Terms and Conditions

INSTOCK INC. (“INSTOCK” OR ‘WE”) IS WILLING TO PROVIDE CERTAIN SOFTWARE, HARDWARE AND SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO A WRITTEN ORDER FORM, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH INSTOCK THAT REFERENCES THIS AGREEMENT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THESE TERMS OF USE (“AGREEMENT”). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SOFTWARE, HARDWARE OR SERVICES FROM INSTOCK. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND INSTOCK. BY ENTERING INTO A WRITTEN ORDER FORM, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH INSTOCK THAT REFERENCES THE AGREEMENT BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A “CORPORATE ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM “YOU” OR “CUSTOMER” REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.

Instock and Customer shall herein be referred to each as a “Party” and collectively as the “Parties”. In consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Definitions #

1.1 Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.

1.2 Building means the specific location set forth in the Order Form at which the Solution will be deployed at.

1.3 Confidential Information has the meaning given to it in Section 4.1.

1.4 Customer means the person or entity that enters into an Order Form with Instock that expressly references this Agreement.

1.5 Customer Data means all data and information made available by the Customer or its Users to Instock or otherwise provided by Customer or its Users in connection with the provision of the Solution.

1.6 Data means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.

1.7 Documentation means the documentation for the Solution generally supplied by Instock to assist its customers in the use of the Solution.

1.8 Hardware means Instock’s proprietary hardware and equipment set forth and described on the Order Form and licensed to Customer for use in connection with the Solution. Hardware may include grid, refrigeration hardware, robots, chargers, printers and/or bins.

1.9 Instock Data means all Data made available by Instock to Customer in connection with the Customer’s use of the Solution.

1.10 Losses has the meaning given to it in Section 9.1.

1.11 Order Form means each ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Solution and any Services ordered by Customer, sets forth the prices for the Solution and Services and contains other applicable terms and conditions.

1.12 Services means the configuration, implementation, maintenance and support of the Solution set forth and described on an Order Form.

1.13 Software means Instock’s proprietary software solutions and APIs provided by Instock to Customer for use with the Solution and set forth and described on the Order Form including all updates, enhancements, bug fixes and new releases thereto that Instock provides to Customer in connection with the Solution. Software may include software to be installed on Customer mobile devices and desktops, software embedded in the Hardware and software that is hosted by Instock and made available by Instock through a dashboard accessed by Customer over the internet/cloud.

1.14 Solution means Instock’s proprietary subscription-based robotics as a service solutions set forth and described on the applicable Order Form and which includes the Hardware and Software. The Solution is a combination of Hardware and Software that currently supports an assortment stored in ambient and in chilled environments.

1.15 Users mean individuals who are authorized by the Customer to access and use the Solution in accordance with this Agreement. Users consist of any employee of the Customer or its Affiliates and any independent contractor of the Customer or its Affiliates.

Solution #

2.1 Solution. Instock shall provide the Customer with the specific Services and Solution specified on an Order Form. In the event of a conflict between the terms set forth in an Order Form and this Agreement, the terms set forth in this Agreement will control, unless the Order Form makes specific reference to the section of this Agreement that is to be amended in the Order Form. Any exceptions expressly agreed upon in writing by the Parties pursuant to a particular Order Form will apply only for purposes of that Order Form, and will not be deemed to in any way amend, modify, cancel, or waive the provisions of this Agreement for any other Order Form. The Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Instock regarding future functionality or features.

2.2 License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Instock hereby grants to the Customer, solely during the term of the applicable Order Form, a non-exclusive, non-transferable (except as set forth in Section 10.2) license to access and use the Solution solely at the Building and solely for the Customer’s internal business purposes. This license is restricted to use by Customer and its Users and does not include the right to use or provide the Solution on behalf of any third party. The Customer is responsible for procuring and maintaining a high speed internet connection, at Customer’s sole cost and expense, to use the Solution. The Customer agrees: (a) that only authorized Users are permitted to use the Solution; (b) that it is responsible for authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement, (c) that at all times it must comply with the Instock Guides and (d) to otherwise take all commercially reasonable steps to protect the Solution and the Documentation from damage, theft and from unauthorized use and/or access. Instock reserves the right to modify the Instock Guides from time to time provided that it provides Customer notice of any material modification to the Instock Guides.

2.3 Licensed Volume. The Customer acknowledges that the Solution is licensed to the Customer for use up to the amount of storage volume or other metric purchased by the Customer and set forth on the applicable Order Form (the “Volume Limitations”). In the event that the Solution is used in excess of the Volume Limitations then the Customer shall be obligated to purchase from Instock for the excess storage capacity or other metric described on the Order Form at the excess capacity rates set forth on the Order Form.

Fees; Payment terms #

3.1 Fees. The Customer agrees to pay Instock for the Services and expenses incurred on the basis and at the rates specified in each Order Form. Unless otherwise set forth on the Order Form, payment shall be due within thirty (30) days after receipt of Instock’s invoice and shall be made in US Dollars. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due. In addition to paying the applicable fees, Customer shall also pay all pre-approved reasonable travel and out-of-pocket expenses incurred by Instock in connection with any Services rendered.

3.2 Disputed Charges. If the Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, the Customer shall pay the amounts due under this Agreement less the disputed amount, and the Parties shall proceed in good faith to promptly resolve such disputed amount. An amount will be considered disputed in good faith if (i) the Customer delivers a written statement to Instock on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by the Customer, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from the Customer that are not in dispute have been paid as and when required under this Agreement.

3.3 Taxes. Fees are exclusive of taxes. The Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Instock and any taxes or obligations imposed upon Instock under federal, state and local wage laws.

Confidentiality #

4.1 Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.

4.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

4.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

Warranties #

5.1 General Warranties. Each Party represents and warrants to the other Party that (a) its execution and delivery of this Agreement and performance or compliance with the terms of this Agreement will not conflict with, result in a breach of or constitute a default under any agreement to which it is bound; (b) to its’s knowledge, there are no threatened lawsuits, actions or any other legal or administrative proceedings against it which, if adversely determined against such Party, would have a material adverse effect on its ability to perform its obligations under this Agreement; and (c) it will comply with all applicable laws, rules, orders, statutes, and regulations in connection with the performance of its obligations under this Agreement.

5.2 Customer Warranties. Customer hereby represents and warrants to Instock that all information and data provided by Customer to Instock or prepared by Instock for Customer and set forth on the Order Form, including, without limitation, all Building specifications, room dimensions, room layouts and similar information is true, accurate and complete and may be relied upon by Instock. Customer shall be responsible for all additional costs, expenses and damages incurred by Instock in the event that such information is not true, accurate and complete and recognizes that the Solution may not operate properly in the event such information is not true, accurate and complete. Instock may commence billing Customer upon the date that it would have completed the implementation of the Solution for Customer had Customer’s information been true, accurate and complete. Customer hereby further represents and warrants to Instock that it will comply with all Instock Guides.

5.3 Solution Warranty. Subject to Customer’s full compliance with the Instock Guides and subject to Section 5.2, Instock warrants that during the term of any Order Form, the Solution will conform, in all material respects, with the Documentation and any specifications and descriptions set forth in the Order Form. Instock does not warrant that the Solution will be uninterrupted or error free. Instock makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Instock will, at no additional cost to Customer, (a) provide remedial services necessary to enable the Solution to conform to the warranty, or (b) replace or fix any defective Hardware or other components of the Solution to enable the Solution to conform to the warranty. At Instock’s request Customer will ship any defective Hardware to Instock for repair or replacement.

5.4 Exclusions. Customer’s license to use the Solution is contingent upon proper use of the Solution by Customer and Customer’s observance of all operational instructions set forth in the Documentation the Instock Guides and Order Form and does not cover, among other things, labor and replacement parts required because of accidents, acts of God, fire, flood, war, embargoes, labor disputes, acts of sabotage, terrorism, riots, delay of carriers, voluntary or mandatory compliance with any government act, regulation or request, shortage of labor, materials or manufacturing facilities, neglect, misuse, failure of electrical power, air-conditioning, humidity control, transportation and unusual physical or electrical stress, relocation of the Solution unless such relocation is done by Instock or its authorized representative or any other cause or causes beyond Instock’s control. The warranty in Section 5.3 specifically excludes: (1) operating supplies or accessories not furnished by Instock; (2) electrical work external to the Solution or maintenance of accessories, alterations, attachments, or other devices furnished or not furnished by Instock, unless specifically noted; or (3) Hardware or Software which have been modified, altered, added to, improperly repaired, serviced, installed or reinstalled (moved) by other than Instock authorized personnel.

5.5 Professional Services Warranty. Instock warrants that any Services provided hereunder shall be provided in a competent manner and in accordance with any specifications set forth in the Order Form in all material respects.

5.6 No Other Warranty. INSTOCK DOES NOT REPRESENT THAT THE SERVICES OR SOLUTION WILL BE ERROR-FREE OR THAT THE SERVICES OR SOLUTION WILL MEET CUSTOMER’S REQUIREMENTS. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY INSTOCK. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES AND SOLUTION ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

5.7 SAFETY DISCLAIMER. INSTOCK SHALL HAVE NO LIABILITY FOR AND CUSTOMER HEREBY WAIVES ANY CLAIMS FOR ANY DAMAGES TO REAL OR TANGIBLE PROPERTY OR FOR ANY PERSONAL INJURY UNLESS CAUSED BY THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF INSTOCK OR ITS PERSONNEL.

Limitation of liability #

6.1 Consequential Damage Exclusion. Neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.

6.2 Limitation of Liability. The total cumulative liability of Instock to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the fees paid by Customer to Instock under the Order Form for the Services which form the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the Parties. The pricing set forth in each Order Form reflects this allocation of risk and the limitation of liability specified herein.

6.3 Personal Injury or death. Nothing in this Agreement limits Instock’s liability for death or personal injury caused by its gross negligence.

Term #

7.1 Term. This Agreement will continue in effect until otherwise terminated in accordance with Section 7.2 below. The term of each Order Form for the Solution shall be set forth on the Order Form.

7.2 Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form (i) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Forms then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.
7.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, Instock shall no longer provide the applicable Services to the Customer and the Customer shall promptly cease and cause its Users to promptly cease using the Solution. All Hardware will be returned to Instock in the same condition provided to Customer (reasonable wear and tear excepted) pursuant to shipping instructions provided by Instock. The cost to ship the Hardware back to Instock will be borne by Customer unless this Agreement is terminated due to Instock’s uncured breach in which case Instock will be responsible the shipping costs. The Customer shall pay Instock for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession.

Ownership; Obligations #

8.1 Solution. The Customer acknowledges and agrees that as between Instock and the Customer, all right, title and interest in and to the Solution (excluding any Customer Data) and including all Hardware and Software and all modifications, enhancements and configurations thereto, all Instock Data and all of Instock’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to the Customer by Instock in providing the Solution and all derivatives thereof are and shall remain Instock’s or its licensors’. The Instock name, all Instock logos, and the product names associated with the Solution are trademarks of Instock or third parties, and no right or license is granted to use them. The Customer shall not remove any Instock trademark or logo from the Solution. During the term of this Agreement, Instock grants to the Customer a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 12.2), royalty-free right to use, display, transmit, and distribute the Instock Data solely in connection with the Customer’s permitted use of the Solution. Instock shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by Customer’s use of Solution provided, however, that Instock shall not disclose any such data unless such data is in an aggregated, anonymized form that would not permit a third party to identify the data as associated with the Customer or any of its Users.
8.2 No Unauthorized Modifications. Customer at its expense will protect and defend Instock’s title and the interest to the Solution and will keep the Solution free and clear from any and all claims, liens, encumbrances, security interests and legal processes of Customer’ creditors and other persons. Customer shall not move any Hardware or otherwise modify the Solution without in each instance obtaining Instock’s prior written consent thereto. All items of the Hardware shall at all times be and remain personal property notwithstanding that any such Hardware may now or hereafter be attached or fixed to realty. Customer shall keep all Hardware free from any marking or labeling which might be interpreted as a claim of ownership thereof by Customer or any party other than Instock or anyone so claiming through Instock. Instock shall have the right, upon reasonable prior notice to Customer and during Customer’s regular business hours, to inspect the Hardware and use of the Software at its location or to maintain and repair the Solution. Customer shall use and maintain the Solution in a good and careful manner and in compliance with the Instock Guides and all applicable laws and regulations, including without limitation all applicable environmental laws and regulations, and for no purpose other than that for which such Solution was reasonably intended. Without the prior written consent of Instock, Customer shall not make any alterations, modification or attachments to the Solution. All such permitted alterations, modifications and attachments made to the Solution which cannot be removed readily without materially damaging the functional capabilities or economic value of the Solution shall become the property of Instock. Customer is responsible for all damage to the Solution caused by Customer’s or its User’s acts or omissions.

8.3 Customer Data. The Customer retains ownership of all right, title and interest in and to all Customer Data. During the term of this Agreement, the Customer hereby grants to Instock a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 12.2), royalty-free right to use, display, transmit, and distribute the Customer Data solely as necessary to provide the Solution to the Customer. Upon termination of the Solution, Instock shall make such Customer Data available to the Customer in a mutually agreed upon format.

8.4 Customer Obligations. The Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Customer may only use the Software and Hardware in connection with its use of the Solution. Unauthorized use, resale or commercial exploitation of the Solution in any way is expressly prohibited. Without Instock’s express prior written consent in each instance, the Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Solution or access the Solution in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Solution. Except as expressly permitted in this Agreement, the Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Solution to any third-party. The Customer shall be liable for any breach of this Agreement by any of its Users. Neither the Customer nor its Users shall use the Solution to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Solution or networks connected to the Solution; or (e) violate any applicable law or regulation.

Indemnification #

9.1 Instock Indemnification. Subject to Section 9.3 below, Instock will indemnify, defend and hold the Customer and its Affiliates harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against the Customer or any of its Affiliates alleging that the use of the Solution as permitted hereunder infringes any United States patent, copyright or trademark, or constitutes a misappropriation of a trade secret of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Solution in violation of this Agreement, (b) any claim relating to any third party products or services not provided by Instock, (c) modifications to the Solution made other than by Instock (where the claim would not have arisen but for such modification), (d) the combination, operation, or use of the Solution with materials, software or equipment which was not provided by Instock, to the extent that the Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (e) compliance by Instock with the Customer’s custom requirements or specifications if and to the extent such compliance with the Customer’s custom requirements or specifications resulted in the infringement. If the Solution is held to infringe, Instock will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect the Customer against such claim without cost to the Customer; (b) to replace the Solution with non-infringing software or hardware; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Order Form and refund to the Customer any prepaid unused fees paid to Instock for the infringing Solution. The rights and remedies granted the Customer under this Section 9.1 state Instock’s entire liability, and the Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.

9.2 Customer Indemnification. Subject to Section 9.3 below, the Customer shall indemnify, defend, and hold Instock and its Affiliates harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against Instock or any of its Affiliates that arises out of or results from Customer’s use of the Solution (except for claims that Instock is obligated to indemnify Customer for above in Section 9.1).

9.3 Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).

General #

10.1 Entire Agreement. This Agreement, including all Order Forms and the Instock Guides, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement or the applicable Order Form and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Order Form. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Customer shall be of no force or effect, even if the order is accepted by Instock. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.

10.2 Assignment. This Agreement shall be binding upon and for the benefit of Instock, the Customer and their permitted successors and assigns. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, either Party may assign this Agreement and all Order Forms as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Instock may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Instock shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.

10.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA without regard to its conflict of law provisions.

10.4 Disputes. Any disputes between the Parties arising out of this Agreement shall be resolved as follows: Members of the senior management of both Parties shall meet to attempt to resolve such disputes. If a dispute cannot be resolved within fifteen (15) days, either Party may make a written demand for mediation. Within fifteen (15) days after such written notification, the Parties shall meet for one day with an impartial mediator. The costs and expenses of the mediator shall be shared equally by the Parties. If the dispute is not resolved by mediation or the Parties are unable to agree on a mediator, then such dispute will be subject to the exclusive jurisdiction of the state and federal courts located in the State of [____________], and each party hereby consents to the personal jurisdiction thereof.

10.5 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

10.6 Relationship of the Parties. Instock and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

10.7 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, recognized health threats as determined by the World Health Organization, the Centers for Disease Control, or local government authority or health agencies (including but not limited to the health threats of COVID-19, H1N1, or similar infectious diseases), curtailment of transportation facilities, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.

10.8 Insurance. During the Term, Instock shall maintain at its sole cost and expense, in an amount equal to full replacement cost, insurance on an all risk basis on the Hardware as well as (i) Workers Compensation insurance as required by applicable laws; (ii) Employer’s liability insurance in an amount not less than $500,000 combined single limit each occurrence; and (iii) Commercial General Liability for bodily injury liability and property damage liability with limits of $1,000,000 combined single limit each occurrence. Customer shall maintain, at its expense, property and casualty insurance for the Building. Customer waives (and shall cause its insurance carriers to waive) any and all rights of recovery, claims or causes of actions against Instock for any loss or damage that may occur to Customer or any party claiming by, through or under Customer, as the case may be, with respect to the Building, any addition or improvements thereto, or any contents therein, by reason of fire, the elements or any other cause or casualty, regardless of cause or origin, including the negligence of Instock.

10.9 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) by email upon conformation that the electronic mail was received by the recipient and (iv) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party set forth on the applicable Order Form. Either Party may change its address by giving written notice of such change to the other Party.

10.10 Modifications to Solution. Instock may make modifications to the Solution or particular components of the Solution from time to time provided that such modifications do not materially degrade any functionality or features of the Solution.

10.11 No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.

10.12 Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.