Terms & Conditions for the Use of the CXQuest Software Platform under the Pilot Program

CX Group Pilot Program License Agreement

THE LICENSED PRODUCT (AS DEFINED BELOW) IS PROVIDED UNDER THE FOLLOWING TERMS AND CONDITIONS AND ANY SUPPLEMENTAL TERMS REFERENCED BELOW. YOUR USE THE LICENSED PRODUCT IS CONDITIONED UPON YOUR ACCEPTANCE OF THIS LICENSE.

IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU MAY NOT USE OR COPY THE LICENSED PRODUCT AND YOU MUST REFRAIN FROM ACCESSING THE CXQUEST SYSTEM.

  1. SCOPE AND KEY TERMS. This Pilot Program License Agreement (this “License”) is between CX Group Inc., a Delaware corporation (“CX Group”), and the Customer with respect to the use of the Licensed Product during the Evaluation or Early Adoption Period. Capitalized terms used in this License and not otherwise defined elsewhere herein shall have the meaning as set forth below.

1.1       “Authorized User” means Customer’s employees or authorized contractors (a) whose duties require access to or use of the Licensed Product or Confidential Information for the benefit of that party; and (b) whose legal obligations to protect confidential and proprietary information require protection of the Licensed Product and Confidential Information to at least the same extent as set out in this License. For clarity, Customer shall not appoint a third party as an Authorized User.

1.2       “Customer” means the entity identified on the Pilot License Terms and Conditions to which this License is attached.

1.3       “Evaluation & Early Adoption Period” means the period set forth in the Pilot License Terms and Conditions in the Quotation to which this License is attached.

1.4       “Licensed Product” means: (a) the software, scripts, checkers and other files comprising the CXQuest proprietary software platform; (b) any authorization keys and passwords that CX Group may deliver to Customer from time to time in order to operate such software and carry out Customer’s evaluation of it; (c) all related user documentation, in written, electronic or other format, which describes the Licensed Product and its operation and which CX Group makes generally available to its licensed customers for use with the Licensed Product (“Documentation”); and (d) all updates, upgrade, bug fixes, patches and other modifications to the foregoing items provided by CX Group.

  1. LICENSE.

2.1       Limited Rights. Subject to Customer’s compliance with the terms and conditions of this License and the Pilot License Terms and Conditions to which this License is attached, CX Group grants Customer a nonexclusive, non-transferable, terminable, limited, non-sub-licensable license to use and operate the Licensed Product for the purpose of evaluating the Licensed Product’s capabilities as well as for productive use and for assisting CX Group with determining ideal application of the product to the retail industry.

2.2       Conditions. The Licensed Product is the proprietary information of CX Group or its suppliers who retain exclusive title to their intellectual property rights in the Licensed Product. Customer’s rights to the Licensed Product are limited to those expressly granted above and CX Group reserves all rights not expressly granted in this License. Any ambiguity in the scope of Customer’s rights with respect to the Licensed Product will be resolved in CX Group favor. The rights granted to Customer above are conditional upon Customer’s compliance with the following obligations: (a) Customer will not copy the Licensed Products or Documentation, in whole or in part, except as expressly authorized in this License; (b) Customer will not transfer, assign, lease, lend or rent the Licensed Products or Documentation, use them to provide service bureau, time-sharing or other services, or otherwise provide or make the functionality thereof available to third parties except as expressly authorized in this License; (c) Customer will not disassemble, decompile, reverse engineer, modify or create derivative works of Licensed Products or Documentation nor permit any third party to do so, except to the extent such restrictions are prohibited by applicable mandatory local law; (d) Customer will not allow access or use of the Licensed Product by, and will not display the Licensed Product’s user interfaces to, anyone other than the Authorized Users, without CX Group’ prior express written consent; (e) Customer will not disclose to any third party any comparison of the results of operation of CX Group’ products with other products; (f) Customer will not delete or in any manner alter the copyright, trademark or other proprietary rights notices appearing on the Licensed Product as delivered by CX Group. Customer will reproduce such notices on all copies Customer is authorized to make of the Licensed Product; (g) Customer will not run or operate the Licensed Product or try to access the Results once the Evaluation Period expires; (h) When the Evaluation Period expires, Customer will delete from its systems all copies of the Licensed Product in all forms and types of media; and (i) Customer will ensure that any of its employees with whom Customer shares information about the Licensed Product and Results all comply with the obligations set out in this License.

2.3       Keys and Access. CX Group agrees to provide Customer those authorization keys and/or passwords which are necessary to permit Customer to gain access to Licensed Product in accordance with this License. CUSTOMER AGREES AND ACKNOWLEDGES IT WILL NOT, AND WILL NOT PERMIT ANY EMPLOYEE OR DIRECT ANY AGENT OR THIRD PARTY TO OBTAIN ACCESS TO THE SYSTEM IN A MANNER WHICH MAY BE CONSTRUED AS, CIRCUMVENTING LAWFUL ACCESS. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED.

  1. CONFIDENTIALITY.

3.1 Confidential Information. “Confidential Information” means: (a) each party’s software products (including the Licensed Product), in byte code or source code form; (b) any authorization keys and passwords delivered in order to operate such products; (c) Documentation, product road maps and development plans, and product pricing information; (d) any results of operation of the Licensed Product; and (e) any business, technical or training information of a party that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the other party within thirty (30) days of such disclosure.

3.2       Exclusions. Confidential Information does not include information that: (a) is or becomes generally known or available to the public through no act or omission of the party receiving Confidential Information (“Receiving Party”); (b) is rightfully known by the Receiving Party prior to receiving such information from the other party (“Disclosing Party”) and without restriction as to use or disclosure; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information and without breach of this License; or (d) is rightfully received by the Receiving Party from a third party without restriction on use or disclosure. The existence of this License and the nature of the business relationship between the parties are not considered Confidential Information.

3.3       Use and Disclosure Restrictions. Receiving Party will not use the Disclosing Party’s Confidential Information except as necessary to exercise the rights granted under this License or to evaluate opportunities to license additional Licensed Product from CX Group pursuant to the applicable License, and will not disclose such Confidential Information to any person or entity except to its employees or Authorized Users. Without limiting the generality of the foregoing, Customer agrees that it will not post the Licensed Product, the Documentation, or any screenshots of the Licensed Product or results generated by the Licensed Product, on any network that is accessible by anyone other than the Authorized Users. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors that need to know in order to provide business advice to such party. In addition, each party may disclose the terms and conditions of this License: (i) as required under applicable securities regulations; and (ii) on a confidential basis to present or future providers of venture capital and potential private investors in or acquirers of such party.

3.4       Right of Equitable Relief. The parties acknowledge that violations of the covenants and obligations of this License may cause the non-breaching party irreparable injury for which an adequate remedy at law may not be available. Therefore, the non-breaching party shall be entitled to seek all remedies that may be available under equity, including immediate injunctive relief, in addition to whatever remedies may be available at law.

4. SERVICES. All services provided by CX Group in connection with this License or the Pilot Program Terms and Conditions to which this is attached shall be performed with the reasonable skill, care and diligence customary in the industry for such services.

5. NO OTHER WARRANTIES.

5.1       THE LICENSED PRODUCT IS BEING PROVIDED “AS IS.” CX GROUP AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY OR COMPLETENESS OF RESULTS, CONFORMANCE WITH DESCRIPTION, AND NON-INFRINGEMENT. CX GROUP AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.

5.2       LIMITATION OF LIABILITY. IN NO EVENT WILL CX GROUP OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR DAMAGES IN EXCESS OF ANY FEES PAID BY CUSTOMER FOR THE LICENSE PROVIDED HEREUNDER OR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS, REVENUE, GOODWILL, ANTICIPATED SAVINGS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF THIS LICENSE, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), FAILURE OF A REMEDY TO ACCOMPLISH ITS PURPOSE, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer acknowledges that CX Group would not be able to provide the Licensed Product without the limitations set forth in Section 5 herein. Customer is further bound by the limitation of liability stipulated in CX Group’s standard license agreement as published and updated from time to time under www.cxgroup.co/terms Section 13 should these provide further protection for CX Group. Customer may have other rights under applicable mandatory local laws. This License does not change Customer’s rights under applicable mandatory local laws if such laws do not permit it to do so.

  1.       INDEMNIFICATION FOR INFRINGEMENT:

6.1       CX Group shall defend (at its sole expense) Customer against claims brought against Customer by any third party alleging that Customer’s use of the Licensed product in accordance with the Pilot Program Terms and Conditions to which this License is attached and the Documentation, constitutes a direct infringement or misappropriation of a U.S. patent claim(s), copyright, or trade secret rights. Subject to Section 5.2, CX Group will pay damages finally awarded against Customer (or the amount of any settlement CX Group enters into) with respect to such claims, and will pay reasonable attorney’s fees incurred by Customer in participating in such defense at CX Group’s request. This obligation of CX Group shall not apply if the alleged infringement or misappropriation results from use of the Licensed Program in conjunction with any other software or service.

7. PAYMENT. Customer shall pay to CX Group the fees for the Pilot Program, in the amount as set forth in the Pilot Program Terms and Conditions or the attached Quotation to which this License is attached within thirty (30) days of receipt of invoice with respect thereto.

8. TERMINATION. CX Group may terminate this License and the Pilot Program at any time for material breach of the terms of this License by Customer. CX Group or Customer may terminate this License and the Pilot Program at any time without cause with a 30 days notice period.

7. GENERAL. Customer has no right to assign this License. This License shall be governed by the laws of the State of Florida. The Parties hereby agree that, with respect to any dispute relating to or arising from this Agreement, venue shall lie in any state or federal court located in, Florida, which courts shall also be deemed to have subject matter jurisdiction concerning any matter relating to or arising from this Agreement, and you hereby agree to take no action which seeks to contest or object to the validity of such jurisdiction or venue. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.