Software as a Service Agreement [US]

Terms and Conditions

1. Background

A. Flagship provides an in-store Visual Merchandising (VM) management Platform, or such other business as may be conducted by Flagship from time to time, either in retail or another industry.

B. The Platform allows the Customer to effectively manage and gain business insights into their in-store VM processes.

C. The Customer wishes to engage Flagship to license the Platform for use by the Customer, and Flagship agrees to provide the Services to the Customer on the terms as specified in this Agreement. Flagship has agreed to grant a License to the Customer for the purposes of utilizing the Platform (including the Products) and Services on the terms of this Agreement, and the Customer has agreed to accept the License in accordance with the terms of this Agreement.

D. By entering into this Agreement, the Customer acknowledges and agrees to be bound by Flagship's Privacy Policy, which is located on the Website, as may be amended by Flagship from time to time.

E. For the avoidance of doubt, the parties agree that in the event of any inconsistency between the Order Form and these Terms, the provisions of the Order Form shall prevail to the extent of the inconsistency.

2. Grant of License

2.1 Subject to the further terms and conditions set out in this Agreement, from the Effective Date, Flagship grants the Customer a temporary, royalty-free, non-exclusive, non-transferable, non-assignable right to use and exploit the Relevant IP within the Territory and use Flagship’s Trademarks and any further accompanying Documentation solely to enable the Customer to use the Platform (including the Products) and/or Services for the duration of the Term and to perform its obligations under this Agreement.

3. Term

Introductory Period

3.1 In the event the Customer elects to trial and evaluate the Platform (including the Products) during the Introductory Period, the License will commence on the Effective Date and will continue for the Introductory Period set out in Part 3 of the Order Form. Unless the Customer notifies Flagship in writing at any time during the Introductory Period that it wishes to terminate the License, the License will continue for the initial period set out in Part 3 of the Order Form (the “Initial Term”).

Initial Term and Renewal Term

3.2 Provided the License is not terminated in accordance with clauses 3.1, if applicable, or 10 the License will commence on the Effective Date and will continue for the Initial Term set out in Part 3 of the Order Form. The License will automatically renew for sequential one (1) year periods (each a “Renewal Term”) unless either party notifies the other party in writing at least forty-five (45) days prior to the end of the then current Term that it wishes the Term to expire at the end of the then current Term without the next automatic one (1) year renewal taking place. For the avoidance of doubt, the Introductory Period (if applicable) and the Initial Term, along with any applicable Renewal Term, are collectively referred to as the “Term”.

Non-Exclusivity

3.3 During the Term, the parties acknowledge and agree that the provision of the Platform (including the Products) and/or the Services shall be non-exclusive and does not restrict Flagship or any Affiliate of Flagship from contracting with any other person or entity for the distribution, performance or delivery of the Platform (including the Products) and/or Services.

4. Intellectual Property Rights & Copyright

Pre-Existing IP

4.1 A party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the date of this Agreement will not be altered, transferred or assigned by virtue of this Agreement.

Relevant IP

4.2 As between the parties, the Customer acknowledges and agrees that it is not acquiring any Intellectual Property Rights (other than the License) in or to the Relevant IP and the Trademarks, information or material (including Confidential Information) relating to the Platform (including the Products) and/or Services and that Flagship owns and retains title to all Relevant IP owned by Flagship (including Flagship Data).

4.3 The Customer acknowledges and agrees that any Flagship Data that is captured, collected and/or shared as a part of providing the Software:

(a) is Flagship's intellectual property, and the Customer has no proprietary right, title to, or interest in Flagship Data pertaining to the Software; and

(b) Flagship shall, in its absolute discretion, be entitled to use Flagship Data for any purpose as determined by Flagship in its absolute discretion.

4.4 The Customer acknowledges and agrees it must not take any step to invalidate or prejudice Flagship’s title thereto or to any Relevant IP owned by a third party, and licensed by Flagship to the Customer hereunder. When using the Platform (including the Products), the Customer must comply with applicable Laws, including, without limitation, the U.S. Copyright Act.

4.5 The Customer acknowledges and agrees that Flagship has entered into this Agreement in reliance on the assumption that the Customer’s utilisation of the Services will be in accordance with the terms of this Agreement.

4.6 This License is not a sale. Title, copyright and any other rights in the Relevant IP will remain with Flagship or its Affiliates (where applicable). Unauthorized copying of the Platform (including the Products) or failure to comply with the above restrictions will result in automatic termination of this Agreement.

4.7 Nothing in this Agreement affects the ownership of Moral Rights in the Software.

Retail Data

4.8 Flagship acknowledges and agrees that any Retail Data that is captured, collected and/or shared with Flagship during the Term is the Customer’s intellectual property, and Flagship has no proprietary right, title to, or interest in the Retail Data. The Customer grants or will procure for Flagship a right to use the Retail Data only for the purposes of this Agreement or as otherwise agreed between the parties acting reasonably.

4.9 For the avoidance of doubt, any Retail Data that is captured, collected and/or shared with Flagship will only be used by Flagship for the purpose of this Agreement and for benchmarking purposes (i.e., for determining how a store is performing against similar stores in the area), and such Retail Data obtained for similar stores shall be anonymized and aggregated in a way that is not identifiable to any one retailer.

Use of Derived Data

4.10 Flagship retains all rights, title and interest (including all Intellectual Property Rights) in and to any Derived Data.

4.11 Flagship may provide the Customer with access to certain Derived Data during the Term. Upon termination or expiry of this Agreement, the Customer may retain a copy of any Derived Data provided by Flagship, solely for its own internal business purposes.

4.12 The Customer must not:

(a) disclose, sell, license, distribute or otherwise make any Derived Data available to any third party, or

(b) use any Derived Data for the purpose of creating or training any competing product or service, without Flagship’s prior written consent, which may be granted or withheld in Flagship’s absolute discretion.

4.13 Nothing in this clause grants the Customer any ownership rights in the Derived Data.

Use of Trademarks

4.14 The Customer shall conform to the reasonable requirements of Flagship in relation to the use of any Trademarks on the Platform (including the Products) and any packaging and in all related promotional and advertising materials. Any goodwill or other benefit derived as a result of any use of any of Flagship’s Trademarks shall inure to the sole benefit of Flagship.

4.15 The Customer shall not, at any time during or after the Term:

(i) claim any right, title, or interest in or to, attempt to register in any jurisdiction, or do anything that may adversely affect the validity or enforceability of, any of the Trademarks; and/or

(ii) adopt, register or use in any manner whatsoever any name, mark, logo, title, expression, word, device, symbol, or combination thereof, which in any way imitates, resembles, dilutes, or is similar to any of the Trademarks. Furthermore, at Flagship’s reasonable request and expense, the Customer shall do all things necessary to assist Flagship in the protection of its Trademarks in the Territory.

5. Obligations and Acknowledgements of the Parties

Joint Obligations

5.1 The parties acknowledge and agree that:

(a) They will jointly work together to install the Products in accordance with the specifications and timeframes to be agreed between the parties, acting reasonably in all instances;

(b) they shall exercise all reasonable care and skill in performing their duties and obligations under this Agreement;

(c) they shall comply with all applicable federal, state, local and foreign laws (if applicable) in the Territory, constitutions, codes, statutes and ordinances of any governmental authority that may be applicable to the Customer, its activities under this Agreement, the Platform (including the Products) and/or Services, including all applicable taxation laws and regulations affecting the activities of either party under or in connection with this Agreement; and

(d) they will conduct their Business in a professional manner, in accordance with good business practice, and in a manner that reflects favorably at all times on each other, the Platform (including the Products), the Services and the good name, goodwill and reputation of each party.

Flagship Obligations

5.2 Flagship shall:

(a) provide the Customer and its personnel with such technical and marketing information, training and support as Flagship considers necessary to enable use of the Platform (including the Products) in the manner contemplated by the parties acting reasonably;

(b) take all reasonable steps to maintain all licenses to all Relevant IP not owned by Flagship necessary for the commercialization of the Platform (including the Products) in the Territory, and if Flagship is unable to maintain any such licenses, Flagship shall take all reasonable steps to promptly develop or obtain a license to alternative intellectual property that is at least comparable to such intellectual property to enable the continued commercialisation of the Platform (including the Products) in the Territory; and

Customer Obligations

5.3 The Customer shall:

(a) at all times exercise reasonable care in using the Platform (including the Products) and/or Services, including proper use and maintenance in accordance with Flagship’s reasonable instructions;

(b) not use the Relevant IP in any way that could damage the reputation of Flagship or the goodwill or the Intellectual Property Rights associated with the Relevant IP or to support any activities outside of the scope of the Business;

(c) not permit any third party to use the Relevant IP and/or Documentation, without the prior written consent of Flagship; and

(d) unless permitted by Law or as otherwise expressly permitted in this Agreement, the Customer, its Affiliates and Representatives must not, nor must the Customer, its Affiliates and Representatives authorize any third person to:

(i) reproduce, copy, download, scrape, store, publish, transmit, transfer, communicate, distribute, disseminate, sell, rent, lend or otherwise use the Platform (including the Products), in any form or by any means;

(ii) make the Platform (including the Products) available to any person other than an authorized user;

(iii) convert any and all material downloaded from the Software into an electronic format other than the one in which it was supplied;

(iv) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, or copy the Platform (including the Products) or otherwise attempt to discern the source code of the components of the Software or reproduce all or any portion of the said components;

(v) remove, alter, circumvent or tamper with any trademarks, copyright notices, copyright protection devices, disclaimers or other legal notices;

(vi) combine the whole or any part of the data available on the Software with any other software, data or material;

(vii) store or use any part of such data in an archival database or other searchable database except as forming part of any work product;

(viii) where applicable, remove any proprietary notices, labels or marks on the Platform (including the Products) or the Documentation; or

(ix) post the Software to any location that is electronically accessible to the general public, including, but not limited to: electronic bulletin boards, websites, and ftp sites.

The Customer’s use of the Software is strictly limited to the use in connection with its evaluation of the Platform (including the Products) and/or Services.

6. Fees and Expenses

6.1 In consideration for the License granted by Flagship to the Customer throughout the duration of the Term, the Customer shall pay Flagship fees (plus any applicable taxes) for the provision of the Services and/or the Platform (including the Products) as set out in Part 4 of the Order Form (Fees).

Upfront Fees

6.2 The Upfront Fees (if applicable) shall be invoiced to the Customer on the Effective Date and shall be non-refundable.

Introductory Fees

6.3 The Introductory Fees (if applicable) shall be invoiced to the Customer on the Effective Date. Thereafter, the Introductory Fees (if applicable) shall be invoiced to the Customer on the first (1st) day of each month for the duration of the Introductory Period.

Ongoing Fees

6.4 The Ongoing Fees shall be invoiced to the Customer on the Effective Date (if no Introductory Period is applicable) or on the first (1st) day after the end of the Introductory Period (if applicable). Thereafter, the Ongoing Fees shall be invoiced to the Customer on the first (1st) day of each month for the duration of the Term.

Store Licensing Terms

6.5 The Customer shall notify Flagship in writing of any additional Store that the Customer wishes to add to the Platform, and such Store shall be subject to Flagship's written approval and the applicable Fees set out in this Agreement.

6.6 Subject to clause 6.5, for each Store that is activated for use within the Platform during the Term, the Customer shall be charged the applicable Fees for:

(a) the entirety of the month in which the Store was activated (the Go-Live Month); and

(b) each subsequent month for the remainder of the Term.

6.7 For the avoidance of doubt, neither the Ongoing Fees nor the Introductory Fees will be calculated on a pro-rata basis from the date that the Store is activated.

6.8 Once a Store has been activated, the Customer remains liable to pay the applicable Fees for that Store for the remainder of the Term, regardless of whether the Store is active or not. The Store Licence for a deactivated Store may be transferred to another Store, provided that the Customer continues to pay the applicable Fees in accordance with the terms of this Agreement. Any such transfer is subject to Flagship’s prior written approval, which shall not be unreasonably withheld or delayed.

Payment Terms

6.9 Unless otherwise agreed between the parties in writing, any payment of Fees shall be made to Flagship within thirty (30) days after the date of receipt by the Customer of a tax compliant invoice from Flagship.

6.10 All payments made under this Agreement shall be made by such payment method as agreed between the parties into the account nominated by the party to which the payment is to be made.

6.11 After the Term, the Customer may not use or deal with the Platform (including the Products) in any way unless the Customer has agreed to fees payable to Flagship for use of the Platform (including the Products) on an ongoing basis.

Additional Services

6.12 Any fees for Additional Services requested by the Customer will be negotiated separately and agreed between the parties in writing.

7. Suspension or modification of the Products

7.1 Flagship may discontinue or revise any or all aspects of the Platform (including the Products) at its sole discretion and without prior notice to take account of (for example, but not limited to, changes in Law or circumstances relating to the Platform (including the Products)).

7.2 Flagship may suspend access to the Platform (including the Products), in whole or in part, until further notice, with immediate effect:

(a) to periodically maintain or improve the Platform (including the Products) and related systems;

(b) to comply with any order, instruction or request of any government, any emergency services organization, or other competent judicial, administrative or regulatory authority; or

(c) if Flagship believes that the Platform (including the Products) may be used in such a way as may constitute a breach of this Agreement.

7.3 Flagship shall use commercially reasonable efforts to minimise disruption to the use of the Platform.

8. Confidentiality

8.1 Each party must:

(a) not, without the prior written consent of the other party, use or disclose any of the other party’s Confidential Information except as expressly permitted to do so by this Agreement or as required by law or any regulatory authority;

(b) use the other party’s Confidential Information solely for the purposes of complying with its obligations and exercising its rights under this Agreement;

(c) implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the first-mentioned party’s possession or control; and

(d) return or, at the other party’s option, destroy all Confidential Information of the other party that is in the first-mentioned party’s possession or control upon request by the other party or the expiry, revocation or termination of this Agreement for any reason, provided that Flagship may retain copies of any Confidential Information to the extent required for legal, regulatory, or internal compliance purposes, and may also retain and use Confidential Information that has been de-identified and anonymized for benchmarking and analytical purposes.

8.2 A party may disclose the other party’s Confidential Information to the first-mentioned party’s employees, independent contractors, or professional advisors but only to the extent that they have an actual need to know the Confidential Information in order for the first-mentioned party to properly perform its obligations under this Agreement. The first-mentioned party must ensure that all such employees and professional advisors:

(a) comply with the obligations in this Agreement as if each of them was a party to this Agreement in its place; and

(b) do not do, or omit to do, anything which, if done or omitted to be done by it, would constitute a breach of this Agreement by it,

and the Customer acknowledges and agrees that the Customer will be responsible for, and liable to Flagship in respect of, the actions and omissions of any and all of the aforementioned employees and professional advisors in relation to such Confidential Information as if they were the Customer’s own actions or omissions.

8.3 This clause will survive the termination of this Agreement.

9. Disclaimer of Liabilities and Warranties

9.1 The Platform (including the Products) and accompanying Documentation are licensed “as is.”

9.2 Subject to clause 12.1, to the extent permitted by law, all implied warranties and conditions are excluded. In no event (including but not limited to any act or omission on Flagship’s part) will Flagship be liable to the Customer for any consequential, incidental or indirect damages (including damages for loss of business profits, business interruption, loss of business information and the like), whether foreseeable or unforeseeable, arising out of the use of or inability to use the Platform (including the Products), Documentation or accompanying written materials.

9.3 If any law or regulation (federal, state or local), confers rights and remedies on the Customer in relation to the provision by Flagship of the Platform (including the Products) which cannot be excluded, restricted or modified (“Non-excludable Rights”), Flagship does not exclude any Non-excludable Rights but Flagship does exclude all other conditions and warranties implied by custom, law or statute.

9.4 Except as provided for by the Non-excludable Rights:

(a) the Platform (including the Products) used by the Customer are provided without warranties of any kind, either express or implied;

(b) Flagship does not warrant that the Platform (including the Products) will be complete or free from all errors;

(i) failure to deliver the Services or Platform (including the Products) within a specified time period;

(ii) availability and delays in delivery of the Services or Platform (including the Products);

(iii) any failure or interruption of the Software;

(iv) damage caused by the Software due directly or indirectly to causes beyond the control of Flagship including, but not limited to, a Force Majeure Event;

(v) failures of third party providers; and/or

(vi) use, disclosure of or failure to protect any Personal Information provided by the Customer in breach of this Agreement or in contravention of the Customer’s privacy obligations (whether under applicable law, regulation or contract).

(d) Flagship does not warrant that information will continue to be available to Flagship to enable Flagship to keep the Platform (including the Products) up-to-date and the Customer shall be responsible to provide Flagship with any such information; and

(e) All representations are expressly excluded, and the Customer has not relied on any representations in trialling the Platform (including the Products).

9.5 To the fullest extent permitted by law, Flagship’s liability for breach of any implied warranty or condition which cannot be excluded, but can be limited, is limited, at Flagship’s option to supply of the Platform (including the Products) or provision of the Services again or paying for their resupply, and shall not in any event exceed the amounts actually paid by the Customer to Flagship during the six (6) month period immediately preceding the event giving rise to such liability.

10. Termination

Termination for Breach

10.1 Each party may terminate this Agreement with immediate effect by written notice to the other party if the other party materially breaches this Agreement, where:

(a) such breach is irremediable;

(b) if remediable, the other party fails to remedy the breach within thirty (30) days of written notice by the terminating party;

(d) a Force Majeure Event preventing the performance of this Agreement continues for more than ninety (90) Business Days.

Effect of Termination

10.2 Upon termination of this Agreement for any reason:

(a) The Customer’s access to the Platform (including the Products) will immediately cease, and Flagship may disable the Customer’s logins.

(b) Notwithstanding clause 10.2(a), for a period of thirty (30) days following termination or expiry (Access Period), the Customer will have limited access to the Platform solely for the purpose of exporting or downloading its Retail Data, at the Customer’s own cost. Following the Access Period, Flagship may delete or de-identify Retail Data in accordance with its data retention and deletion policies and any applicable laws.

Data Handling Following Access Period

(c) Following the Access Period, Flagship shall delete or irreversibly de-identify any Personal Information contained in the Retail Data in accordance with applicable privacy laws and its data retention and deletion policies, unless otherwise required by law.

(d) Subject to any applicable laws, Flagship may retain Retail Data that does not contain Personal Information, or that has been de-identified, in accordance with its data retention and deletion policies, as amended from time to time, for benchmarking or analytical purposes.

10.3 Any termination of this Agreement shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.

10.4 Any provision of this Agreement that ought by its nature to survive the termination of this Agreement, shall survive, as shall clause 4 (Intellectual Property Rights & Copyright); clause 8 (Confidentiality); clause 9 (Disclaimer of Liabilities and Warranties); clause 10 (Termination); clause 11 (Indemnity); clause 12 (Warranties, Exclusions and Limitation of Liability); and clause 13 (Privacy).

11. Indemnity

Indemnity for breach of Agreement

11.1 Subject to the limitations in clause 12.3, Flagship will indemnify and hold the Customer harmless against all direct Losses that may be suffered or incurred by the Customer arising out of, or in connection with, any material breach by Flagship of this Agreement.

11.2 Subject to the limitations in clause 12.3, the Customer will indemnify and hold Flagship harmless against all direct Losses that may be suffered or incurred by Flagship arising out of, or in connection with, any breach by the Customer of this Agreement.

Indemnity for third party claims

11.3 Customer shall indemnify and hold harmless Flagship from and against any Losses arising from unauthorized or improper use of the Relevant IP by Customer in violation of this Agreement or any instructions provided by Flagship from time to time in relation to the operation of the Platform and/or exploitation of the Trademarks. This indemnification obligation shall not apply to any Claims arising from (i) the Relevant IP itself infringing third party rights, (ii) Flagship's modification or alteration of the Relevant IP without Customer's prior written consent, which shall not be unreasonably withheld or delayed, or (iii) Flagship's use or misuse of the Relevant IP.

11.4 In the event of any third party claim arising for the purposes of clause 11.3, Flagship shall:

(a) notify the Customer of the third party claim in writing as soon as reasonably practicable after Flagship becomes aware of it; and

(b) before terminating this Agreement or bringing any Claim against the Customer, give the Customer a reasonable opportunity to:

(i) modify, alter or substitute the infringing part of the Relevant IP at the Customer’s own expense in order to avoid continuing infringement, or

(ii) procure the authority from the relevant third party to continue exploiting the infringing Relevant IP.

12. Warranties, Exclusions and Limitation of Liability

Flagship Warranties

12.1 Flagship, its Affiliates and its Representatives represent and warrant to the Customer that as of the Effective Date, the following warranties are true and correct and not misleading:

(a) Flagship is a duly incorporated company validly existing under the laws of the State of Delaware and has the power and authority to execute, deliver and perform its obligations under this Agreement;

(b) Flagship has the right to grant the License granted under clause 2.1; and

(c) the use by the Customer of the Relevant IP will not infringe any trademark or other intellectual property rights of any person, nor give rise to payment by the Customer of any royalty to any third party or to any liability to pay compensation.

Customer Warranties

12.2 The Customer, its Affiliates and its Representatives represent and warrant to Flagship that as at the Effective Date, the Customer is a duly incorporated company validly existing under the laws of its jurisdiction of incorporation and has the power and authority to execute, deliver and perform its obligations under this Agreement;

Limitation of Liability

12.3 Neither party will be liable to the other party for any special, indirect or consequential damages, loss or anticipated profits or loss of revenue, arising from this Agreement, however caused, whether in tort (including negligence), contract, statute, equity or otherwise.

13. Privacy

13.1 The Customer must use all reasonable endeavours to ensure that any Retail Data provided to Flagship does not contain Personal Information. To the extent that any Retail Data provided to Flagship includes Personal Information, the Customer warrants that it has obtained all necessary consents and provided all necessary notices to enable Flagship to collect, use, disclose, and otherwise handle such Personal Information in accordance with this Agreement. Flagship shall not be responsible or liable for any failure by the Customer to comply with its obligations under this clause, and the Customer indemnifies Flagship against any Losses sustained, incurred or suffered by Flagship arising as a result of the Customer’s breach of its obligations under this clause 13.1.

13.2 Without derogating from the above, both parties acknowledge and agree that: (a) Flagship will process Personal Information in accordance with its Privacy Policy and applicable privacy laws; and (b) Customer will comply with all applicable privacy laws in connection with its use of the Platform, Products and Services.

13.3 The Customer acknowledges and agrees that access to the Platform is subject to the Customer creating and maintaining a username and password. The Customer shall be responsible for maintaining the security of its password for the Platform, and Flagship will not be liable for any loss or damage arising from or in connection with the Customer’s failure to comply with this security obligation. The Customer agrees that Flagship will be entitled to assume that any person using the Platform with the Customer’s username and password is the Customer and the Customer will be required to notify Flagship immediately of any known or suspected unauthorised use of any password or any breach of security.

AI Use

13.4 The Customer acknowledges and agrees that the Services may incorporate artificial intelligence or machine learning functionality (AI Tools). In circumstances where Flagship uses AI Tools, Flagship shall use Retail Data in de-identified and anonymized form. Any insights, benchmarks or aggregated outputs derived from such use will be owned by Flagship.

14. General

Further assurances

14.1 Each party must (at its own expense, unless otherwise provided in this Agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this Agreement.

Press Release

14.2 Flagship may use the Customer’s name and logo for marketing and promotional purposes, including on Flagship’s website, social media channels, and in presentations. If Flagship wishes to use any material related to the Customer for any purposes except as provided under this Agreement, it must first obtain Customer’s express prior written approval, which approval shall not be unreasonably withheld or delayed.

Third parties

14.3 This Agreement is made for the benefit of the parties to it and their successors and permitted assigns and sub-licensees and is not intended to benefit, or be enforceable by, anyone else.

Costs

14.4 Except as otherwise expressly provided in this Agreement, each party must pay its own costs and expenses in respect of the preparation, negotiation and execution of this Agreement.

Relationship of the Parties

14.5 This Agreement does not create any partnership, joint venture, employment or agency relationship between the parties.

14.6 The Customer may not enter into any agreements or incur any liabilities on behalf of Flagship without Flagship’s prior written consent and may not represent to any person or entity that it has any authority to do so.

Entire Agreement

14.7 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorised representative of the party.

Severability

14.8 Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of the Agreement.

Waiver

14.9 No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this Agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this Agreement.

Notices

14.10 All notices which are required to be given under this Agreement must be in writing and must be sent to the address of the recipient set out on the first page of this Agreement or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (if sent by prepaid letter) or (if sent by email and unless agreed otherwise), when the email enters the recipient's mail server.

Assignment

14.11 The Customer shall not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of Flagship. Any purported assignment which violates this clause shall be null and void.

Amendment

14.12 General Right to Amend: Subject to clause 14.13, Flagship may amend these Terms at any time without prior notice.

14.13 Material Amendments: Any amendment that materially affects the Customer’s rights or obligations will take effect no earlier than twenty-one (21) days after notice is provided to the Customer, either by email or by posting a notice on the Website. The Customer may terminate this Agreement by providing written notice prior to the effective date of such amendment.

14.14 Non-Material Amendments: Amendments that are administrative in nature or do not materially affect the Customer’s rights or obligations will take effect immediately upon being published on the Website or otherwise notified to the Customer.

Counterparts

14.15 This Agreement shall be executed in counterparts by the respective parties, each of which, when so executed, shall be deemed to be an original, all of which, taken together, shall constitute one and the same Agreement, provided this Agreement shall be of no force and effect until the counterparts are exchanged.

Electronic exchange

14.16 Delivery of an executed counterpart of this Agreement by email in PDF or other image format or by electronic signature platform (e.g. DocuSign), will be equally effective as delivery of an original signed hard copy of that counterpart.

Dispute Resolution

14.17 The parties agree:

(a) to attempt in good faith to meet (in person or virtually, as may be convenient for both parties) to resolve any dispute between them in connection with any matter arising out of this Agreement;

(b) any agreement reached between the parties must be reduced to writing and will be binding on the parties;

(c) where a dispute cannot be resolved informally as between the parties, and a period of ten (10) Business Days has elapsed, the parties agree to submit any unresolved dispute to binding arbitration before either the American Arbitration Association or JAMS, utilizing one (1) arbitrator (and any expedited rules for arbitration that may be available), with the arbitration to take place in New York, New York (or virtually by video conference) with each party bearing the cost of their own legal fees and one-half of the arbitrator and arbitration association’s fees; and

(d) Notwithstanding the foregoing, nothing herein shall prevent the parties from seeking injunctive relief, with an application for any such relief being brought in the courts of the State of Delaware.

14.18 The parties otherwise agree to submit to the jurisdiction of the courts of the State of Delaware, in the event a dispute arising from this Agreement cannot be resolved.

Governing Law

14.19 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Delaware and solely limited to an action seeking injunctive relief pursuant to Section 14.15(d) above (or to enforce an arbitrator’s award), the parties agree to submit to the exclusive jurisdiction of the courts of the State of Delaware.

15. Definitions and interpretation

Definitions

15.1 In this Agreement, unless the context or subject matter otherwise requires:

Additional Fees means any additional charge or fee described in Part 4 of the Order Form that may be payable by the Customer to Flagship or to any third party, and which fees can be amended by Flagship from time to time.

Additional Services means any additional services that Flagship may offer to the Customer during the Term outside the scope of the Services, which the Customer may wish to purchase from Flagship (but is not obliged to do so).

Affiliate means in relation to a party, that party, or another company if that other company:

(a) holds a majority of the voting rights in it; or

(b) is a member of it and has the right to appoint or remove a majority of its board of directors; or

(c) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it; or

(d) if it is a subsidiary of a company that is itself a subsidiary of that other company.

Agreement means this Software as a Service Agreement, including these Terms, the Order Form and all schedules, exhibits and annexures attached to or incorporated by reference in this Agreement, as may be amended from time to time in accordance with the terms hereof.

Authorized Representative means any Representative that is authorized by the Customer and/or Flagship to enter into legally binding agreements on behalf of the Customer and/or Flagship.

Business means the business of operating, marketing, promoting, selling and maintaining the Platform (including the Products) and/or the Services.

Business Day means a day other than a Saturday, Sunday or public holiday in the United States.

Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whatsoever arising and whether present or future, fixed or unascertained, actual or contingent, whether at law, in equity, under statute or otherwise.

Confidential Information means information of every kind:

(a) which includes, but is not limited to, the Platform, the Products, the Services, Flagship Data, Retail Data, strategies, forecasts, projects, plans, documents and financial information of a party including, marketing information, computer records, software, trade secrets, drawings, designs, plans, concepts not reduced to product form and all other documents, records and information of a party which is of a confidential nature, including past, current or future affairs of either party and which, from its nature and content is or would reasonably be expected to be confidential; and

(b) which is the property of that party or any Affiliate or Representative of that party; and

(i) is disclosed in writing, orally or by any other means by that party or by any person on that party’s behalf to the party or an employee, officer or agent of the other party; or

(ii) comes to the knowledge of the other party or an employee, officer or agent of the other party by any means,

(c) but does not include information which is or becomes generally available to the public (other than as a result of the wrongful disclosure by a party or any Affiliate of the party) or information that a party is required to disclose by law or by a regulatory authority.

Customer means the customer referred to in Part 2 of the Order Form.

Derived Data means any data, analysis, report, metric or other output generated, created or derived through the use of the Platform or the Services, based on or using Retail Data.

Documentation means any operating manuals, training materials, user guides, technical documentation, brochures, instructional material, advertising literature, functional and technical drawings, videos, online tutorials, templates, tools, procedures, diagrams and such other materials provided to the Customer by Flagship from time to time to be used by the Customer in marketing and/or utilizing the Platform or otherwise to assist the Customer to accomplish the purposes of this Agreement.

Effective Date means the date set out in Part 3 of the Order Form, being the first day of either the Introductory Period (if applicable) or the first day of the Initial Term (if Introductory Period is not applicable).

Fees means the fees described in Part 4 of the Order Form and on the terms specified in clause 6.

Flagship means Flagship US, Inc. Referred to in Part 1 of the Order Form.

Flagship Data means any and all data relating to the Platform (including the Products) and/or Services provided to the Customer by Flagship, or that becomes available to the Customer as a consequence of its use of the Platform and/or Services, including data embedded in the Products, images acquired, analytics, metrics and reports or any other insights derived by using the Platform and/or Services, and including any Derived Data.

Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:

(a) acts of God, flood, storm, drought, earthquake or other natural disaster;

(b) epidemic or pandemic, including any industrial action or circumstances where there is Government enforced prohibition due to COVID-19 or any other pandemic or epidemic restricts the parties from fulfilling their obligations under this Agreement;

(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(d) nuclear, chemical or biological contamination or sonic boom;

(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent; and

(f) collapse of buildings, breakdown of plant or machinery, fire, explosion or accident.

Insolvency Event means any of the following:

(a) a person is or states that they are unable to pay from the person's own money all the person's debts as and when they become due and payable;

(b) a person is taken or must be presumed to be insolvent or unable to pay the person's debts under any applicable legislation;

(c) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;

(d) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven (7) days;

(e) a controller or analogous person is appointed in respect of any property of a person;

(f) a corporation or other entity is dissolved under applicable Law or notice of its involuntary dissolution is given to the corporation or other entity;

(g) a distress, attachment or execution is levied or becomes enforceable against any property of a person;

(h) a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person's creditors or members or a moratorium involving any of them;

(i) a person or entity commences bankruptcy or similar liquidation proceedings; or

(j) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a person.

Intellectual Property Rights means the trademarks, trade secrets, designs, patent and copyrights and any and all intellectual and industrial property rights throughout the world whether vested or contingent, including rights of any kind (whether registered or unregistered) in or relating to:

(a) inventions, technological innovations, discoveries and novel designs, protected formulae, formulations, trade secrets, recipes, processes, know-how, operating systems, whether or not registered or registrable as patents, innovation patents (or any similar or analogous rights) or designs, including developments or improvements of equipment, technology, business methods or techniques, illustrations, photographs;

(b) literary works, artistic works and any other works and subject matter in which copyright (including future copyright and rights in the nature of or analogous to copyright) may, or may upon creation of the works and subject matter, subsist anywhere in the world;

(c) trademarks, trade dress, and service marks, including goodwill in the business concerned in the relevant goods and/or services; and

(d) trade, business, company names or internet domain names,

irrespective of when or where such thing is created or developed.

Introductory Fees means the fees (if any) to be paid during the Introductory Period by the Customer to Flagship as specified in Part 4 of the Order Form and on the terms specified in clause 6.

Law or Laws includes:

(a) any treaty, statute, regulation, by-law, ordinance or subordinate legislation in force from time to time;

(b) the common law and the law of equity;

(d) any applicable industry code, policy or standard, in each case enforceable by law; and

(e) any applicable direction, policy, rule or order that is given in writing by a regulatory or administrative authority, in each case enforceable by law.

License means the license granted in clause 2.1.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:

(a) liabilities on account of tax;

(b) interest and other amounts payable to third parties;

(c) legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and

(d) all amounts paid in settlement of any Claim.

Media means the media on which the Software is recorded or printed.

Moral Right means:

(a) a right of attribution of authorship;

(b) a right not to have authorship falsely attributed;

(d) a right of a similar nature,

which is conferred by statute, and which exists or comes to exist anywhere in the world, in a deliverable form comprised within this Agreement.

Ongoing Fees means the ongoing fee to be paid by the Customer referred to in Part 4 of the Order Form and on the terms specified in clause 6.

Order Form means a document outlining the key terms of the engagement between Flagship and the Customer, executed by both parties.

Personal Information means any information relating to an individual; who can be identified directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person or the equivalent or corresponding definition under any applicable Law.

Platform means the platform owned by Flagship containing the Software that will be licensed to Customer pursuant to the terms of this Agreement.

Privacy Policy means the privacy policy of Flagship located via the domain https://www.flagship.ai/privacy-policy.

Products means the Software, the Documentation, and any other products, features, updates, or enhancements that may be introduced by Flagship from time to time to be utilized via the Platform, at Flagship's sole discretion.

Relevant IP means all Intellectual Property Rights in the Platform (including the Products), Services, Flagship Data, derivative works, improvements, modifications, Derived Data and any related documentation or information provided by Flagship in connection with the Platform (including the Products), the Services and this Agreement.

Representatives means, in respect of a person (including Flagship and the Customer), the employees, officers, directors, consultants, agents and professional advisers of that person; and “Representative” shall have the same meaning.

Retail Data means any data and/or information that the Customer would otherwise be able to access without using the Platform and/or Services, including information regarding the sales, inventory, and operations, and which does not include Flagship Data and/or Derived Data.

Services means the provision of Products to the Customer via the Platform including set-up and management of the Products as further set out in Part 6 of the Order Form.

Software means Flagship’s proprietary software included in the Relevant IP and includes, systems and updates, mathematical codes, binary or source code, object code, Flagship Data, programs, routines and other functions associated with the Business of Flagship, including data management, cloud-based data, analytics outputs, operating systems, software patches, updates, fixes, add-on components, and/or web services, and as otherwise provided or in Part 5 of the Order Form.

Store means a Customer store that has been activated for use within the Platform or such other store(s) as otherwise agreed between the parties in writing; and “Stores” shall have the same meaning.

Term means the term prescribed in clause 3.

Territory means the United States together with any other countries or regions that the parties agree shall be included in the Territory from time to time by agreement in writing.

Trademarks means trademarks, trade names, logos, design marks, service marks, service names, trade dress, and brand names of Flagship.

Upfront Fees means the upfront fee (if any) to be paid by the Customer to Flagship upon execution of this Agreement, as specified in Part 4 of the Order Form and on the terms specified in clause 6.

Website means Flagship’s website located via the domain https://www.flagship.ai/.

Interpretation

15.2 In the interpretation of this Agreement, unless the context or subject matter otherwise requires:

(a) the singular includes the plural and vice-versa;

(b) words importing a gender include other genders;

(d) other grammatical forms of defined words or expressions have corresponding meanings;

(e) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;

(f) each clause or sub-clause in a list is to be read independently from the others in the list; and

(g) a reference to:

(i) this Agreement includes the Order Form, all Schedules, exhibits and annexures to this Agreement;

(ii) a court is to a United States court of competent jurisdiction;

(iii) writing includes printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;

(iv) any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinated legislation issued or made under, that legislation or legislative provision;

(v) a document or agreement includes a reference to that document or agreement as novated, altered or replaced from time to time;

(vi) natural persons includes corporations, trusts, associations, partnerships, bodies corporate, unincorporated associations, authorities and other legal entities, and where necessary, includes successor bodies;

(vii) any party includes that party's executors, administrators, substitutes, successors and permitted assigns;

(viii) a time or a date is a reference to the time and date in New York, New York (unless otherwise agreed by the parties in writing);

(ix) a day, month or year is a reference to a calendar day, calendar month or calendar year;

(x) $, USD or dollars is to the lawful currency of the United States.

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Updated: 2025-10-30 16:42 AEDT

[Terms and Conditions - Flagship (US) (23 October 2025) Clean]