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RedCart Terms of Service

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RedCart Terms of Service

RedCart End User License Agreement (EULA)

THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE EMPLOYEE, THE INDIVIDUAL, OR THE ENTITY IDENTIFIED AS “CUSTOMER” (AS DEFINED HEREINAFTER) AND REDCART SOLUTIONS. THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH CUSTOMER MAY USE THE SOFTWARE (REDCART SOFTWARE). BY CLICKING ON THE ACCEPT CHECKBOX, AND EITHER HAVING REDCART SOFTWARE INSTALLED ON CUSTOMER’S BEHALF (HOSTED BY CUSTOMER), OR HOSTED BY REDCART SOLUTIONS ON CUSTOMER’S BEHALF. CUSTOMER INDICATES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS SET FORTH IN THIS AGREEMENT. THE TERMS SET FORTH IN THIS AGREEMENT SHALL APPLY TO CUSTOMER AS WELL AS TO the INDIVIDUAL OR ENTITY INSTALLING, COPYING OR USING “REDCART SOFTWARE” ON BEHALF OF CUSTOMER. THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE EARLIER OF THE DATE “REDCART SOFTWARE” IS INSTALLED OR USED. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, DO NOT INSTALL OR USE “REDCART SOFTWARE”.

This software Agreement (“Agreement”) is made as of the Effective Date by and between RedCart Solutions (“RedCart Solutions” or “RedCart”), a limited liability company with offices located in Stillwater, MN and the individual or entity identified on the Sales Agreement as customer (“Customer”).

W I T N E S S E T H:

WHEREAS, RedCart Solutions owns that certain software application entitled RedCart Software; and

WHEREAS, Customer has had an opportunity to review and approve the functions and utilities of RedCart Software and is familiar with the use and operation of RedCart Software; and

WHEREAS, Customer has independently determined that RedCart Software will meet the needs of Customer for an online photographic proofing and ecommerce software application on a single web site domain; and

WHEREAS, Customer desires to receive a license to use RedCart Software.

NOW THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, RedCart Solutions and Customer hereby agree as follows:

ARTICLE I: RECITALS AND DEFINITIONS

Section 1.01 — Recitals: The above recitals and identification of parties are true and correct.

Section 1.02 — Definitions: The following definitions shall apply:

(1)RedCart Software: The term “RedCart Software” shall mean the object code for that certain RedCart Software application, which is specified in RedCart’s Sales Agreement and hereunder and including the Documentation and any Updates hereunder, which RedCart either makes accessible or provides to Customer , in either of the following options:
a. A RedCart Hosting License to the RedCart Photo Suite, which is hosted on RedCart’s controlled web server and system, and which does not exceed storage memory of 16 Gigabytes, or

b. A Self-Hosted License to the RedCart Photo Suite, which is hosted on Customer’s controlled web server and system.

(2)Access: The term “Access” and variants thereof shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.

(3)Associate: The term “Associate” shall mean an employee of RedCart Solutions or an independent contractor hired by RedCart Solutions.

(4)Authorized Person: The term “Authorized Person” shall mean Customer or employees of Customer who agree in writing to maintain the confidentiality of Confidential Information and individuals or organizations who are authorized in writing by RedCart Solutions to receive Confidential Information and who agree in writing to maintain the confidentiality of such Confidential Information.

(5)Confidential Information: The term “Confidential Information” shall mean all information concerning this Agreement, RedCart Software, and the business and technical plans of RedCart Solutions which RedCart discloses or makes accessible to Customer hereunder.

(6)Defects: The term “Defects” shall mean programming errors which substantially impair the performance, utility and functionality of RedCart Software, as represented in the Documentation.

(7)Defect Notice: The term “Defect Notice” shall mean that certain written notice from Customer to RedCart Solutions identifying Defects.

(8)Delivery Date: The term “Delivery Date” shall mean the date RedCart Software is delivered to Customer (as applicable).

(9)Documentation: The term “Documentation” shall mean the RedCart Software installation & user guide (in electronic or printed format) as provided to Customer on the Delivery Date.

(10)Effective Date: The term “Effective Date” shall mean the earlier of the date that the Sales Agreement is executed by RedCart Solutions and Customer or the date RedCart Software is installed or used.

(11)Event of Bankruptcy: The term “Event of Bankruptcy” shall mean: (1) the filing of a petition under any insolvency or bankruptcy statute seeking the declaration of Customer as insolvent or bankrupt; (2) the filing of any action seeking receivership or reorganization of Customer pursuant to or under any insolvency or bankruptcy statute; or (3) the filing of any involuntary petition against Customer pursuant to any insolvency or bankruptcy statute if such petition shall remain unstayed or undismissed for a period of ten (10) days after filing.

(12)Implement: The term “Implement” and variants thereof (including, but not limited to, the terms “implementation”, “implementing” and “implemented”) shall mean to load.

(13)Maintenance Services: The term “Maintenance Services” shall mean Defect resolution services concerning RedCart Software (excluding the system) hosted by RedCart Solutions for Customer for the prevailing fees and time and material rates published by RedCart Solutions and subject to RedCart Solutions standard maintenance terms. RedCart reserves the right to change the fees and rates without notice.

(14)Price: The term “Price” shall mean the total price to be paid by Customer to RedCart Solutions for licensing RedCart Software in the system as selected and set forth in the Sales Agreement.

(15)Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act, and Section 1839 of Title 18 of the United States Code (18 U.S.C. § 1839).

(16)Sales Agreement: The term “Sales Agreement” means the computer-generated confirmation provided to the Customer by RedCart Solutions setting out the terms agreed to with the Customer. The Sale Agreement shall be incorporated into this Agreement and all references to the Agreement shall include the Sales Agreement.

(17)Services: The term “Services” shall mean services regarding certain RedCart Software hosted by Customer, and training, telephone support, development and consulting services as requested by Customer and approved by RedCart Solutions in writing. RedCart reserves the right at any time to modify, suspend, or discontinue, temporarily or permanently, any provided Services (or any part thereof) with or without notice. RedCart will not be liable to Customer or to any third party for any modification, suspension, or discontinuance of any provided Services.

(18)Term: The term “Term” shall mean a period of time commencing on the Effective Date and continuing until this Agreement is terminated or canceled under Article IV.

(19)Third Party Technology: The term “Third Party Technology” shall mean third party software, computer, hardware, peripherals, components, devices, equipment and technology used in connection with or related to RedCart Software.

(20)Unauthorized Access: The term “Unauthorized Access” shall mean any access to RedCart Software except for the exclusive purpose of online photographic proofing and ecommerce, and training employees of Customer in the use of RedCart Software.

(21)Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses RedCart Software except for: (1) employees of Customer authorized by Customer to access RedCart Software and who agrees to maintain the confidentiality of Confidential Information for the exclusive purpose of performing online photographic proofing and ecommerce, and training employees of Customer in the use of RedCart Software and (2) Authorized Persons authorized in writing by RedCart Solutions to access RedCart Software.

(22)Updates: The term “Updates” shall mean the object code for updates, upgrades, new versions, new releases or modifications to RedCart Software as generally made available by RedCart Solutions from time to time to RedCart Solutions customers for the applicable fee.

(23)Warranty Term: The term “Warranty Term” shall mean a period of time commencing on the Delivery Date and ending on the date which is ninety (90) days thereafter.

ARTICLE II: SOFTWARE

Section 2.01 — Grant of License: RedCart Solutions hereby grants to Customer a non-exclusive and non-transferable license to use RedCart Software for the License Term in the options of either (a) a monthly or annual RedCart Hosted License, or (b) a Self-Hosted License to RedCart Software hosted by Customer, subject to the terms and provisions of this Agreement, and provided that Customer does not (and does not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the RedCart Software. Customer agrees not to modify the RedCart Software in any manner or form, nor to use modified versions of the RedCart Software, including (without limitation) for the purpose of obtaining unauthorized access to the RedCart Software. Customer agrees not to access RedCart Software by any means other than through the interface that is provided by RedCart for use in accessing RedCart Software.

Section 2.02 — Delivery: Customer hereby acknowledges RedCart Solutions shall deliver or make accessible RedCart Software on the Delivery Date.

Section 2.03 — Implementation: With respect to the Self-Hosted License, Customer shall install the RedCart Software and implement RedCart Software solely on one internet domain (i.e. www.example.com) that is specified by Customer, subject to the terms and conditions of this Agreement. With respect to the monthly or annual RedCart Hosted License, Customer will access RedCart Software solely on the terms and conditions of this Agreement.

Section 2.04 — Risk of Loss: Customer shall assume risk of loss to RedCart Software as of the Delivery Date. With respect to the Self-Hosted License, Customer shall keep RedCart Software protected and in good working order, maintained and insured against loss for full replacement value until the date that the Price is paid in full by Customer.

Section 2.05 — Authorized Use: Customer shall not use the RedCart Software in an unlawful manner or in contravention of any applicable country, federal, state, county and local laws, ordinances, regulations, and codes. Customer shall prevent Unauthorized Users from accessing and Unauthorized Access to RedCart Software. Customer shall promptly inform RedCart Solutions of any and all Unauthorized Access (or suspected Unauthorized Access) and Unauthorized Users (or suspected Unauthorized Users) of which Customer has knowledge or suspicion. Access to RedCart Software using third party products for purposes of manipulating, viewing, disclosing or using the internal structure of RedCart Software or for creating a database, data dictionary or data model shall be deemed Unauthorized Access.

Section 2.06 — Site Restriction: With respect to the Self-Hosted License and hosting by Customer, Customer shall use RedCart Software only on one internet domain (i.e. www.example.com). Customer may transfer RedCart Software from one domain to another domain but must inform RedCart Solutions when doing so. Customer may only have one installed and working version of RedCart Software at any one time.

Section 2.07 — End Use: With respect to the Self-Hosted License and hosting by Customer, Customer hereby represents and warrants that RedCart Software is being licensed by Customer for its own use at a single internet domain and not for rental, leasing, resale, sublicensing, distribution, outsourcing, or offering service bureau services.

Section 2.08 — Services: Customer may request Services, as approved by RedCart Solutions. All Services shall be subject to the discretion of RedCart Solutions and shall be subject to RedCart Solutions standard service terms and applicable time and material rates, which are subject to change without notice as determined by RedCart.

Section 2.09 — License Plan Feature Limitations and Restrictions: Customer’s use of RedCart Software will be subject to the terms, conditions and feature restrictions set forth herein and posted on the www.redcart.com web site through which Customer subscribes to a RedCart license plan. Customer acknowledges that RedCart’s terms, conditions and feature restrictions are located on RedCart’s web site. Customer understands that these terms, conditions and feature restrictions contain the standard terms and conditions applicable to all licenses and license plans.

Customer agrees that the terms, conditions and feature restrictions apply to, control and are deemed incorporated into and made part of this Agreement and any validly issued Agreements hereunder, unless RedCart expressly waives the applicability of the same in writing.

Customer acknowledges that RedCart may change the terms, conditions and feature restrictions from time to time without written notice to Customer. All such changes shall have an effective date that will not be sooner than seven (7) days after they have been posted in the updates section RedCart’s web site, and shall apply to all accepted orders or agreements for the purchase of license entered into after the effective date of the change. Customer agrees that, subject to the terms of the written separate addendum to terms, conditions, and feature restrictions it will not contest the validity, enforceability or admissibility of such. The terms, conditions and features provided on the web site and that hard copy printouts of any information provided on the web site are admissible, if introduced as evidence in tangible form in any judicial or administrative proceedings, to the same extent and under the same conditions as other business records originated and maintained in documentary form. Customer acknowledges and understands that its use of RedCart Software through a RedCart license plan may be limited in terms of functionality, features and support as compared with the Services provided through RedCart’s other license plans. Customer may upgrade or downgrade their license plan at any time.

If Customer exceeds any such feature limitation, its access to the Services may be disabled automatically. In such event, Customer may purchase a license plan upgrade. Customer’s access to the Services will be disabled until payment is received.

ARTICLE III: PAYMENT

Section 3.01 — Price: Customer shall pay the license fee for RedCart Software on the Effective Date.

Section 3.02 — Taxes: Customer shall pay any and all taxes attributable to this Agreement, to the transactions contemplated hereunder or to the transactions performed by Customer or third parties using RedCart Software, including, without limitation, any applicable sales or use taxes. Notwithstanding the foregoing, Customer shall not be responsible for paying any income taxes assessed against RedCart Solutions.

Section 3.03 — Late Fee: Any amount which is not paid when due shall be increased by a late charge equal to the greater of either 1.5% or the maximum rate permitted by law of such unpaid amount for each month (or portion thereof) in which such amount is due and not paid.

Section 3.04 — Invoicing and Payment: Services shall be performed by RedCart Solutions at the time and material rates of RedCart Solutions prevailing at the time such Services are rendered. RedCart Solutions shall invoice Customer for fees and costs in connection with the Services. Customer shall pay any such invoice in full on the due date.

Section 3.05 — Payment by Credit Card: Customer shall use a credit card to pay for RedCart Software. When Customer provides credit card information to RedCart Solutions, Customer represents and warrants to RedCart Solutions that Customer is the authorized user of the credit card that is used to pay for RedCart Software or other fees. With respect to the RedCart Hosted License, each month that Customer has a RedCart Software account, Customer agrees and confirms that RedCart is authorized to charge Customer’s credit card for the monthly fee. Customer agrees to promptly notify RedCart of any changes to Customer’s credit card account number, its expiration date and/or Customer’s billing address, and Customer agree to promptly notify RedCart if Customer’s credit card expires or is canceled for any reason. As the account holder, Customer is responsible for all charges incurred, including applicable taxes, and all purchases made by Customer or anyone that uses Customer’s account.

ARTICLE IV: TERMINATION

Section 4.01 — Termination Limitations: This Agreement shall only be terminated or canceled as provided under this Article IV.

Section 4.02 — Term: This Agreement shall be valid for the Term specified in the Sales Agreement.

Section 4.03 — Intentionally Left Blank

Section 4.04 — Termination: RedCart Solutions or Customer can terminate this Agreement at any time. If Customer violates its obligations under this Agreement, RedCart Solutions may cancel this Agreement by sending Cancellation Notice describing the noncompliance to Customer. Upon receiving Cancellation Notice, Customer shall have ten (10) days from the date of such notice to cure any such noncompliance. If such noncompliance is not cured within the required ten (10) day period, RedCart Solutions shall have the right to cancel this Agreement as of the eleventh day after the date of the Cancellation Notice. With respect to the RedCart Hosted License, Customer can terminate this Agreement at any time, by giving RedCart Solutions Cancellation Notice and by destroying all software and materials obtained from RedCart Solutions and all related documentation, and installations thereof within ten (10) days of such Notice. In the event of termination of this Agreement, Customer shall not be entitled to the refund of any unused portion of fees or payments (if any).

Section 4.05 — Survival: Articles I, II, III, V, VI and VII shall survive any termination of this Agreement.

ARTICLE V: WARRANTY

Section 5.01 — Warranty: RedCart Solutions represents and warrants that RedCart Software shall perform substantially as represented in the Documentation for the Warranty Term (90 days from Delivery Date). Customer’s exclusive remedy for breach of warranty shall be modification or replacement of RedCart Software, as determined by RedCart Solutions.

Section 5.02 — Third Party Warranties: RedCart Solutions hereby assigns to Customer the benefit of any and all Manufacturer warranties for the Third Party Technology and may cooperate (as determined by RedCart Solutions) with Customer in securing the benefit of any remedies available to Customer under any such Manufacturer warranty.

Section 5.03 — Service Warranty: Any Services provided by RedCart Solutions pursuant to this Agreement shall be performed on a reasonable efforts and as is basis in a timely and professional manner and shall conform to the standards generally observed in the industry for similar Services and shall be subject to Sections 5.01, 5.04, 5.05 and 5.08.

SECTION 5.04 — DISCLAIMER: THE WARRANTIES SET FORTH IN SECTIONS 5.01 AND 5.03 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND REDCART SOLUTIONS HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.

Section 5.05 — Express Warranties: Customer hereby acknowledges and agrees that RedCart Solutions (including RedCart Solutions officers, employees, agents, directors, independent contractors, affiliates, distributors and successors) has not made or granted any express warranties concerning RedCart Software, the selected system and the Services, except as expressly set forth in Sections 5.01 and 5.03 of this Agreement.

Section 5.06 — Third Party Claims: If a final judgment from a court of competent jurisdiction is entered against Customer upholding claims that RedCart Software violates a United States patent, copyright, trade secret or other proprietary rights of a third party in the United States, provided that Customer gives RedCart Solutions prompt written notice upon Customer’s knowledge of any such claim, permits RedCart Solutions to answer and defend (at RedCart Solutions option) such claim or action and provides RedCart Solutions with information, assistance and authority to assist RedCart Solutions in the defense of such claim or action, RedCart Solutions shall perform one or more of the following actions (as determined by RedCart Solutions) within one year of the date final judgment in favor of such third party’s claim is rendered by a court of competent jurisdiction:

(1) Replacement: Replace RedCart Software with a non-infringing RedCart Software product of substantially equivalent functional and performance capability;

(2) Modification: Modify RedCart Software to avoid the infringement without substantially eliminating the functional and performance capabilities of RedCart Software;

(3) Obtain Agreement: Obtain a license for use of RedCart Software from the third party claiming infringement for use of RedCart Software.

RedCart Solutions shall have the right to participate or assume the defense (as determined by RedCart Solutions) and Customer shall permit and authorize RedCart Solutions to participate in or assume the defense of any such claim or action through legal counsel. The foregoing remedy does not apply and RedCart Solutions shall have no obligation in connection with or relating to any third party infringement claim in connection with or related to (i) Customer’s modification of RedCart Software; (ii) Customer’s failure to use RedCart Software in accordance with the Documentation in effect; (iii) Customer’s failure to use the most current release or version of RedCart Software; (iv) Customer’s combination, interface, operation or use of RedCart Software with Third Party Technology; and (v) RedCart Solutions compliance with designs, instructions, or specifications required by Customer. The remedies set forth herein shall be the sole and exclusive remedies of Customer under this Agreement for any and all claims of indemnification relating to infringement. RedCart Solutions obligations set forth in this Section 5.06 shall not apply to the Third Party Technology.

Section 5.07 — Remedies: The exclusive remedy of Customer for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the selected system, RedCart Software or any transaction involving RedCart Software, regardless of the form of action, whether in contract or in tort, including negligence and breach of warranty, shall be limited to repair or replacement of RedCart Software as determined by RedCart Solutions.

Section 5.08 — Limitation of Damages: RedCart Solutions shall not be liable to Customer in connection with or relating to this Agreement, the selected system, RedCart Software and any transactions involving RedCart Software for any direct, indirect, lost profits, consequential, special, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including, without limitation, damages for loss of business, business interruption, loss of business information or other indirect or consequential loss , breach of warranty and negligence, regardless of whether RedCart Solutions has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding anything to the contrary, the liability of RedCart Solutions for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the selected system, RedCart Software and any transactions involving RedCart Software shall be limited to the amount of the license fee it received for RedCart Software.

Section 5.09 — Force Majeure: RedCart Solutions shall not be liable for any failure by RedCart Solutions to perform its obligations under this Agreement because of circumstances beyond the reasonable control of RedCart Solutions, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government, governmental authority or third party, declarations of governments, transportation delays, power failure, computer failure, web server failure, telecommunications failure, Third Party Technology, failure of Customer to cooperate with the reasonable requests of RedCart Solutions, misuse of the selected system or RedCart Software by Customer or third party, breach of this Agreement by Customer or a third party and any other events reasonably beyond the control of RedCart Solutions.

Section 5.10 — Customer Indemnification: Customer shall release, defend, indemnify and hold harmless RedCart Solutions (including its officers, directors, employees, affiliates, independent contractors, distributors, agents and successors) against any expense, loss, cost or liability (including, without limitation, interest, penalties, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (1) use of RedCart Software by Customer or Customer’s customers, (including, without limitation, any claim regarding use of RedCart Software by Customer in an infringing manner or any claim by third parties for breach of warranty, negligence, loss of data, libel, slander, unfair competition, trademark infringement, or invasion of privacy); (2) performance of RedCart Software; (3) Corruption or damage to the RedCart Software and system; (4) Customer’s negligence or the acts (or any failure to act) of Customer hereunder; (5) any breach by Customer of the obligations of Customer hereunder; and (6) investigation or defense of any of the above or in asserting RedCart Solutions rights hereunder.

Section 5.11 — Maintenance: With respect to the Self-Hosted License, Customer hereby acknowledges and agrees that Customer shall solely be responsible for acquiring, installing, implementing, updating, upgrading, maintaining and replacing Customer’s system and all Third Party Technology for any reason, including (without limitation) for Updates or correction of Defects, including (without limitation) all costs, fees, taxes and payments in connection therewith or related thereto.

Section 5.12 — PCI DSS: Customer is solely responsible for compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) as applicable.

ARTICLE VI: INTELLECTUAL PROPERTY

Section 6.01 — Ownership and Title: Title to RedCart Software, including all ownership rights to patents, copyrights, trademarks and trade secrets therein or in connection therewith shall be the exclusive property of RedCart Solutions. Customer hereby assigns, transfers and conveys to RedCart Solutions any and all rights, title and interests Customer may have or accrue in RedCart Software, including (without limitation) any and all ownership rights to patents, copyrights, trademarks and trade secrets therein or in connection therewith.

Section 6.02 — Confidential Information: RedCart Software shall be deemed Confidential Information of RedCart Solutions. Customer shall maintain the Confidential Information in strict confidence. Customer shall not disclose Confidential Information except to Authorized Persons. Customer shall not access, duplicate or use the Confidential Information except as otherwise permitted under this Agreement.

Section 6.03 — Trade Secrets: Customer hereby acknowledges and agrees that the Confidential Information (i) derives independent economic value (actual or potential) from not being generally known to, or readily ascertainable by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of reasonable efforts by RedCart Solutions under the circumstances to maintain its secrecy.

Section 6.04 — No Reverse Engineering: Customer shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the object or source code or any portion of RedCart Software and shall not allow RedCart Software to be reverse engineered. decompiled, disassembled or otherwise discovered.

Section 6.05 — Backup Copy: Customer may create one copy of RedCart Software only for routine archival or backup purposes.

Section 6.06 — No Copies: Except as provided in Section 6.05, Customer shall not copy RedCart Software and shall not allow RedCart Software to be copied without the prior written consent of RedCart Solutions.

Section 6.07 — No Modifications: Customer shall not modify, port, adapt or translate any part of the RedCart Software and shall not allow RedCart Software to be modified without the prior written consent of RedCart Solutions. Customer shall not use RedCart Software or any materials incident thereto to develop computer software without the prior written consent of RedCart Solutions. If RedCart Software is modified, such modifications shall be the sole and exclusive property of RedCart Solutions and RedCart Solutions shall own any and all rights, title and interests to such modifications and any resulting computer software, including (without limitation) any and all copyrights, patents and trade secrets therein or in connection therewith.

Section 6.08 — No Contest: Customer shall not contest or aid in contesting the ownership or validity of the trademarks, service marks, trade secrets, or copyrights of RedCart Solutions.

Section 6.09 — Employee Pirating: Customer shall not induce or solicit (directly or indirectly) any Associate to leave the employ or hire of RedCart Solutions. Customer shall not engage (directly or indirectly) the services of such Associate (as an employee, consultant, independent contractor, or otherwise) without the advance written consent of RedCart Solutions.

Section 6.10 — U.S. Government Restricted Rights: If Customer is the U.S. Government or an agency or department thereof (collectively “Government”), RedCart Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights clause at 48 C.F.R. 52.227-19.

Section 6.11 — Proprietary Notices: Customer shall not remove, alter or obscure any copyright notices or other proprietary legends displayed by or used by RedCart Solutions in connection with or related to RedCart Software.

Section 6.12 — Trademarks: RedCart Solutions trademarks, trade dress, logos, trade names or insignia (“RedCart Solutions Marks”), including (without limitation) RedCart Software, are owned exclusively by RedCart Solutions. RedCart Solutions shall retain all rights, title and ownership interests in RedCart Solutions Marks. Customer shall not (directly or indirectly) use any trademark, trade name, trade dress, insignia or logo that is similar to or a colorable imitation of any RedCart Solutions Marks.

Section 6.13 — Continuation: The terms and conditions of this Article VI shall survive termination and cancellation of this Agreement.

ARTICLE VII: GENERAL MATTERS

Section 7.01 — Assignments: All assignments of rights under this Agreement by Customer without the prior written consent of RedCart Solutions shall be void.

Section 7.02 — Public Announcement: All public announcements of the relationship of RedCart Solutions and Customer under this Agreement shall be subject to the prior written approval of RedCart Solutions. RedCart Solutions shall have the right to use the name of Customer as a reference for marketing purposes in connection with RedCart Software.

Section 7.03 — Entire Agreement: This Agreement and the Sales Agreement contain the entire understanding of the parties and supersede previous verbal and written agreements between the parties concerning the selected system and RedCart Software. In the event of a conflict between the terms of this Agreement and the terms of the Sales Agreement, the terms of this Agreement shall prevail.

Section 7.04 — Amendments and Modifications: Alterations, modifications or amendments of a provision of this Agreement shall not be binding unless such alteration, modification or amendment is in writing and signed by RedCart Solutions and Customer.

Section 7.05 — Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.

Section 7.06 — Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision thereof.

Section 7.07 — Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Section 7.08 — Governing Law and Venue: Any dispute relating in any way to this Agreement or Customer’s use of RedCart Software shall be submitted to confidential arbitration in Ramsey County, Minnesota, except that, to the extent Customer has in any manner violated or threatened to violate RedCart Solution’s intellectual property rights, RedCart Solutions may seek injunctive or other appropriate relief in any state or federal court in the State of Minnesota, and Customer consents to exclusive jurisdiction and venue in such courts. Arbitration under this provision shall be conducted by a single arbitrator under the rules then prevailing of the National Arbitration Forum. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

Section 7.09 — Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural as the context shall require.

Section 7.10 — Bankruptcy: If RedCart Solutions must institute, defend, appear or attend a bankruptcy proceeding as a result of the filing of bankruptcy by Customer, fees and expenses shall be paid by Customer. If Customer has a bankruptcy proceeding filed against it, RedCart Solutions shall recover attorney fees, expert witness fees, and other costs incurred by RedCart Solutions in connection with the bankruptcy proceeding, hearing or trial.

Section 7.11 — Waiver: Any waiver of a provision of this Agreement by RedCart Solutions shall not be binding unless such waiver is in writing and signed by RedCart Solutions. Waiver by RedCart Solutions of any breach of this Agreement shall not constitute waiver of any other breach. Any failure by RedCart Solutions to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.

Section 7.12 — Relationship of the Parties: It is agreed that the relationship of RedCart Solutions and Customer is primarily that of licensor and licensee or seller and customer respectively. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.

Section 7.13 — Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to the other under this Agreement are true, correct and accurate as of the Effective Date to the best of their knowledge.

Section 7.14 — Litigation Expense: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).

Section 7.15 — Equitable Remedies: The parties hereby acknowledge that damages at law are an inadequate remedy to RedCart Solutions. RedCart Solutions shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of this Agreement by Customer.

Section 7.16 — Security of Personal Information: The security of Customer’s personal information is important to RedCart Solutions, which follows generally accepted industry standards to help protect Customer’s personal information. For instance, when Customer enters sensitive information (such as a credit card number) on our registration or order forms, RedCart Solutions encrypts that information using secure socket layer (SSL) technology. No method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, while RedCart Solutions strives to protect Customer’s personal information, RedCart Solutions cannot guarantee its absolute security. If a password is used to protect Customer’s account and personal information, it is Customer’s responsibility to keep Customer’s password confidential.

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