These General Terms and Conditions (“Terms”) between (“Operator”) and Micromart Inc. (“Micromart”), together with the terms and conditions on any purchase order referencing these Terms (each such order, an “Order”), forms the agreement (this “Agreement”) that governs Micromart’s provision of the following products and services (collectively, the “Micromart Solution”): (a) smart pantries, fridges or freezers and any related equipment, components, and parts, in each case, as set out in an Order (collectively, the “Smart Store Equipment”); (b) food packaging (“Food Packaging”) set out in an Order; (c) firmware installed on Smart Store Equipment (“Smart Store Product Firmware”); (d) a software as a service offering that interfaces with the Smart Store Equipment and is comprised of the Operator Interface and the End User Interface (“Software Services”); and (e) installation services, product support, and marketing services set out in an Order (collectively, the “Professional Services”). Each of Micromart and Operator will individually be referred to as a “Party” and jointly as the “Parties”.
The Agreement constitutes the sole and entire agreement between the Parties with respect to the Micromart Solution. The Agreement excludes any of the Operator’s general terms and conditions of purchase or any other document issued by Operator in connection with an Order.
1. Micromart Solution
Micromart will provide the Micromart Solution to Operator on the terms and conditions set out in this Agreement. Operator may make available certain food, beverage and other products to end users using the Smart Store Equipment (such food, beverage and other products, the “Products”, and each such end user, an “End User”) and End Users may purchase such Products through the Software Services. The Products may include ready-to-heat meals, curated ready-to-eat meals, baked goods, and curated cold beverages (the “Food Products”).
2. Permitted Users and End Users
The Software Services will be comprised of two components: (a) a user interface made available through a web portal that may be used by employees and contractors of Operator that Operator has authorized to use the Software Services (such user interface, the “Operator Interface”, and each such employee or contractor, a “Permitted User”); and (b) a user interface made available on the Smart Store Equipment that may be used by End Users to purchase Products (such user interface, the “End User Interface”). Notwithstanding the use of the terms “Operator”, “Permitted User” or any combination thereof in this Agreement, references in this Agreement to Operator will be interpreted: (i) to include its Permitted Users to the extent that the term or condition referencing Operator applies to the Permitted User’s use of the Micromart Solution; and (ii) where there is a reference to a grant by, or obligation of, Operator, the reference to Operator means that Operator will grant for itself or perform the act or obligation itself, or, where applicable, cause the Permitted User to make the grant or perform the act or obligation, as applicable.
3. Product Packaging
Operator acknowledges and agrees that the distribution of certain Products, including Food Products, using the Smart Store Equipment may require that such Products be packaged and labelled using packaging and labelling that is compatible with and can be read by the Smart Store Equipment, Smart Store Product Firmware, and Software Services.
4. Products and End User Responsibility
Micromart will not be responsible to Operator or liable for any of the following: (a) supplying or selling Operator any of the Products to be sold by Operator using the Micromart Solution; (b) supplying or selling Operator any packaging or labelling for the Products, other than Food Packaging mutually agreed to by the Parties; (c) managing inventory or the delivery of Products; (d) customer service and support for End Users; or (e) creating, maintaining, or uploading any pictures, descriptions, or other information related to the Products to the Software Services.
5. Fees and Payment Terms
(a) Fees Payable by the Operator
(i) Operator will pay Micromart the following fees in accordance with the payment terms set out in an applicable Order in consideration for the Micromart Solution (“Fees”): (i) a Software Service fee in an amount equal to $90.00 per month for the first piece of Smart Store Equipment at a location and $30.00 per month for each additional piece of Smart Store Equipment at the same location; and (ii) any additional fees set out in an Order.
(ii) The Fees do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Operator will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Micromart.
(iii) If Operator fails to pay any Fees in accordance with the payment terms set out in the applicable Order, then Micromart may: (A) charge Operator interest on such late Fees at a rate of 12% per annum calculated daily and compounded monthly; or (B) withhold and retain the Fees owed to Operator from the Product Fees collected by Micromart on behalf of Operator if Micromart is processing payments from End Users on behalf of the Operator as set out in Section 5(b). For clarity, Micromart will have no obligation to remit to Operator any Product Fees that are withheld and retained by Micromart due to Operator’s failure to pay any Fees in accordance with the terms set out in any applicable Order.
(iv) In addition to all other remedies available under this Agreement, Micromart will be entitled to suspend the delivery of or performance of any part or portion of the Micromart Solution, as applicable, if Operator fails to pay any amounts when due hereunder and such failure continues for 30 days following written notice thereof.
(v) Micromart will be entitled to change the Fees, including any Payment Processing Fee, upon notice to Operator not less than 60 days prior to the end of the Initial Term or then-current Renewal Term.
(vi) Customer will not withhold or set off any amounts due under this Agreement.
(b) Payment Processing Fees
(i) Operator may configure the Software Services to charge End Users a fee for the purchase of each Product (“Product Fees”). Micromart will be entitled to the following percentage of the Product Fees for each Product purchased by an End User using the Micromart Solution (“Payment Processing Fee”): (A) $0.15 plus 4% of the Product Fee charged to End Users for each Product order that is $8 or more; and (B) $0.10 plus 4% of the Product Fee charged to End Users for each Product order that is less than $8.
(ii) If the Order states that Micromart will process payments from End Users on behalf of the Operator, then Operator grants Micromart exclusive rights to bill End Users for the Product Fees using a third-party payment processor. At the frequency specified in the Order, Micromart will remit to Operator the Product Fees collected during the applicable frequency, less any applicable taxes on such Product Fees and less the Payment Processing Fee. Micromart will not be responsible for and will have no liability for the remittance of any Product Fees to Operator for amounts that Micromart has not collected from End Users.
(iii) If Micromart is processing payments from End Users on behalf of the Operator, Operator appoints Micromart as its limited payment agent to collect funds from End Users on its behalf. Subject to the terms of this Agreement, Micromart will remit to Operator, in accordance with the terms set forth hereunder, payments received less any amounts owing to Micromart or as otherwise due or provided in this Agreement. Payment from End Users shall be considered the same as payment made directly to Operator. Upon Micromart’s receipt of funds from an End User, each such End User’s payment obligation to Operator for an amount equal to the funds remitted to Micromart is terminated (and Operator shall ensure to provide such customer the goods and services purchased with such funds), and Micromart is instead responsible for remitting such funds to Operator, subject to the terms of this Agreement and any reductions, set offs and/or deductions contemplated hereunder. Operator’s recourse is only against Micromart if Micromart fails to remit funds final and settled funds it receives from End Users pursuant to the terms hereof.
(iv) If the Order states that Operator will process payments from End Users, then Operator will be responsible for collecting all Product Fees from End Users and paying Micromart the Payment Processing Fee.
(v) Any disputes, concerns, or inquiries from End Users related to the Product Fees will be the responsibility of Operator, including any requests from an End User to receive a refund of Product Fees.
6. Disclaimer of Warranties
Except for the express warranties set forth in this agreement, micromart does not warrant that the micromart solution will be uninterrupted or error free, or that all errors can or will be corrected; nor does it make any warranty as to the results that may be obtained from use of the micromart solution. Except as specifically provided in this agreement, the micromart solution is provided “as is” and “as available” and micromart hereby disclaims all express, implied, collateral or statutory warranties, representations and conditions, whether written or oral, including any implied warranties or conditions of merchantability, merchantable quality, or fitness for a particular purpose or use.
7. Intellectual Property Rights
(a)“Intellectual Property Rights” means any and all proprietary rights anywhere in the world provided under: (i) patent law; (ii) copyright law (including moral rights); (iii) trademark law; (iv) design patent or industrial design law; (v) trade secrets; or (vi) any other statutory provision or common law principle applicable to this Agreement, and includes applications for rights, registrations of rights, agreements, licences, renewals, and extensions of rights, whether registered or unregistered.
(b) Micromart is and will be the exclusive owner of all Intellectual Property Rights in and to: (i) the Software Services; (ii) the Smart Store Product Firmware; (iii) Micromart’s Confidential Information; (iv) Aggregated Data (as defined in Exhibit B); (v) the Smart Store Equipment; (vi) anything developed or delivered by or on behalf of Micromart under this Agreement; and (vii) any modifications to the foregoing (collectively, the “Micromart Property”). All right, title and interest, including all Intellectual Property Rights, in and to the Micromart Property will vest in Micromart, immediately upon creation and regardless of the state of completion of such Micromart Property. Operator will acquire no rights to any Micromart Property, other than the rights expressly granted under or in respect of this Agreement.
8. Indemnification
(a) Micromart’s Intellectual Property Indemnity. Micromart will indemnify, defend, and hold harmless the Operator and its officers, directors, employees and agents (each, an “Operator Indemnitee”) from and against any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses (“Losses”) incurred by an Operator Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party that arise from or relate to any allegation that the Software Services infringe any third-party Intellectual Property Rights. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) Modification of the Software Services other than by Micromart or with Micromart’s express written approval; (B) unauthorized use of the Software Services; or (C) Operator indemnification obligation set out in this Agreement.
(b) Operator Indemnity. Operator will defend, indemnify and hold harmless Micromart, and its officers, directors, employees and agents (each, a “Micromart Indemnitee”) from and against any and all Losses incurred by a Micromart Indemnitee arising out of or relating to any Action that arises from or relates to: (i) Operator Data; (ii) unauthorized use of the Micromart Solution by Operator or any Permitted User, including using the Micromart Solution (or any part thereof) in combination with any third party software, application or service; (iii) the Products; and (iv) disputes from End Users relating the Products, including related to the Product Fees. The term “Operator Data” means any data, information, content, records and files that Operator (or any of its Permitted Users) loads or enters into the Operator Interface, other than any Aggregated Data.
9. Limitation of Liability
(a) Subject to Section 9(d), in no event will either Party be liable to the other Party for any: (i) consequential, indirect, incidental, special, exemplary or punitive damages; (ii) business interruption; or (iii) costs for the procurement of substitute products or services arising out of or in any way related or connected to this Agreement, regardless of cause of action or the theory of liability, whether in contract, tort (including negligence), or otherwise, and even if notified in advance of the possibilities of such damages or if such damages could have been reasonably foreseen.
(b) Subject to Section 9(d), in no event will either Party’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the amount of fees paid or payable to Micromart in connection with this Agreement in the 12-month period immediately preceding the event giving rise to the claim.
(c) Notwithstanding Section 9(b) and subject to Section 9(d), in no event with Micromart’s aggregate liability arising out of or related to a Security Incident resulting from Micromart’s failure to comply with its obligations under this Agreement exceed three times the amount of fees paid or payable to Micromart in connection with this Agreement in the 12-month period immediately preceding the event giving rise to the claim.
(d) Sections 9(a), 9(b) and 9(c) will not apply to limit: (i) either Party’s liability or obligations under Section 8; (ii) Operator’s liability arising from a breach of Section 13.2; (iii) Operator’s liability arising from a breach of Section 2 of Exhibit A or Section 1(b) or Section 4 of Exhibit B; (iv) Operator’s payment obligations under this Agreement; and (v) either Party’s liability arising from its Gross Negligence or Wilful Misconduct. The term “Gross Negligence or Wilful Misconduct” means any act or failure to act in breach of a duty of care that was intended to cause harm, which rises to the level of intentional wrongdoing, or was in reckless disregard of a wanton indifference to the harmful and foreseeable consequences of such act or failure to act, but does not include an act or failure to act that constituted merely a lack of due care (or a contractual breach alone).
10. Subcontracting
Micromart may delegate or subcontract all or any part of the Micromart Solution to any third party without Operator’s consent.
11. Term
This Agreement will commence on the Effective Date and continue to be in effect for a period of one month (the “Initial Term”), unless terminated earlier in accordance with this Agreement. This Agreement will automatically renew for successive periods of one month (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the Initial Term or then-current Renewal Term.
12. Termination
Termination. In addition to any remedies that may be provided under the Agreement, either Party may terminate the Agreement with immediate effect upon written notice to the other Party, if the other Party: (i) materially breaches the Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files a petition to bankruptcy, receivership, reorganization, arrangement or assignment for the benefit of creditors.
13. Confidential Information
(a) Definitions
For the purposes of this Agreement, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser, or any of its licensors or licensees, that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants
Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
(c) Exceptions to Confidentiality
Notwithstanding Section 13(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court, or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Micromart, to potential assignees, acquirers or successors of Micromart, if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Micromart.
(d) Return or Destruction of Confidential Information
Operator will, upon Micromart’s request, return or destroy all tangible copies of Micromart’s Confidential Information and permanently delete all digital copies of Micromart’s Confidential Information.
13.2 Personal Information
Each Party will comply with all applicable federal, provincial and local laws, rules and regulations concerning Personal Information (collectively, “Privacy Laws”). The Parties will provide reasonable assistance to each other in order to allow the Parties to comply with their respective obligations under Privacy Laws. The Operator understands that Personal Information, including the Personal Information of End Users, will be treated in accordance with Micromart’s privacy policy.
13.3 Micromart Obligations
To the extent that Micromart receives Personal Information in the course of providing the Micromart Solution under this Agreement, Micromart will:
(a) only Process Personal Information for the purposes of performing its obligations and exercising its rights under this Agreement or as otherwise instructed by the Operator in writing from time to time;
(b) not disclose any Personal Information to any third party except as contemplated by this Agreement or with the prior written consent of the Operator;
(c) where any disclosure or transfer of Personal Information is required by law, unless prohibited by applicable law, promptly notify the Operator in writing before complying with any such requirement for disclosure;
(d) implement commercially reasonable physical, technical and administrative and other organizational measures aimed at safeguarding the Personal Information against loss, theft, damage or unauthorized or unlawful access or processing;
(e) limit access to Personal Information only to those employees and sub-processors who need to have access to the Personal Information for the purposes of Micromart performing its obligations and exercising its rights under this Agreement;
(f) notify the Operator at the first reasonable opportunity upon Micromart becoming aware of, or suspecting, any loss, theft, damage or unauthorized or unlawful Processing of Personal Information, and comply with all commercially reasonable instructions of the Operator in connection therewith; and
(g) upon the termination of this Agreement, return (or, upon the written instruction of the Operator, securely dispose of) all Personal Information in the possession or control of Micromart, subject to a legal requirement to maintain such Personal Information.
The term “Process” or “Processing” means access, collection, use, modification, retrieval, transfer, communication, disclosure, storage, deidentification, anonymization, deletion, destruction, management or other handling.
14. Compliance with Law
Operator will, and will ensure its Permitted Users, use the Micromart Solution in compliance with all applicable laws, including all applicable laws related to the preparation, storage, packaging, labelling and sale of Products, including Food Products. Without limiting the foregoing, Operator will, and will ensure its Permitted Users, obtain all necessary permits, licenses, certifications, approvals, authorizations, and registrations to sell the Products using the Micromart Solution. Operator will not sell any Products that are illegal to sell using the Micromart Solution, including alcohol and cannabis products.
15. Feedback
Operator grants to Micromart and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Micromart Solution, any suggestion, enhancement request, recommendation, correction or other feedback provided by Operator or Permitted Users relating to the operation of Micromart Solution or any of Micromart’s other services (“Feedback”). Nothing in this Agreement will restrict Micromart’s right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to Operator or Permitted Users and without any obligation to Operator or any Permitted User. Micromart is not obligated to use any Feedback.
16. Dispute Resolution
In the event of a dispute between the Parties relating to this Agreement (“Dispute”) or its subject matter, a Party may provide a notice to the other Party regarding such Dispute (“Dispute Notice”). The Parties’ respective appointed representatives will: (i) seek to work together to develop a written and dated summary of the nature, extent, and magnitude of the Dispute and, where appropriate, how each Party sees resolution of the Dispute; and (ii) seek to amicably resolve or settle the Dispute in good faith by mutual agreement. If the Parties do not resolve the Dispute by negotiation, any of the Parties may refer the Dispute to a mediator acceptable to all Parties for non-binding mediation, and the Parties will share the costs of such mediation equally. If the Parties do not resolve the Dispute by mediation, within 30 days of the mediator receiving the Dispute Notice, each Party may take whatever steps are necessary to protect its interests.
17. Force Majeure
Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”). Notwithstanding the foregoing, a Force Majeure will not excuse Operator from its payment obligations under this Agreement.
18. Assignment
Operator will not transfer, sublicense or otherwise assign any of its rights or obligations under the Agreement, by operation of law or otherwise, without the prior written consent of Micromart. Any purported transfer, sublicense or assignment in violation of this Section 18 will be null and void. No transfer, sublicense or assignment will relieve Operator of any of its obligations hereunder. Micromart may at any time assign, transfer or subcontract any or all of its rights or obligations under the Agreement without Operator’s prior written consent.
19. Export Regulation
The Micromart Solution may be subject to Canadian, United States, and other applicable export control laws. Operator will not, directly or indirectly, export, re-export or release the Micromart Solution to, or make the Micromart Solution accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. Operator will comply with all applicable federal laws, regulations and rules and complete all required undertakings (including obtaining any necessary export license or other governmental approval), before exporting, re-exporting, releasing or otherwise making the Micromart Solution available outside Canada, the United States, or the country Micromart otherwise shipped the Micromart Solution to pursuant to an Order.
20. Notices
All notices sent to either Party will be in writing and addressed to the receiving Party at the addresses set forth in the Order. Each Party may change its contact information for notice by giving notice thereof to the other Party. Notices sent will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid.
21. Miscellaneous
No waiver by any Party of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by the Party so waiving. The relationship between the Parties is that of independent contractors. All matters arising out of or relating to the Agreement will be governed by and construed in accordance with the laws of the State of Delaware and the federal laws of United States of America applicable therein, without giving effect to any choice or conflict of law provision or rule. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Any legal suit, Action or proceeding arising out of or relating to the Agreement will be instituted in the courts of the State of Delaware and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, Action or proceeding. This choice of jurisdiction does not prevent Micromart from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction. The rights and remedies under the Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. Any provision of the Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from the Agreement and all other provisions of the Agreement will remain in full force and effect. This Agreement (including all Orders and Exhibits attached hereto) constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral. To the extent of a conflict between these Terms and any Orders, unless the applicable Order expressly states that it modifies or varies these Terms, these Terms will prevail. No amendment, supplement, modification, waiver or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. The Parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the Parties further to negotiation, and were not imposed by either Party, even when drawn up by one of the Parties. The Parties further confirm that it is the express wish of all Parties that this Agreement, all documents related to this Agreement and all communications between the Parties in the context of the performance of this Agreement be in English only. Les Parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des Parties, même lorsque rédigées par l’une des Parties. Les Parties confirment également que c’est la volonté expresse des Parties que la présente entente, tout document s’y rattachant et toute communication entre les Parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.
22. Survival
Provisions of the Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement including, but not limited to, the following Sections: 6, 7, 8, 9, 12, 13.2, 19, and 21.
Exhibit A Firmware License Agreement
By using the Smart Store Product Firmware, Operator acknowledges that Operator has read, accepts and agrees to be bound by and comply with the terms and conditions set out in this End User License Agreement (“EULA”). This EULA forms part of the Agreement and is incorporated therein by reference. In the event of a conflict or inconsistency between this EULA and the Terms as they relate to the Smart Store Product Firmware, the EULA will govern.
1. Limited License
Subject to and conditional on Operator’s compliance with all terms and conditions set forth in the Agreement, Micromart hereby grants to Operator a limited, non-exclusive, non-transferable, and non-sublicensable license to execute one copy of the Smart Store Product Firmware, in executable object code form only, solely in the Smart Store Equipment and solely for use with the Smart Store Equipment.
2. Restrictions
Operator will not, and will not permit any Permitted Users or other third parties to, directly or indirectly: (a) make copies of the Smart Store Product Firmware; (b) use the Smart Store Product Firmware beyond the scope of the license granted in Section 1 of this EULA; (c) modify, translate, adapt, or otherwise create derivative works or improvements of the Smart Store Product Firmware; (d) combine the Smart Store Product Firmware or incorporate the Smart Store Product Firmware with any other programs; (e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Smart Store Product Firmware; (f) remove, delete, alter or obscure any Intellectual Property Right notices provided on or with the Smart Store Product Firmware; (g) rent, lease, lend, sell, resell, sublicense, assign, distribute, publish, transfer or otherwise make available the Smart Store Product Firmware, or any features or functionality of the Smart Store Product Firmware, to any third party for any reason, whether or not over a network or on a hosted basis; or (h) use or export the Smart Store Product Firmware in any manner that violates any applicable laws. Operator is responsible for all actions and omissions with respect to the Smart Store Product Firmware by any Permitted User or other person to whom Operator may provide access to or use the Smart Store Product Firmware, whether such access or use is permitted by or in violation of this EULA.
3. Automatic Updates
During the Term, Operator acknowledges and agrees that Micromart may, from time to time, automatically update the Smart Store Product Firmware. Operator consents to receive such automatic updates to the Smart Store Product Firmware without further providing consent each time. The Smart Store Product Firmware may: (a) automatically communicate with Micromart’s servers to deliver the update and provide Operator with Operator Data; and (b) affect preferences or data that is stored or processed through the Smart Store Product Firmware, including on the Operator Interface.
4. Term and Termination
This EULA and the license granted hereunder are effective on the date Operator first uses the Smart Store Product Firmware or Smart Store Equipment and will continue for as long as Operator owns or uses the Smart Store Equipment, unless terminated earlier in accordance with the Agreement or this EULA. Micromart may terminate this EULA and the license granted hereunder upon providing written notice to Operator if Operator fails to comply with the terms and conditions of the Agreement or this EULA. The provisions of Sections 1 and 2 of this Exhibit A will survive termination or expiration of this EULA together with such other provisions of this EULA which expressly or by their nature survive termination or expiration.
Exhibit B Software Service Terms
By using the Software Services, Operator acknowledges that Operator has read, accepts and agrees to be bound by and comply with the terms and conditions set out in these terms (“Software Service Terms”). These Software Service Terms form part of the Agreement and are incorporated therein by reference. In the event of a conflict or inconsistency between these Software Service Terms and the Terms as they relate to the Software Services, the Software Service Terms will govern.
1. Software Services
(a) Provisioning of the Software Services. Subject to Operator’s compliance with the terms and conditions of the Agreement, Micromart will make the: (i) Operator Interface available to Operator on the terms and conditions set out in these Software Service Terms for use by Operator in connection with the sale of Products using the Smart Store Equipment; and (ii) End User Interface available to End Users to enable End Users to purchase Products using the Smart Store Equipment. Operator is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ compliance with these Software Service Terms.
(b) Restrictions on Use. Operator acknowledges and agrees that it is responsible for the use by all Permitted Users in compliance with these Software Service Terms and the activities of all Permitted Users on the Operator Interface. Without limiting the generality of any of the foregoing, Operator must not itself, and will not permit others (including the Permitted Users) to: (i) sub-license, sell, rent, lend, lease or distribute the Operator Interface or any Intellectual Property Rights therein or otherwise make the Operator Interface available to others; (ii) use the Operator Interface to permit timesharing or service bureau use, or commercially exploit the Operator Interface; (iii) use or access the Operator Interface in violation of any applicable law or Intellectual Property Rights, in a manner that threatens the security or functionality of the Operator Interface, or for any purpose or in any manner not expressly permitted in these Software Service Terms; (iv) use the Operator Interface to create, collect, transmit, store, use or process any Operator Data: (A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (B) that Operator does not have the lawful right to create, collect, transmit, store, use or process; or (C) that violates any applicable laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); (v) modify the Operator Interface; (vi) reverse engineer, de-compile or disassemble the Operator Interface; (vii) remove or obscure any proprietary notices or labels on the Operator Interface, including brand, copyright, trademark and patent or patent pending notices; (viii) perform any vulnerability, penetration or similar testing of the Operator Interface; (ix) access or use the Operator Interface for the purpose of building a similar or competitive product or service; or (x) access or use the Operator Interface to upload and display any marketing advertising or material on the End User Interface that is not related to Operator’s Products.
(c) Suspension of Access; Modifications. Micromart may, at its discretion: (i) suspend Operator’s or End User’s access to or use of the Software Services or any component thereof: (A) for scheduled maintenance; (B) if Operator or any Permitted User violates any provision of these Software Service Terms; or (C) to address any emergency security concerns; and (ii) modify the Software Services. Any suspension of the Software Services by Micromart pursuant to these Software Service Terms will not excuse Operator or any applicable Permitted User from its obligation to make payments under the Agreement. Operator is required to accept all patches, bug fixes and updates made by or on behalf of Micromart to the Software Services.
2. Operator Data and End User Data
(a) Except as specifically set forth in the Agreement, nothing in the Agreement assigns or grants to Micromart any right, title or interest including any Intellectual Property Rights in or to Operator Data or End User Data. The term “End User Data” means any data, information, content, records, and files that an End User loads or enters into the End User Interface.
(b) Operator grants to Micromart a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit Operator Data solely to: (a) provide the Micromart Solution; (b) improve and enhance the Micromart Solution, and its other offerings; and (c) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Operator Data will not be used by Micromart for any purpose other than what is set out in this Section 2(b). Micromart may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Operator of any kind.
(c) Operator grants to Micromart a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, and transmit End User Data solely to provide the Software Services, including to provide any ancillary features of the Software Services such as Micromart’s theft detection algorithms. The foregoing applies unless Micromart has entered into separate terms and conditions with the applicable End User governing Micromart’s handling of such End User Data (“End User Terms”), in which case Operator acknowledges and agrees that Micromart may access, collect, use, process, store, disclose and transmit such End User Data in accordance with the End User Terms. Operator will be responsible for obtaining and providing all the necessary consents, rights, notices, and authority in and to the End User Data for Micromart to access, collect, use, process, store, disclose, and transmit the End User Data in accordance with this Section 2(b).
3. Operator User Account
Upon Operator’s request, Micromart will issue one or more administrator accounts to Operator that provides Operator with the capability to create user accounts (each, an “Operator User Account”) for use by a Permitted User. Operator will ensure that Permitted Users only use the Software Services through the Operator User Account. Operator will not allow any Permitted Users to share the Operator User Account with any other person. Operator will promptly notify Micromart of any actual or suspected unauthorized use of the Software Services. Micromart reserves the right to suspend, deactivate, or replace the Operator User Account if it determines that the Operator User Account may have been used for an unauthorized purpose.
4. Operator Warranty
Operator represents and warrants to and covenants with Micromart that the Operator Data and End User Data will only contain personally identifiable information (“Personal Information”) in respect of which Operator has provided all notices and disclosures (including to each Permitted User), obtained all applicable third-party consents and permissions, and otherwise has all authority, in each case as required by applicable laws, to enable Micromart to provide the Micromart Solution, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Micromart and to or from all applicable third parties.
5. Incident Response
Micromart will notify Operator at the first reasonable opportunity if it becomes aware of the loss, theft or unauthorized access to, use or disclosure of Operator Data or Operator’s Confidential Information in the custody or control of Micromart (a “Security Incident”). Micromart will use commercially reasonable efforts to address the Security Incident in a timely manner.
6. Operator Labelling
Operator grants to Micromart a non-exclusive, royalty-free, non-transferable, non-sublicensable right and license to use and display trademarks, logos, and other marks (the “Operator Marks”) on the Software Services. Operator acknowledges and agrees that the Software Services will contain both the Operator Marks and Micromart’s trademarks, logos, and other marks. All use and display of the Operator Marks will be in accordance with this Agreement and Operator’s brand guidelines. Micromart agrees it will not alter, modify, dilute or otherwise misuse any Operator Marks.
7. Product Purchase Processing
Each time an End User purchases a Product using the Smart Store Equipment, Micromart will determine the applicable Product Fees to be charged to such End User by first determining the types and quantities of Products purchased by such End User. In doing so, Micromart may use visual sensors contained within the Smart Store Equipment to determine which Products were purchased. Operator acknowledges that the use of sensors and other technology within the Smart Store Equipment may not always be accurate or error-free. If Operator believes that an error has been made by Micromart in calculating the Product Fee charged to an End User, Operator may notify Micromart of such error and the Parties will, in good faith, determine if an error has actually been made and how to resolve such error.
8. Support
Operator will have access to Micromart’s technical support services via email at support@micromart.com or https://support.micromart.com. Micromart will use commercially reasonable efforts to respond to support requests within one business day.
9. Micromart Application
During the Term, Micromart may make available to Operator and End Users a mobile application that interfaces with the Micromart Solution (“Micromart Application”). If Operator wishes to access and use the Micromart Application, Operator must enter into separate terms and conditions with Micromart that govern Operator’s access to and use of the Micromart Application (“Micromart Application Terms”). Operator acknowledges and agrees that: (a) Micromart will require each End User to enter into terms and conditions with Micromart in order for such End User to access and use the Micromart Application (“Micromart Application End User Terms”); and (b) any data or information that an End Users loads, makes available to, transmits to or enters into the Micromart Application, or otherwise provides to Micromart (“Micromart Application End User Data”) will be used by Micromart in accordance with the Micromart Application End User Terms. Operator will not acquire any rights to the Micromart Application End User Data, other than the rights that may be expressly granted by Micromart to Operator in the Micromart Application Terms.
Exhibit C Equipment and Shipping Terms
1. Delivery Date
Micromart will deliver the Smart Store Equipment on the date specified in the Order or as otherwise agreed in writing by the Parties (“Delivery Date”). If no Delivery Date is specified, Micromart will deliver the Smart Store Equipment within a reasonable time after the Order has been executed. All Smart Store Equipment will be delivered to the address specified in the Order (“Delivery Location”) during Operator’s normal business hours or as otherwise agreed to by the Parties. Delivery of the Smart Store Equipment will be made as set out in the applicable Order. Title to the Smart Store Equipment passes to Operator on the later of: (a) delivery of the Smart Store Equipment to the Delivery Location; and (b) receipt by Micromart of payment in full of amounts due for the Smart Store Equipment.
2. Smart Store Equipment Warranties
Micromart warrants that (collectively, the “Limited Warranty”): (a) the fridge compressor that is provided as part of the Smart Store Equipment will be free from significant defects for a period of five years following the Delivery Date (the “Compressor Warranty Period”); and (b) all other Smart Store Equipment will be free from significant defects for one year following the Delivery Date (the “Other Equipment Warranty Period”). Operator’s sole remedy arising from a breach of the Limited Warranty will be for Micromart, in its sole discretion, to either replace or fix the defective Smart Store Equipment. In the event the applicable portion of the Smart Store Equipment does not comply with the Limited Warranty during the Compressor Warranty Period or the Other Equipment Warranty Period, as applicable, Operator may request that the applicable portion of the Smart Store Equipment be repaired or replaced by initiating a warranty claim via email to Micromart (a “Warranty Claim”). Micromart will respond to each Warranty Claim within one business day and in connection with such response Micromart may request that Operator provide information and documentation to validate any Warranty Claim. If Micromart approves a Warranty Claim, Operator must return the warranted product to the location Micromart designates and Micromart or the applicable original equipment manufacturer will repair or replace the warranted product. The cost of shipping the warranted product as part of a Warranty Claim will be borne by Micromart. The Limited Warranty is subject to the following conditions, limitations and exclusions: (i) the Limited Warranty extends to the Operator only and is not assignable or transferable; (ii) the Limited Warranty will not apply to any normal wear and tear or to any warranted product which has been subjected to misuse, abuse, rough handling, abnormal use, negligence, alteration, or accident or has had its serial number altered, removed or made illegible in any way; (iii) the Limited Warranty does not apply to defects or alleged defects caused by the use or modification of the warranted product in ways other than the intended use according to the documentation provided for such warranted product, including use of the warranted product with any item, accessory or service not intended to be used with the warranted product; and (iv) the Limited Warranty is valid only with authentic warranted product sold new and purchased from Micromart.
Exhibit C Equipment and Shipping Terms
1. Professional Services
Micromart will provide to Operator the Professional Services set out in an Order. Professional Services may include: (a) installing the Smart Store Equipment; (b) onboarding Operator and its Permitted Users; (c) providing training to Operator and its Permitted Users; (d) assisting with marketing to End Users; and (e) any other Professional Services specified in an Order.
2. Dependencies
Operator acknowledges and agrees that Micromart’s performance of the Professional Services is dependent on Operator’s performance of certain activities and tasks, as may be reasonably requested by Micromart, to facilitate Micromart’s timely performance of the Professional Services (“Dependencies”). Micromart will not be liable for any delay or non-performance of any Professional Services caused by Operator’s non-performance or inadequate performance of any Dependencies.
