Subscription Services Agreement

(Last revised April 15, 2021)

PLEASE READ THIS SUBSCRIPTION SERVICES AGREEMENT CAREFULLY BEFORE USING THIS SERVICE. BY USING THE SERVICE OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT.

IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.

This Subscription Services Agreement (Agreement) is between Wheel Toolkit, LLC, a Wisconsin limited liability company (Retail Toolkit), and the customer agreeing to these terms (Customer).

1. SOFTWARE SERVICE. This Agreement provides Customer with a subscription for the access to and usage of an Internet based software service as specified on an order (Service).

2. USE OF SERVICE.

   a. Customer Owned Data. All data utilized by the Service from Customer’s point of sale system remains the property of Customer, as between Retail Toolkit and Customer (Customer Data). Customer grants Retail Toolkit the right to use the Customer Data solely for purposes of performing under this Agreement.

   b. Access and Usage. Customer may allow its contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this Agreement by its contractors.

   c. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Retail Toolkit promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s user guide and applicable law.

   d. Retail Toolkit Support. Retail Toolkit provides Customer with email support as part of the Service. Customer may purchase additional tiers of support, if desired, on an order. Email support and the additional tiers of support are described under the terms of Retail Toolkit’s Customer Support Policy (Support) which is located at retailtoolkit.com/support

3. NO WARRANTY. ANY SERVICE IS PROVIDED ‘AS IS’ WITH NO WARRANTY. RETAIL TOOLKIT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY SERVICE AND EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, INFRINGEMENT OF INTELLECTUAL PROPERTY, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE RETAIL TOOLKIT TAKES REASONABLE MEASURES TO SECURE THE SERVICE, RETAIL TOOLKIT DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED AND RETAIL TOOLKIT DISCLAIMS ANY SUCH GUARANTEE WHETHER EXPRESS OR IMPLIED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

4. PAYMENT. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this Agreement.

5. PRICING. Except as expressly set forth in this Agreement, all fees and costs, including, without limitation, subscription fees are nonrefundable during the term or any renewal term of the subscription for Services (whether monthly, annual or other term). Within thirty (30) days prior to the end of a term or the applicable renewal term, Retail Toolkit has the right to modify pricing for the Services upon written notice to the Customer. Customer shall have 15 days from the date of the notice of pricing change to reject the pricing and terminate this Agreement and the applicable order. If no rejection is received, the new pricing shall be effective for the applicable term. Upon the expiration any term of promotional or discounted pricing, the fees and rates shall automatically revert to the then-current non-promotional or non-discounted pricing for such Services without notice to Customer.

6. MUTUAL CONFIDENTIALITY.

   a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Retail Toolkit’s Confidential Information includes without limitation the Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below).

   b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

   c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

7. RETAIL TOOLKIT PROPERTY.

   a. Reservation of Rights. The software, workflow processes, user interface, designs, Software and Documentation (as defined below), Third Party Service (as defined below) and other technologies provided by Retail Toolkit as part of the Service are the proprietary property of Retail Toolkit and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Retail Toolkit and its licensors. Customer may not remove or modify any proprietary marking or restrictive legends in the Service, Software and Documentation, or Third Party Service. Retail Toolkit reserves all rights unless expressly granted in this agreement.

   b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service, Software and Documentation, or Third Party Service, or use them in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service or Third Party Service; (iv) attempt to gain unauthorized access to the Service or Third Party Service or its related systems or networks; (v) reverse engineer the Service, Software and Documentation, or the Third Party Service; or (vi) access the Service or Third Party Service, or use the Software and Documentation to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.

   c. Software and Documentation. All software provided by Retail Toolkit as part of the Service, and the Service documentation, sample data, marketing materials, training material and other material provided through the Service or by Retail Toolkit (Software and Documentation) are licensed to Customer as follows: Retail Toolkit grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software and Documentation, solely in connection with the Service.

   d. API. Retail Toolkit provides access to its application-programming interface (API) as part of the Service for no additional fee. Subject to the other terms of this agreement, Retail Toolkit grants Customer a non-exclusive, nontransferable, terminable license to interact with the API only with the Software as allowed by the API. Customer may not use the API in a manner--as reasonably determined by Retail Toolkit--that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with the API Policy or with any part of the API. If any of these occur, Retail Toolkit can suspend or terminate Customer’s access to the API on a temporary or permanent basis. Retail Toolkit may change or remove existing endpoints or fields in API results upon at least 30 days notice to Customer, but Retail Toolkit will use commercially reasonable efforts to support the previous version of the API for at least 6 months. Retail Toolkit may add new endpoints or fields in API results without prior notice to Customer. Retail Toolkit ‘WHEN AVAILABLE’ basis. Retail Toolkit has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.

   e. Hardware and Third Party Service. The Service interoperates with a piece of third party firmware and hardware/device (Third Party Service). Retail Toolkit grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use the Third Party Service, solely in connection with the Service. Customer is responsible for the full cost of repair or replacement of any or all of the Third Party Hardware that is damaged, lost, or stolen from the time Customer assumes custody until it is returned to Retail Toolkit. The Third Party Service is provided ‘AS IS’ WITHOUT WARRANTY. Retail Toolkit will provide basic support and maintenance for the Third Party Service. If for any reason Retail Toolkit or Customer cannot access or use the Third Party Service (including without limitation, change in terms or increase in fees charged by the third party service provider, or errors in the Third Party Service), Retail Toolkit may not be able to provide all of the functions of its Service. No refund or credit will be provided for temporary unavailability of any Third Party Services (for example, third party maintenance windows); provided however that, if access to the Third Party Service is permanently unavailable (other than as a result of the act or omission of Customer) then Customer may terminate the affected order and Retail Toolkit will provide a refund to Customer of any prepaid and unused fees for that order. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDY AND RETAIL TOOLKIT’S SOLE LIABILITY WITH RESPECT TO THE THIRD PARTY SERVICE.

   f. Anonymized Data. During and after the term of this agreement, Retail Toolkit may use and owns all anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes.

8. TERM AND TERMINATION.

   a. Term. This Agreement continues until the later to occur of (1) all orders have terminated, (2) the date of the end of the term or renewal term, or (3) date of termination if terminated in accordance with this Section 8.

   b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

   c. Return Retail Toolkit Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Retail Toolkit for any unpaid amounts, and destroy or return all property of Retail Toolkit. Upon Retail Toolkit’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

   d. Suspension for Violations of Law. Retail Toolkit may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. Retail Toolkit will attempt to contact Customer in advance.

   e. Suspension for Non-Payment. Retail Toolkit may temporarily suspend the Service if Customer is more than 10 days late on any payment due pursuant to an order.

9. LIABILITY LIMIT.

   a. EXCLUSION OF INDIRECT DAMAGES. Retail Toolkit is not liable for any indirect, special, incidental orconsequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss.

   b. TOTAL LIMIT ON LIABILITY. Retail Toolkit’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 6 month period prior to the event that gave rise to the liability.

10. GOVERNING LAW AND FORUM. This agreement is governed by the laws of the State of Wisconsin (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Milwaukee County, WI and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

11. OTHER TERMS.

    a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by Retail Toolkit. No waiver is effective unless the party waiving the right signs a waiver in writing.

    b. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.

    c. Independent Contractors. The parties are independent contractors with respect to each other.

    d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.

    e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

    f. No Additional Terms. Retail Toolkit rejects additional or conflicting terms of any Customer form-purchasing document.

    g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.

    h. Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.

    i. Feedback. If Customer provides feedback or suggestions about the Service, then Retail Toolkit (and those it allows to use its technology) may use such information without obligation to Customer