by the Parties, in writing, in an executed change order or additional Statement of Work. Aisle Rocket shall have no obligation to perform any Services in connection with any such change until the Parties have executed such change order or additional statement of work setting forth the change in Services, the applicable Fees, the applicable Initial Term, the schedule of performance and/or any other agreed terms. In the event of a conflict between these Service Terms and any Statement of Work, these Service Terms shall prevail except to the extent expressly set forth herein or the Statement of Work expressly amends or supersedes these Service Terms.

1.3 Client Responsibilities. The Client shall: (a) provide a single point of contact to Aisle Rocket, as specified in the Statement of Work, to coordinate the setup and implementation of the Client to receive the Services and the ongoing coordination between Client and Aisle Rocket; (b) cooperate with and respond to requests from Aisle Rocket in a timely and efficient manner; and (c) promptly provide Aisle Rocket all information about Client necessary to provide the Services hereunder and any other information as may be reasonably requested by Aisle Rocket from time to time.

2. Fees and Payment.

2.1 Fees. Except as otherwise specified in the Statement of Work, all Fees are quoted and payable in United States dollars, payable in accordance with this Section 2 and are non-refundable. “ Fees ” may include any technology fees, digital marketing campaign fees, IO fees, and any other fees set forth in the Statement of Work.

2.2 Expenses. Client shall reimburse Aisle Rocket for the reasonable expenses of its personnel and other expenses incurred in performance of the Services pre-approved by Client in writing performed at a location other than an Aisle Rocket location as reasonably necessary or at Client’s request.

2.3 Fee Changes. Aisle Rocket may change the Fees for Services at any time on at least thirty (30) days’ notice to Client; provided that any such increase (a) shall not occur more than once during any twelve (12) month period, and (b) shall not increase the Fees by more than five percent (5%).

2.4 Payments. Aisle Rocket will invoice Client for applicable Services as set forth in the Statement of Work. Client shall remit payment to Aisle Rocket under each invoice, in full and without deduction or setoff, within thirty (30) days of the date of such invoice (or otherwise as set forth in the Statement of Work). If Aisle Rocket has not received payment of Fees by the applicable due date, then Aisle Rocket may: (a) assess a late fee of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (b) condition future Services and statements of work on payment terms shorter than those specified herein. In the event of Client’s failure to pay any invoice more than sixty (60) days after the date of the invoice, Aisle Rocket may immediately suspend all or any portion of the Services until payment is made and/or immediately terminate the Statement of Work and/or any other statements of work between the Parties. In the event Client disputes a portion of an invoice, Client agrees to fully pay the undisputed portion and Aisle Rocket’s acceptance of such partial payment shall not waive any of its rights as to the remaining balances nor in any way constitute an accord and satisfaction.

2.5 Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “ Taxes ”). Client is responsible for paying all Taxes (except those based on Aisle Rocket’s income) associated with the Services purchased hereunder, and will pay, and indemnify and hold harmless Aisle Rocket from, any and all Taxes and costs associated with the collection or withholding thereof, including penalties and interest.

3. Proprietary Rights.

3.1 Aisle Rocket Intellectual Property and Data Ownership. As between the Parties, Aisle Rocket owns all right, title and interest in and to (a) the data, tools and resources it uses to provide the Services (other than Client Data (as defined below), if applicable), Aisle Rocket software and systems, and all modifications, improvements and derivatives of any of the foregoing, (b) all reports, analytics, insights, output and other work product produced in connection with providing the Services, and all ideas, concepts, know-how and techniques in connection therewith, and (c) all intellectual property rights in or to any of the foregoing (collectively, “ ARS Property ”). Aisle Rocket reserves all rights not expressly granted in this Agreement, and no licenses are granted by Aisle Rocket to Client under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. Except as expressly authorized in this Agreement in connection with the Services, Client will not reproduce, disassemble, decompile, decrypt, extract, reverse engineer, modify, sell, share, resell, use, or otherwise exploit any ARS Property, or otherwise attempt to derive any source data, code, algorithm, process or procedure contained within the ARS Property.

3.2 License. Aisle Rocket hereby grants to Client a non-exclusive right and license during the Term to use, solely for Client’s internal business purposes, the reports, analytics, and insights produced and provided by Aisle Rocket as specifically described in the Statement of Work.

3.3 No Exclusivity. Subject to Section 8 , this Agreement shall not prevent Aisle Rocket from providing to other clients of Aisle Rocket any services or data, regardless of any similarity to any services or data developed or provided under this Agreement. Aisle Rocket shall be free to use its general knowledge, skills, and experience, and any ideas, concepts, know-how and techniques used or developed in the course of providing the Services, for other clients and on other engagements. Aisle Rocket’s other clients shall have the right to use materials incorporating such ideas, concepts, know-how and techniques if and as granted by Aisle Rocket.

3.4 Client Data. To the extent Client provides Aisle Rocket with, or with access to, any of Client’s data in connection with the Services under this Agreement (“Client Data”), the additional terms and conditions set forth in Addendum A shall apply and are incorporated herein.

4. Representations and Warranties.

4.1 Mutual. In addition to the other representations and warranties set forth in this Agreement, each Party represents and warrants to the other Party that: (a) it is a duly formed entity (i.e., corporation or limited liability company) in good standing under the laws of the state of its incorporation or organization; (b) it is qualified to transact business in all states where the ownership of its properties or nature of its operations requires such qualification; (c) it has full power and authority to enter into and perform its obligations under this Agreement; and (d) the execution and delivery of this Agreement have been duly authorized.

4.2 By Aisle Rocket. Aisle Rocket represents and warrants to Client that Aisle Rocket shall perform the Services in a professional, workmanlike manner, in accordance with generally accepted industry standards.

4.3 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.2, THE SERVICES ARE PROVIDED “AS IS”, AISLE ROCKET MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND AISLE ROCKET SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, AISLE ROCKET DOES NOT MAKE ANY WARRANTIES THAT THE SERVICES ARE FREE FROM ANY BUGS, ERRORS OR OMISSIONS, AND CLIENT ACCEPTS THE ENTIRE RISK ARISING OUT OF CLIENT’S USE OF OR INABILITY TO USE THE SERVICES. FURTHER, AISLE ROCKET MAKES NO WARRANTIES IN CONNECTION WITH ANY THIRD-PARTY PLATFORMS, SERVICES, TOOLS OR DATA ACCESSED OR USED IN CONNECTION WITH THE SERVICES. THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

5. Indemnification; Insurance.

5.1 Indemnity Claims. Each Party will defend, indemnify and hold harmless the other Party, its Affiliates (as defined below), and its and their directors, officers and Representatives (as defined below) from and against any and all third-party claims, lawsuits, proceedings and investigations (collectively, “ Claims ”) and any and all damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) in connection with such Claims (collectively, “ Losses ”) arising out of or relating to: (a) the indemnifying Party’s breach of this Agreement or violation of applicable law; or (b) any act of gross negligence or willful misconduct by the indemnifying Party or any of its Representatives. Client shall further defend, indemnify and hold harmless Aisle Rocket, its Affiliates and its and their directors, officers and Representatives from and against any and all Claims and Losses arising out of or relating to: (i) any infringement, violation or misappropriation of a third party’s intellectual property or other proprietary rights in connection with Client’s use of the Services; or (ii) Aisle Rocket’s reliance upon or use of Client Data or instructions provided by Client. “ 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 (50%) of the voting interests of the subject entity. “ Representatives ” means employees, contractors, independent contractors and agents.

5.2 Procedure. A Party seeking indemnification under this Agreement (the “ Indemnified Party ”) shall promptly notify the other Party (the “ Indemnifying Party ”) when it becomes aware of any Claim, provided that any delay in providing such notice shall not relieve the Indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, it was prejudiced by the delay. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of such Claim at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense at its option and expense; provided that (a) the Indemnifying Party shall have the right to control the defense and all negotiations relative to the settlement of any such Claim, including without limitation selection of counsel; (b) no settlement imposing any affirmative or negative obligations on the part of the Indemnified Party may be made without the express written consent of the Indemnified Party (which may be withheld in the reasonable discretion of the Indemnified Party), including any settlement that includes (i) admission of liability or wrongdoing by the Indemnified Party, (ii) payment of any amounts not covered by the Indemnifying Party’s indemnity obligations, or (iii) actions that affect the Indemnified Party’s Intellectual Property Rights; and (c) in conducting such defense or settling such claim or action, the Indemnifying Party shall not disclose or use the Confidential Information of the Indemnified Party without the Indemnified Party’s prior written consent.

5.3 Insurance. During the Term, Client shall maintain in force, with insurance companies whose A.M. Best rating meets or exceeds A –VII, the following insurance policies to cover such liability, or alleged liability, that may arise under or in connection with this Agreement, which policies provide, at a minimum, the following coverages: (a) Workers Compensation insurance as required by all applicable statutes; (b) Commercial General Liability insurance, including coverage for bodily injury, property damage, personal and advertising injury and contractual liability, with a minimum limit of liability of no less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate; and (c) Professional Liability (Errors & Omissions), which must include network security and privacy injury liability coverage, insurance with a minimum single limit of five million dollars ($5,000,000).

6. Limitations of Liability.

6.1 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY, OR ANY OF ITS MEMBERS, MANAGERS, SHAREHOLDERS, DIRECTORS, OFFICERS, OR REPRESENTATIVES, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES, USERS OR ANY OTHER THIRD PARTY, FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF DATA OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CLIENT DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING SHALL NOT APPLY TO CLIENT’S LIABILITY IN CONNECTION WITH CLIENT’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.

6.2 Limitations of Liability. EXCEPT WITH RESPECT TO (A) LOSSES ATTRIBUTABLE TO A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATION HEREUNDER OR, WITH RESPECT TO CLIENT, CLIENT’S BREACH OF SECTION 3.1; AND/OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (I) THIRTY THOUSAND DOLLARS ($30,000) OR (II) THE AMOUNT PAID AND/OR OWED BY CLIENT TO AISLE ROCKET IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM UNDER THIS AGREEMENT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, AISLE ROCKET SHALL HAVE NO LIABILITY ARISING FROM ANY THIRD-PARTY PLATFORMS, SERVICES, TOOLS OR DATA ACCESSED OR USED IN CONNECTION WITH THE SERVICES.

6.3 Time Limit on Claims. REGARDLESS OF ANY STATUTE OR LAW THAT CONTAINS A LONGER STATUTE OF LIMITATIONS, ANY CLAIM OR CAUSE OF ACTION AGAINST EITHER PARTY ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES, OR WILL BE FOREVER BARRED.

7. Term and Termination.

7.1 Term of Agreement. The term of this Agreement commences on the SOW Effective Date (as defined in the SOW) and, unless earlier terminated in accordance herewith, continues for the duration set forth in the Statement of Work (“ Initial Term ”). Except as otherwise specified in an applicable Statement of Work, the Initial Term shall automatically renew for the rolling periods, each of the same duration as the Initial Term (each, a “ Renewal Term ” and collectively with the Initial Term, the “ Term ”), subject to any applicable increase in Fees in accordance with Section 2.3, unless either Party gives the other notice of non-renewal at least thirty (30) days prior to the next Renewal Term. Notwithstanding anything to the contrary set forth in this Agreement, these Service Terms shall remain in effect so long as there is an active Statement of Work in place between the Parties.

7.2 Termination. Either Party may terminate this Agreement as follows: (a) for cause if the other Party breaches this Agreement and does not remedy such breach within thirty (30) days after the provision of written notice of such breach; or (b) immediately if the other Party: (i) terminates its business activities or becomes insolvent; (ii) admits in writing to the inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; or (iv) becomes subject to direct control of a trustee, receiver or similar authority.

7.3 Effect of Termination. Upon the expiration or termination of this Agreement: (a) Client’s right to use the Services shall immediately cease, and Aisle Rocket shall have no further obligation to make any Services available to Client; (b) all rights and licenses granted to Client under this Agreement will immediately cease; (c) except as provided in Paragraph 5 of Addendum A (if applicable), Aisle Rocket will have no further obligation to Client, including with respect to Client Data; (d) Client will pay any unpaid Fees payable for the remainder of the Term under the Statement of Work; and (e) Client will pay any other Fees for work or Services performed through the effective date of termination.

8. Confidential Information.

8.1 Confidential Information. “ Confidential Information ” means any and all information provided or disclosed by a Party (the “ Disclosing Party ”) to the other Party (the “ Receiving Party ”) in connection with this Agreement that is marked as “confidential” or with similar designation or that the Receiving Party knows or should know is confidential or proprietary given the nature of the information or circumstances of disclosure, including, but not limited to, the Services, proposals relating to such Services, all pricing information relating to such Services, any concepts, data, drawings, documents, proposals, specifications, programs, data models, data integration tools and techniques, code, programs and works as well as samples, specimens, copyright, patent and trademark applications or registrations, trade secrets, know-how, past, current or prospective customers or customer lists, marketing plans and activities, information about the education, background, experience and/or skills possessed by employees, employee compensation information, service and/or sales concepts, service and/or sales methodology, customer satisfaction data, sales information, distribution plans, contracts, agreements, security systems and procedures, communications networks and systems, research and development activities, purchasing activities, accounting and financial records of the Disclosing Party and any other proprietary information, including information relating to the development, testing, manufacture, creating and licensing of data, software products, and services. “Confidential Information” does not include information (including, but not limited to, ideas, concepts, know-how, techniques and methodologies) that: (a) is or becomes publicly available through no breach of this Agreement or any other agreement between the Parties; (b) is independently developed by such Party without use of the Disclosing Party’s Confidential Information; (c) was previously known to the Receiving Party without obligation of confidence; or (d) was acquired by the Receiving Party from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information. For the avoidance of doubt, ARS Property is Confidential Information of Aisle Rocket.

8.2 Confidentiality Covenants. Each Receiving Party acknowledges and agrees that the Disclosing Party’s Confidential Information is confidential and proprietary and greatly affects the goodwill and the effective and successful conduct of Disclosing Party’s business and operations, and that maintaining confidentiality of the Confidential Information is necessary to protect the legitimate business interests of Disclosing Party. Accordingly, each Receiving Party shall (a) protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care it takes to protect its own confidential information of like kind, and in no event less than a reasonable degree of care, and shall restrict access to Confidential Information to its personnel on a need-to-know basis; (b) maintain, and ensure its Representatives maintain, the Disclosing Party’s Confidential Information in strict confidence; and (c) not, and ensure that its Representatives do not, at any time, directly or indirectly, divulge, reveal or communicate any Confidential Information to any third party, or use, pursue or exploit any Confidential Information for its own benefit or for the benefit of others. Each Receiving Party acknowledges that nothing herein shall be construed as granting a license or right to use the Disclosing Party’s Confidential Information except for the specific purposes contemplated by this Agreement. In no event shall a Receiving Party use the Disclosing Party’s Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of the Disclosing Party. In the event a Receiving Party receives a subpoena or other validly issued administrative or judicial process requesting the Disclosing Party’s Confidential Information, the Receiving Party shall promptly notify the Disclosing Party of such receipt (if legally permissible) and may comply with such subpoena or process to the extent required.

8.3 Return or Destruction. Each Receiving Party shall return or destroy the Disclosing Party’s Confidential Information upon the Disclosing Party’s request. The Receiving Party may retain, subject to the obligations of this Section 8, one copy of the Disclosing Party’s Confidential Information for recordkeeping or audit purposes. Moreover, (a) each Party will not be required to return, destroy, delete, or redact Confidential Information to the extent that it has been saved to a back-up file in accordance with each Party’s current and commercially reasonable information security policies (including but not limited to applicable back-up and records retention policies) so long as the back-up file is secured by the Receiving Party in a commercially reasonable manner against unauthorized use or access by a third party or by the Party’s Representatives, and will treat such information as confidential pursuant to the terms hereof, or (b) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.

8.4 Remedies for Breach of Confidentiality Covenants. Each Receiving Party agrees that any unauthorized disclosure or use of the Disclosing Party’s Confidential Information would cause immediate, substantial and irreparable injury to the Disclosing Party and/or its Affiliates. In the event of any violation of this Section 8 , the Receiving Party agrees that remedies at law will be insufficient to remedy such violations and that therefore the Disclosing Party shall be entitled, in addition to remedies at law, to seek preliminary and permanent injunctive relief, without bond, attorneys’ fees, costs, or expenses.

9. Non-Solicitation of Representatives.

9.1 Non-Solicitation Covenant. Client agrees that, during the Term and for a period of one (1) year after the termination of this Agreement, Client shall not, directly or indirectly, hire, engage, employ, negotiate the employment of, or solicit the employment or engagement of, any Representative(s) of Aisle Rocket without the prior written consent of Aisle Rocket; provided, however, that a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, so long as such advertisement is not directed or created in an attempt to solicit a specific individual(s) shall not be construed as a solicitation or inducement for the purposes of this Section 9.1 , and the hiring of any such Representative who freely responds thereto shall not be a breach of this Section 9.1 .

9.2 Remedies for Breach of Non-Solicitation Covenant. Client acknowledges that the restrictions contained in Section 9.1 are reasonable and necessary for the protection of Aisle Rocket’s legitimate business interests and that any violations of these restrictions would cause immediate, substantial and irreparable injury to Aisle Rocket and/or its Affiliates. In the event of any violation of Section 9.1 , Client agrees that remedies at law will be insufficient to remedy such violations and that therefore Aisle Rocket shall be entitled, in addition to remedies at law, to seek preliminary and permanent injunctive relief, without bond, attorneys’ fees, costs, or expenses.

10. Miscellaneous.

10.1 Interpretation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted. The descriptive headings herein are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The singular number shall include the plural, and vice versa. Any use of the word “including” will be interpreted to mean “including, but not limited to,” unless otherwise indicated. All references to payments and dollar amounts refer to United States Dollars, and all payments hereunder shall be made in United States Dollars. This Agreement shall be binding upon and inure to the benefit of the successors and assigns the Parties.

10.2 Choice of Law; Venue. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, shall be determined by the courts sitting in Delaware. In any action or proceeding to enforce this Agreement, including collection of overdue Fees, Aisle Rocket shall be entitled to recover from Client its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

10.3 Notices. Any notice or other communication required under this Agreement shall be in writing and shall be effective upon (a) the earlier of actual receipt or five (5) days following deposit into the United States mail (certified mail, return receipt requested); (b) the next business day following deposit with a nationally recognized overnight courier service; and/or (c) or the same day following transmission via e-mail (or the next business day if sent outside of regular business hours), in each case with any delivery fees pre-paid and addressed to, the Party at the address set forth in the Statement of Work or such other address as that Party may notify the other from time to time in accordance with this Section 10.2 .

10.4 Relationship of Parties. The relationship between the Parties will solely be that of independent contractors. Neither Party shall have the authority to bind, represent or commit the other Party. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, agency, fiduciary or employment relationship between the Parties.

10.5 No Third Party Rights. No provision of this Agreement shall be deemed or construed in any way to result in the creation of any rights or obligations in any person not a party or otherwise affiliated with a Party to this Agreement.

10.6 Identification, Advertising & Publicity. Notwithstanding anything to the contrary in this Agreement, Client grants Aisle Rocket the right to use Client’s name and trademarks and a general description of the Services provided to Client by Aisle Rocket, in its resumes, client list, and in other promotional information, including, but not limited to, press releases, brochures, reports, letters, white papers and electronic media such as e-mail or webpages.

10.7 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Client or Aisle Rocket by operation of law or otherwise, without the prior written consent of the other Party; provided, however, this Agreement may be assigned or transferred by either Party in the event of the sale by such Party of substantially all of its assets or a change in control resulting in at least a 51% of such Party being owned by individuals or entities that are not current owners. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.

10.8 Waiver, Severability. Failure by either Party to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular claim involved, nor shall any course of conduct between the Parties or any other Party be deemed to modify any provision of this Agreement. If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.

10.9 Force Majeure. Except with regard to payments due to Aisle Rocket, neither Party shall be liable for any delays or failures in performance due to circumstances beyond its control which could not be avoided by the exercise of due care.

10.10 Survival. The following provisions shall survive termination of this Agreement for any reason: (a) with respect to these Service Terms, Sections 2, 3, 4.3, 5.1, 5.2, 6, 7.3 , and 8 through 10 , (b) with respect to Addendum A (if applicable), the last sentence of Paragraph 1 and Paragraph 5, and (c) any other provisions of this Agreement which by their nature are intended to extend beyond termination.

10.11 Entire Agreement; Amendment. The Statement of Work and these Service Terms constitute the entire agreement between Aisle Rocket and Client and supersede all prior agreements, arrangements, representations and communications (whether oral or written) regarding the subject matter of this Agreement. Client is entering into this Agreement solely based upon the agreements and representations contained herein for its own purposes and not for the benefit of any third party. This Agreement may be amended or modified only as provided for in these Service Terms or otherwise by a written agreement executed by both Parties. Except as explicitly provided in these Service Terms, no waiver, modification or amendment to this Agreement shall be valid unless in writing, signed by the Parties.

Addendum A

Client Data

This Addendum shall apply and be incorporated into the Agreement to the extent Client provides Aisle Rocket with, or with access to, any Client Data.

1. Client Data. To provide Client with Services, Client shall provide Aisle Rocket with ongoing access to Client Data, in the data format specified in the Statement of Work. As between Client and Aisle Rocket, Client shall own Client Data. Client hereby grant to Aisle Rocket a license to use all Client Data for the purpose of providing the Services to Client. Aisle Rocket respects the privacy of Client’s account information and Client Data, will not comingle Client Data with the data of other clients of Aisle Rocket, will only use Client Data for the purposes set forth in this Agreement, and will take active measures to protect such information in accordance with the security measures described in Aisle Rocket’s Privacy Policy. Further, Aisle Rocket warrants that it will appropriately protect the confidentiality, integrity, and availability of any Client Data that it receives, maintains or transmits to or on behalf of Client and it will ensure that any agent, including a subcontractor, to whom it may provide such information, agrees to implement commercially reasonable and appropriate data security safeguards to protect it. The Client acknowledges that Aisle Rocket will rely on the accuracy and authenticity of the Client Data. The Client unconditionally represents, warrants and guarantees that any elements of text, graphics, photos, designs, trademarks, non-sensitive data, or other material used by Aisle Rocket in connection with the Services may be used in marketing materials promoting Aisle Rocket, and will hold harmless, indemnify and defend Aisle Rocket, its Affiliates and its and their directors, officers and Representatives from and against any and all Claims and Losses arising out of or relating to the use of such elements.

2. Client’s Warranties with Respect to Client Data. Client represents and warrants that: (a) Client owns all right, title and interest in and to, or has full and sufficient authority to use, Client Data; (b) the Client Data contains accurate and complete information; (c) Client will secure and comply with the terms and conditions of any licensing agreements which govern the use of any Client Data owned by third parties; (d) Client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Aisle Rocket by Client, directly or indirectly, are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements; (e) the Client Data, and Aisle Rocket’s permitted use thereof pursuant to this Agreement, does not and will not infringe the patent, copyright, trademark or other intellectual property rights of any third party, or constitute libel, slander, defamation, invasion of privacy, or violation of any right of publicity or any other third- party rights; (f) Client has or will secure all necessary consents, permissions, clearances, authorizations and waivers for the use of Client Data; and (g) Client has complied and will comply with all laws, rules and regulations regarding the use of Client Data, including, when applicable, the California Consumer Privacy Act, and the implementing California Consumer Privacy Act Regulations, similar state laws, and General Data Protection Regulation 2016/679.

3. Client Responsibilities with Respect to Client Data. The Client shall: (a) provide Client Data to Aisle Rocket in the file formats specified without change in such formats over the Term of this Agreement except as such file formats may be changed as provided in this Agreement; and (b) provide Aisle Rocket thirty (30) days advance notice of any request to change the file format of Client Data pursuant to the Statement of Work, which such Statement of Work, including the timing of any such change, will be subject to the mutual agreement of the Parties.

4. Personally Identifiable Information. If Aisle Rocket has access to any Client Data pertaining to Client’s customers that includes information that can be used to identify an individual natural person, including an individual’s name, address, complete telephone number, e-mail address, or other similar specific factual information (“ Personally Identifiable Information ”), Aisle Rocket shall (a) comply with all applicable privacy and other laws and regulations relating to protection, collection, use, and distribution of Personally Identifiable Information; (b) endeavor to secure Personally Identifiable Information from unauthorized access, use, disclosure and loss using generally accepted security practices and technologies, and notify Client within seventy-two (72) hours of becoming aware (after a reasonable time for investigation) of the occurrence of an actual breach of security involving Personally Identifiable Information; and (c) not, without the prior written consent of Client, disclose the Personally Identifiable Information to a third party or use the Personally Identifiable Information for any purpose other than to provide the Services under this Agreement. Without limiting the foregoing, in no event may Aisle Rocket (i) use Personally Identifiable Information to market its services or those of a third party, or (ii) sell or transfer the Personally Identifiable Information to third parties, or otherwise provide third parties with access thereto.

5. Transition of Client Data. Upon Client’s written request anytime within thirty (30) days following termination or expiration of this Agreement, Aisle Rocket shall return to Client the Client Data; provided, that Aisle Rocket may retain Client Data on backup servers for audit purposes, which shall remain subject to the non-disclosure requirements set forth in Section 8 of the Service Terms. If after such thirty (30) day period Client has not requested the return of the Client Data, then unless prohibited by applicable laws, Aisle Rocket may delete or erase any and all Client Data maintained by Aisle Rocket in connection with the Services, except for any backup copies retained by Aisle Rocket for audit purposes, which shall belong solely to Aisle Rocket. Except as provided in this Section, Aisle Rocket shall have no obligation to continue to store or permit Client to access any Client Data following termination of this Agreement.