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Syndigo MCA

MASTER CLIENT AGREEMENT

This Master Client Agreement (“MCA”) is entered into between Syndigo LLC, a Delaware limited liability company located at 141 W. Jackson Blvd., Suite 1220, Chicago IL 60604 (“Syndigo”) and the Client (“Client”) identified in any Services Agreement signed by both Parties referencing this MCA (“Services Agreement”), and is effective as to each such Service Agreement as of the effective date identified in that Services Agreement (“Effective Date”). Together the Services Agreement and this MCA are referred to as the “Agreement”. Client and Syndigo may be referred to in the Agreement individually as a “Party” and collectively as the “Parties”.

1. BACKGROUND

Syndigo provides digital asset management and product information management solutions to enable an efficient and accurate transfer of information across the brand, retailer and restaurant ecosystem using Syndigo’s proprietary content management software and platforms (the “Content Experience Hub”). Syndigo’s services and any related specifications will be set forth in the applicable Services Agreement and may include, but not be limited to, access to the Content Experience Hub, creating, hosting and providing access to product digital images, video, attributes, data, enhanced content and other information to maximize in-store and ecommerce sales, supply chain management, shelf merchandising and store optimization, and menu nutrition access solutions (the “Services”). The Services may include use of digital images, attributes, nutritional data, measurements and other information for products and/or product cases as imaged, coded, compiled and arranged by Syndigo (the “Syndigo Content”) and/or Client created images, data, attributes, media and other information for its own branded products (the “Client Content”), all as more fully described in the applicable Services Agreement. The Agreement governs Client’s access to and use of the Services and/or Syndigo Content.

2. SYNDIGO LICENSE GRANT

2.1 Terms of Grant.  Subject to the terms and conditions of this MCA, and any additional restrictions, terms or conditions set forth in the applicable Services Agreement, Syndigo grants to Client a limited, non-exclusive, non-transferable right to make use of the Services and any Syndigo Content provided with the Services solely for the purposes specified in the applicable Services Agreement. The license granted under this Section 2.1 is automatically revoked upon termination of a Services Agreement in respect of the Services and/or Syndigo Content set forth therein.

2.2 Ownership. Client acknowledges that the Services and the Syndigo Content, excluding any Client Content, are proprietary to Syndigo and that Syndigo owns certain Intellectual Property Rights in and to the Services and the Syndigo Content, and that Client will not acquire any rights thereto other than the right to use the Services and/or the Syndigo Content as set forth under the Agreement. Syndigo may, from time to time and in the ordinary course of its business, add, delete and modify the Syndigo Content. Syndigo does not grant Client any rights in its compilation or arrangement of Syndigo Content into its proprietary database of Syndigo Content (the “Syndigo Database”). “Intellectual Property Rights” means all copyrights, including any rights to derivative works, trademark rights, trade secrets, know-how and patents, whether arising under federal, state or foreign law. Syndigo’s Intellectual Property Rights do not include any rights to Client Content or Client’s products, labels, packaging, illustrations, images, copyrights, trademarks, or trade dress generally, and such rights will remain solely those of Client.

2.3 Client Users. “Client Users” means any regular full-time employee or on-site individual independent contractor of the Client involved in carrying out the purpose of the Service Agreement. Client will obtain from each Client User an executed confidentiality agreement standard to the industry or verify that such person is otherwise bound to comparable confidentiality obligations.
2.4 Third Party Users. In the event Client desires to utilize third party contractors (each, a “Third Party User”) in connection with any access to or use of the Services (e.g. the Content Experience Hub) and/or Syndigo Content for the benefit of Client for the purposes set forth in the applicable Services Agreement, Client must first request and receive prior written authorization from Syndigo, which authorization will not be unreasonably withheld. A Third Party User approved by Syndigo must enter into Syndigo’s form of restricted use agreement prior to receiving access to the Services or Syndigo Content. Upon termination of the applicable Services Agreement, or upon completion or termination of a Third Party User’s need to use or access the applicable Services or Syndigo Content, Client will ensure that any Syndigo Content in the control or possession of the Third Party User is immediately returned or destroyed and that the Third Party User has ceased using the Services and Syndigo Content. Client will provide written verification of the same to Syndigo.

3. RESTRICTIONS ON USE OF SERVICES AND SYNDIGO CONTENT

Except as expressly provided under the Services Agreement, Client and Client Users will not:

i. Sell, distribute, sublicense, grant access to or otherwise transfer any Services or Syndigo Content, in whole or in part, to any third party or any parent, subsidiary, or other affiliate (any such entity, an “Affiliate”) of Client;

ii. Use with, integrate and/or populate any third-party software or database with Syndigo Content, including space management programs or applications, e-commerce applications, mobile applications, data sync, print advertising, or in-store signage including shelf tags and strips unless specifically allowed under the Permitted Uses set forth in the Services Agreement;

iii. Alter or modify the Syndigo Content, or remove any source attribution included in the Syndigo Content;

iv. Utilize the Syndigo Content to create a new database, merge with or supplement an existing database or otherwise attempt to replicate the Syndigo Content, other than transient caching or other temporary storage incidental to the Permitted Uses set forth in the Services Agreement;

v. Reverse assemble, reverse compile, or otherwise translate any portion of the software or other intellectual property relating to the Services; or

vi. Interfere with, circumvent, manipulate or disrupt the operation or the functionality of any Services or link to elements or components of the Service, independently from the web pages on which they originally appear, or display the Services or any part thereof in an exposed or concealed frame.

4. CONTENT EXPERIENCE HUB

Syndigo will provide Client unique passwords and user names for the number of Client Experience Hub users set forth in the Services Agreement (a “CXH User”). All CXH Users must be Client Users or an approved Third Party User.  CXH User logins are for designated CXH Users only and cannot be shared or used by more than one user, but any CXH User login may be permanently reassigned to another user as needed by Syndigo.  Client will be responsible for the confidentiality and use of a CXH User’s password and username.  Client will use commercially reasonable efforts to prevent unauthorized access to or use of the Content Experience Hub and will promptly notify Syndigo of any unauthorized use of any CXH User’s password or user name.

5. SYNDIGO CONTENT

5.1 Client Requested Syndigo Content Additions. “Client Requested Syndigo Content Additions” refers to Syndigo processing, photographing, scanning, coding, and storing digital information relating to the products or product cases described in the applicable Services Agreement from physical product samples, renderings, package flats or other product information provided by Client or at Client’s request procured by Syndigo, the result of which together with any modifications, enhancements or additions thereto is deemed Syndigo Content. Syndigo Content is owned by Syndigo and will not be deemed to be “works made for hire” under the U.S. Copyright Act. Product submission and processing requirements will be as set forth in the Services Agreement.

5.2 Syndigo Content Deliverable. Unless otherwise expressly stated in the Services Agreement, Syndigo Content must be downloaded onto and stored on servers controlled by the Client located in the United States or onto the servers of a top-tier third-party storage provider under an agreement with Client. Any Syndigo Content downloaded and stored along with Client or third-party data in a single database on Client’s servers will be marked and maintained by Client at all times with a unique flag or identifier. In the event Client elects not to use a unique flag or identifier to mark the Syndigo Content, then Syndigo Content will not be stored with Client or third-party data in the same database and Syndigo Content will be kept separate at all times from all other data on Client’s servers. All Syndigo Content must be stored as delivered by Syndigo to Client and in no event is Client permitted to modify, merge, integrate or in any way combine Client or third-party data into the Syndigo Content.

5.3 Unauthorized Use and Access. Client will be responsible for any breaches by its employees, Client Users, Third Party Users or other persons who make unauthorized use of, or who gain unauthorized access to the Services or Syndigo Content in connection with their services to or affiliation with Client. Client will use commercially reasonable efforts to prevent third parties from scraping or downloading all or substantially all of the Syndigo Content from Client’s website(s); this may include, but not be limited to (i) establishing security to prevent scraping (e.g., disabling the ability to download or copy an image via a “right click” mouse function or copy/paste an image using the “ctrl C” and/or “ctrl V” function) and (ii) tracking to detect when scraping is taking place (e.g., tracking IP addresses to check frequency and consistency of visits, pages per minute speed, session length and pages per session). Client will notify Syndigo immediately upon knowledge of any unauthorized access or use of any Services or Syndigo Content and will assist Syndigo to enjoin and otherwise redress such conduct.

6. CLIENT CONTENT

Client may provide Client Content to Syndigo for use by Syndigo in performance of the Services and use by other parties who have contracted with Syndigo, subject to the terms and conditions of the Agreement. Upon submission of any Client Content, Client hereby grants to Syndigo a limited, non-exclusive, transferable license to store, host, use, copy, modify (as directed by Client), distribute, display, sublicense and create derivative works of the Client Content, (such as works resulting from changes made to Client Content to meet format requirements) solely in connection with the performance of the Services. Syndigo acknowledges that the Client Content is proprietary to Client and that Client owns certain Intellectual Property Rights in and to the Client Content. Unless otherwise provided in the applicable Services Agreement, Syndigo is not responsible for the quality of the Client Content and does not verify the accuracy of any data, attributes or information included therewith or that it meets the specifications of Syndigo created Syndigo Content set forth on any Services Agreement(s). Client acknowledges and agrees that Syndigo may remove Client Content from its systems to mitigate any copyright or other infringement claims.

7. SYNDIGO CATEGORY MANAGEMENT AND SHELF EDGE SERVICES

In connection with Syndigo’s performance of certain Services, Client may receive Syndigo Content included in planograms or floor plans created or revised by Syndigo, or in shelf edge products, such as strips, shelf tags or back tags, and/or other products Client may receive as a result of the Services provided (collectively, “Work Product”).  Client acknowledges that any Syndigo Content that Client receives access to or Syndigo uses in connection with the Services is solely the property of Syndigo.  Client is the sole owner of Work Product; provided, however, that to the extent Client receives Work Product containing Syndigo Content, Syndigo grants to Client a limited, non-exclusive, non-transferable right to make use of the Syndigo Content in the applicable Work Product, subject to the other terms and conditions set forth in the Agreement.  In offering such Services, Syndigo may be required to collect product data, images and other information from Client (“Client Information”). Syndigo will not own any Client Information provided to Syndigo in the course of its provision of the Services. Client is solely responsible for the Client Information. Client will not receive any rights in or to Syndigo Content that is derived from Work Product that contains Client Information other than the rights in Work Product it is granted as provided for in the Agreement.

8. FEES

In consideration of the Syndigo Content license and rights granted to Client and/or Services provided by Syndigo, Client will pay to Syndigo such fees as provided in and in accordance with the Services Agreement(s) and any addendums or supplements thereto.  Client will be solely responsible for and will pay or reimburse Syndigo costs incurred for any sales taxes, use taxes, value added taxes (VAT), excise taxes, tariffs, duties, or withholding taxes due with respect to the provision or use of Services to or by Client.

9. TERM AND TERMINATION

9.1 Term. The Agreement commences on the Effective Date and continues for so long as any Services Agreement hereunder remains in effect.

9.2 Early Termination. Either Party may terminate a Services Agreement immediately by written notice to the other Party upon the occurrence of (a) a material breach of the Services Agreement by the other Party, if such breach is not curable, or if curable, is not cured within ten (10) days after receipt of a reasonably detailed written notice of such breach from the Party seeking termination; or (b) the other Party becoming insolvent, filing for bankruptcy, or executing an assignment for the benefit of creditors; or an involuntary petition being filed against the other Party under bankruptcy laws.

9.3 Effect of Termination. Upon expiration of the Initial Term or Renewal Term, if applicable, or termination of the Services Agreement, the licenses granted by Syndigo in respect of the Services and/or Syndigo Content set forth therein are revoked. Client will cease to use all Services and if applicable, return or destroy all Syndigo Content, and provide Syndigo with written certification that it has taken such actions. Notwithstanding the foregoing, Syndigo Content embedded in Work Product does not need to be destroyed, provided its use is limited to the applicable Work Product.

10. WARRANTIES; LIMITATION OF LIABILITY

10.1 Syndigo’s Warranties. Syndigo warrants that the Services will be performed in a good and workmanlike manner. Syndigo does not warrant that the Syndigo Content is free from errors, accurate, complete or current. SYNDIGO MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR USE. CLIENT ACKNOWLEDGES, EXCEPT AS OTHERWISE PROVIDED UNDER THE AGREEMENT, CLIENT IS BEING PROVIDED AND ACCEPTING THE SERVICES AND SYNDIGO CONTENT ON AN “AS IS” BASIS. CLIENT ACKNOWLEDGES THAT THE SERVICES MAY INTERACT WITH THIRD-PARTY WEB ENVIRONMENTS OUTSIDE SYNDIGO’S CONTROL AND SYNDIGO WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES INCURRED BY CLIENT DUE TO ANY ERRORS, OMISSIONS, OR DELAYS IN THE OPERATION OF SUCH THIRD-PARTY WEB ENVIRONMENTS.

10.2 Client’s Warranties. Client represents, warrants and covenants (i) the Client Content does not infringe on any third-party Intellectual Property Rights; (ii) Client has all necessary rights, power and authority to grant the rights and licenses provided to Syndigo under the Agreement; (iii) Client will not publish, post, upload or otherwise transmit Client Content that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage any systems of another; and (iv) the Client Content does not violate any third party’s privacy rights, rights or duties under consumer protection, or constitute libel, slander or defamation, or include material which is obscene, pornographic, or adult-oriented. Client is solely and exclusively responsible for all Client Content and must make all reasonable efforts to verify the Client Content is accurate, up-to-date and lawful. Client will comply with any governmental law, statute, ordinance, administrative order, rule, or regulation applicable to the marketing and advertising of consumer products, including, without limitation, under applicable state unfair and deceptive trade practice laws, the FTC Act and the Federal Food, Drug and Cosmetic Act.

10.3 Limitation of Liability. SYNDIGO’S AGGREGATE MAXIMUM LIABILITY TO CLIENT HEREUNDER SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CLIENT PURSUANT TO THE SERVICES AGREEMENT GOVERNING THE SERVICES GIVING RISE TO THE CLAIM, FOR THE TWELVE MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, NEITHER PARTY OR ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS WILL BE LIABLE FOR ANY CLAIMS FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT. THE SERVICES AND SYNDIGO CONTENT ARE INTENDED SOLELY AS BUSINESS INTELLIGENCE TOOLS AND CLIENT’S USE OF, AND RELIANCE UPON, SAME ARE CLIENT’S SOLE RESPONSIBILITY, WITH CLIENT ASSUMING ALL ASSOCIATED RISKS.

11. INDEMNIFICATION

11.1 Syndigo’s Indemnification. Syndigo will indemnify, defend and hold Client harmless from and against any and all third-party claims, actions, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising from an allegation that the Services and if applicable, the Syndigo Content, when used in accordance with the terms of the Agreement, infringes any third-party Intellectual Property Right. If such a claim is made or appears possible, Syndigo may, at its option, secure for Client the right to continue to use the Services or applicable Syndigo Content, or modify or replace the same so it is non-infringing, or terminate the Services by paying Client a credit equal to the portion of previously paid fees allocable to the unused remainder of the term of any applicable Services Agreement.

11.2 Client’s Indemnification. Client will indemnify, defend and hold Syndigo harmless from and against any and all third-party claims, actions, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising from (i) Client’s breach of the Agreement; and (ii) an allegation that any Client Content infringes any third-party Intellectual Property Right.

11.3 Notices and Claims. Indemnification will be available only where the Party seeking indemnification promptly notifies the other Party in writing of any such claims and if applicable, promptly tenders full control of the defense and settlement of any such claim to the indemnifying Party at its expense and with its choice of counsel. The Party seeking indemnification will cooperate with the indemnifying Party in defending or settling such claim and may join in the defense with counsel of its choice at its own expense.

12. MISCELLANEOUS

12.1 Waiver and Amendment. No modification, amendment or waiver of any provision of a Services Agreement or the Agreement will be effective unless in writing and signed by both parties. No failure of delay by either Party in exercising any right, power, or remedy under a Services Agreement or the Agreement, except as specifically provided herein, will operate as a waiver of any such right, power or remedy.

12.2 Successors and Assigns. Client may not assign, transfer, or delegate its rights or obligations under the Agreement, voluntarily or involuntarily, whether by merger, consolidation or dissolution, without Syndigo’s prior written consent; provided, however that Client may assign its rights hereunder to an acquirer of all or substantially all of its assets or equity, with notice to Syndigo.

12.3 Notices. All notices, demands or consents required or permitted under the Agreement will be in writing. Notice will be considered delivered and effective when (a) personally delivered; (b) delivered by private overnight carrier with delivery confirmation; (c) delivered by certified U.S. Mail, return receipt requested; or (d) delivered by email and notices so delivered will be effective upon dispatch by the sender of the electronic transmission. Notice will be addressed to the person and address identified on the latest Services Agreement entered into by the parties, or to such other address or addressee as either Party may from time to time specify by notice to the other Party.

12.4 Governing Law and Venue. The Agreement will be governed by the laws of the state of Delaware, excluding conflict of laws provisions. Any action with regard to a collection action for amounts due under the Agreement will be brought in the Circuit Court for DuPage County, Illinois or in the U.S. District Court for the Northern District of Illinois, Eastern Division, sitting in Chicago and the parties hereby submit to the personal jurisdiction of these courts. Any action with respect to intellectual property infringement or breach of a Party’s confidentiality obligations may be brought in any court of competent jurisdiction.

12.5 Severability and Survival. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provisions to the fullest extent allowed by law and the remaining provisions of the Agreement will remain in full force and effect. Sections 2.2, 2.4, 3.1, 5, 8 (as to payment obligations arising prior to termination), 9.3, 10 and 11, and this Section 12, will survive the termination or expiration of the Agreement.

12.6 Complete Agreement. The Agreement and the Services Agreement(s) constitute the final and complete understanding between the Parties with respect to the subject matter hereof, and supersede any prior or contemporaneous agreements, discussions or negotiations. No provisions and conditions on invoices, purchase orders, order acknowledgements or the like will have any force or effect between the Parties. In the event of a conflict between any term or condition in the Agreement and any term or condition in any Services Agreement, the applicable term in the Services Agreement will govern with respect to the Services and Syndigo Content provided pursuant to such Services Agreement.

12.7 Force Majeure. Neither Party will be liable to the other Party for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to, acts of God, strikes or shortages of materials.

12.8 Publicity. Syndigo may publicly identify Client as one of its Clients, including displaying Client’s name and logo on Syndigo’s website and in its marketing materials.

12.9 Confidentiality. The Parties will keep in strictest confidence, both during the term of the Agreement and subsequent to termination of the Agreement, and will not for any reason, except as directed by the disclosing party, disclose, communicate or divulge to any person, firm or corporation, or use, directly or indirectly, for their own benefit or the benefit of others, any information which in good faith and good conscience ought to be treated as confidential information including, without limitation, information relating to the trade secrets or business affairs of the disclosing party. Upon termination of the Agreement, for any reason whatsoever, the receiving party shall turn over to the disclosing party all materials containing confidential information. The foregoing obligation of confidentiality and non-disclosure will not apply to (i) information which at the time of disclosure or discovery is in the public domain; (ii) information which, after disclosure, becomes part of the public domain by publication or otherwise, except by breach of the Agreement; (iii) information which the receiving party can establish by reasonable proof was in its possession at the time of disclosure by the disclosing party and was not acquired, directly or indirectly, from the disclosing party; (iv) information which a receiving party receives from a third party, provided, however, that such information was not obtained by said third party, directly or indirectly, from the disclosing party and that said party has a right to disclose it. Information which is required by law to be disclosed may be disclosed provided, however, that to the extent practicable, the disclosing party is first given notice of the required disclosure and an adequate opportunity to seek appropriate legal relief to prevent such disclosure or limit its use and further disclosure.

12.10 Equitable Relief. The remedy at law for breach of a Party’s unique rights pursuant to the Agreement being inadequate, each Party will be entitled, in addition to such other remedies as it may have, to preliminary and permanent injunctive relief and to specific performance for any breach or threatened breach of the Agreement by the other Party without proof of any actual damages that have been or may be caused to it by such breach, and without the requirement of the posting of a bond.

12.11 Privacy and Data Security. In the event that in the in the context of providing the Services, Syndigo has access to Personal Data, such as individual contact information, Syndigo is acting only as the Processor, and Client remains the Controller and “data owner.” Client agrees that at any time when it has not accepted the Syndigo Data Processing Addendum (or when it is not in full force and effect for any other reason), Client shall be prohibited from submitting to or otherwise Processing within the Syndigo applications Personal Data that the Processing of which is governed by the General Data Protection Regulation (Regulation (EU) 2016/679) (all capitalized references shall have the meaning defined in the said Regulation), and shall be obligated to immediately cease and desist from any such processing activities, for as long as the said addendum is not in full force and effect.

12.12 Modifications. If Syndigo makes a material change to the Agreement, then Syndigo will notify Client by sending an email to the notification email address in the latest Services Agreement. If the change has a material adverse impact on Client and Client does not agree to the change, Client must so notify Syndigo via contract-admin@syndigo.com within thirty days after receiving notice of the change. If Client notifies Syndigo as required, then Client will remain governed by the Agreement in effect immediately prior to the change until the end of the then current Initial Term or Renewal Term for the then active Services Agreement(s).

Dated as of January 22, 2019