Master Service Agreement

MASTER SERVICE AGREEMENT

This Software as a Service Customer Agreement (“Master Service Agreement”) and applicable quote (“Order Form”) are the complete agreement regarding transactions under this Master Service Agreement (together, “the Agreement”) under which Customer may order SaaS Services and other add-on services from EDITED.

Subject to the terms of this Agreement, EDITED will use commercially reasonable efforts to provide Customer, that is identified on the Order Form, the SaaS Services and any additional services in accordance with the Order Form. For clarity, the customer is the organization listed on the Order Form only, and does not include any subsidiaries, parent companies or child companies unless otherwise explicitly defined on the Order Form.

Software as a Service (“SaaS”)

EDITED hereby agrees to provide access to the EDITED Market Intelligence Suite which may include, but is not limited to, EDITED Data Apparel, EDITED Data Beauty, EDITED Data Homeware, EDITED Analytics, EDITED Research, EDITED API and/or EDITED Financial Services (“SaaS Services”) available via a network application (“Application”) at www.edited.com to the number of paid users (“Permitted Users”) to access and use the Application as part of the SaaS Services only.

EDITED grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to use any materials or insights derived from the data provided by, or obtained from, the SaaS Services (“Service Data”) during the current Term only, in accordance with this Agreement and solely for Customer’s Internal Business and own internal data analysis and demand forecasting purposes. For the avoidance of doubt, the SaaS Services hereunder are provided as a subscription under this Agreement and not a license.

EDITED will provide ongoing maintenance and, from time to time, and at EDITED’s sole discretion, modifications to the SaaS Services. Any such modification will replace prior versions of the Application. The intent of any modification will be to i) upgrade or enhance the SaaS Service; or ii) maintain alignment with current adopted standard or applicable law. Modifications will not degrade data protection features of the SaaS Services.

Provision of the SaaS Services to Customer shall start on the Effective Date listed in the Order Form. Training of Permitted Users will be scheduled at the earliest convenience following acceptance of this Agreement and an Order Form.

Although EDITED has no obligation to monitor Permitted Users use of the SaaS Services, EDITED may do so and may prohibit any use of the SaaS Services or any of the additional services it believes may be (or alleged to be) in violation of the terms and conditions of this Agreement.

As part of the SaaS Services, Permitted Users will receive industry updates, product and EDITED communications and may be invited from time to time to events organized by EDITED.

Professional Services

To the extent that Client has purchased any implementation, launch, expert or consulting services. Said professional services descriptions, pricing, terms and conditions will be outlined in the Order Form.

Customer Restrictions and Responsibilities

Customer agrees to use the SaaS Services and Service Data solely for its own internal business purposes and for processing its own data, and that it shall not license, sublicense, sell, assign, resell, rent, lease, transfer, distribute, time share or otherwise commercially exploit or make the SaaS Services or Service Data available to any third party as a part of a service bureau arrangement or otherwise (“Internal Business”); to use all commercially reasonable efforts to prevent unauthorized access to, or use of, the SaaS Services and Service Data, and to notify EDITED promptly of any such unauthorized use and Customer will follow all commercially reasonable instructions from EDITED to prevent such unauthorized use from reoccurring. Access to the SaaS Services and Service Data is restricted to Permitted Users. Login sharing is strictly prohibited and shall constitute a material breach of this Agreement.

Customer may change Permitted Users during the Term, from time to time, when unforeseen circumstance arise (ie employment termination or role change of a Permitted User). Customer agrees to explicitly allow and whitelist EDITED web crawling activity on its and/or other affiliated web sites.

Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the SaaS Services or any software, documentation or data related to the SaaS Services; modify, translate, or create derivative works based on the SaaS Services (except to the extent expressly permitted by EDITED or authorized within the SaaS Services); use the SaaS Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

Customer shall not distribute any Service Data to any third party, provided, however, this limitation shall not apply to Customer’s internal trading strategies, promotions, campaigns, business or strategic plans or any other derivative works resulting from Customer’s use of the Service Data that do not publish or disclose any Service Data.

Customer represents, covenants, and warrants that Customer shall not use the SaaS Services or Service Data in any jurisdiction for unlawful, obscene, offensive, or fraudulent activity such as promoting or causing harm sending unsolicited, abusive, or deceptive messages, viruses, or harmful code, or violation a third parties rights.   Customer shall comply with all applicable laws and regulations.

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the SaaS Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account credentials, passwords (including but not limited to administrative and Permitted User passwords) and files, and for all uses of Customer’s account credentials to access the SaaS Services or the Equipment with or without Customer’s knowledge or consent.

Reverse engineering, transfer learning, training, sampling for the purposes of assembling a training set, characterizing, or otherwise using the EDITED models, or data derived from the augmented fields by Customer for the benefit of interrogation, analysis, building further machine learning models or artificial intelligence, augmentation, enhancements, modifications, derivative works, or otherwise, is forbidden under this Agreement.

Customer may not remove or export from the United States or allow the export or re-export of the SaaS Services, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the SaaS Services and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

Confidentiality and Proprietary Rights

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information and is confidential or proprietary to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of EDITED includes non-public information regarding features, functionality, Service Data, and performance of the SaaS Service and other add on services. Confidential Information of Customer includes non-public data provided by Customer to EDITED to enable the provision of the SaaS Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the SaaS Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.

Customer shall own and retain all right, title and interest in and to the Customer Data.  EDITED shall own and retain all right, title and interest in and to (a) the SaaS Services including all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with SaaS Services or other onboarding services or support, (c) Service Data, and (d) all Intellectual Property rights related to any of the foregoing.

The EDITED dataset is augmented with machine learning, artificial intelligence and statistical models that use EDITED intellectual property and proprietary information in order to create new derived information based upon a set of trade-secret processes. These models, and samples of their data (the “Augmented Data”) is commercially sensitive and represents EDITED’s intellectual property.

EDITED owns all right, title, and interest, including all intellectual property rights, in and to the SaaS Service, the API, the Service Data, the Augmented Data and EDITED’s other technology. Except as expressly set forth in this Agreement, neither party grants any rights or licensee under its intellectual property rights pursuant to this Agreement.

No additional license to either Party of any trademark, patent, copyright, or any other intellectual property right is either granted or implied by this Agreement.

Customer agrees not to use or publicize EDITED’s name and/or logo in any manner or in connection to any work, recommendations or outcomes undertaken by Customer through its use of EDITED without the prior written consent of EDITED.

Data Protection

To the extent that any personal data is included in the Customer Data, it shall be processed in accordance with EDITED’s Data Processing Agreement that can be found here.

Payment of Fees

Customer will pay EDITED the then applicable fees described in the Order Form for the SaaS Services subscription, onboarding services, and any additional add-on services or otherwise the Customer has selected and in accordance with the terms therein (the “Fees”). If Customer’s actual usage of the SaaS Services exceeds the service capacity set forth on the Order Form during the applicable subscription term or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such additional usage and Customer agrees to pay the additional fees in the manner provided herein. EDITED reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon forty-five (45) days prior notice to Customer (which may be sent by email). If Customer believes that EDITED has billed Customer incorrectly, Customer must contact EDITED no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order for the billing statement to be reviewed.  Inquiries should be directed to EDITED’s customer success department.

Full payment for the Order Form Fees must be received by EDITED thirty (30) days after the subscription start date on the Order Form.  EDITED does not accept payments by check, unless required by law. Refer to the invoice for bank details for wire transfers. The bank charges on such payments are the responsibility of the Customer. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate suspension or termination of SaaS Service or other services. Customer shall be responsible for all taxes associated with SaaS Services and any other services other than U.S. taxes based on EDITED’s net income.

Term and Termination

Subject to earlier termination as provided below, this Agreement is for the Initial Term as specified in the Order Form (“Initial Term”) and shall automatically renew for additional periods of the same duration as the Initial Term (collectively, the “Term”), unless either party requests termination at least forty-five (45) days prior to the end of the then-current Term.

Any discounts or promotional add-ons applied to the Initial Term that is for twelve (12) months will be excluded in all subsequent Renewal Terms.

EDITED may suspend or limit, to the extent necessary, Customer’s use of the SaaS Service or API and Service Data Licenses, where applicable, if EDITED determines there is a material breach of customer’s obligations, a security breach, violation of law or breach of the terms set forth in Customer’s Restrictions and Responsibilities and Confidentiality and Proprietary Rights Sections of this Agreement. If the cause of the suspension can be easily remedied, EDITED will provide notice of the actions Customer must take to reinstate the SaaS Services or API License. If Customer fails to take such actions within a reasonable time EDITED may terminate this Agreement.

In addition to any other remedies it may have, either party may also immediately terminate this Agreement, if the other party materially breaches any of the terms or conditions of this Agreement, provided the one who is not complying is given notice and reasonable time to comply.  Non-payment is a material breach.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, crawling obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

Technical Support

EDITED will provide technical support to Customer via both telephone and electronic mail on weekdays during the hours of 9:30 am through 17:30 pm Eastern time and GMT, with the exclusion of Bank holidays (“Support Hours”).

Customer may initiate a helpdesk ticket during Support Hours by calling +1 866-450-1549 or any time by emailing support@edited.com or through the in-app support feature.

EDITED will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day.

Warranty and Disclaimer

EDITED shall use reasonable efforts consistent with prevailing industry standards to maintain the SaaS Services in a manner which minimizes errors and interruptions in the SaaS Services and shall perform the onboarding and any additional services in a professional and workmanlike manner. SaaS Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by EDITED or by third-party providers, or because of other causes beyond EDITED’s reasonable control, but EDITED shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, EDITED does not warrant that the SaaS Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the SaaS Services and Service Data. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SAAS SERVICES, ONBOARDING, SERVICE DATA, API, AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS” AND EDITED DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Customer acknowledges that EDITED does not warrant that the SaaS Service, Service Data or API will be uninterrupted, timely, secure, error-free, or free from viruses or other malicious software, and no information or advice obtained from EDITED or through the SaaS Service shall create any warranty not expressly stated in this Agreement.

Indemnity

EDITED hereby agrees to indemnity and  hold  harmless Customer from liability to third parties resulting from infringement by the SaaS Service of any United States patent or any copyright or misappropriation of any trade secret, provided EDITED is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; EDITED will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the SaaS Service (i) not supplied by EDITED, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by EDITED, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the SaaS Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the SaaS Services are held by a court of competent jurisdiction to be or are believed by EDITED to be infringing, EDITED may, at its option and expense (a) replace or modify the SaaS Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the SaaS Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the SaaS Service.

Customer hereby agrees to indemnify and hold harmless EDITED against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of Customer’s Responsibilities outlined above or otherwise from Customer’s use of SaaS Services or additional services provided herein.

Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, EDITED AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND EDITED’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO EDITED FOR THE SAAS SERVICES AND OTHER SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT EDITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Trials and Evaluations

A customer may be authorized to use the SaaS Services that is generally available or is in Beta during a trial period for the purpose to evaluate its functionality and technology (“Trial”). Any such use is solely at Customer’s own risk. Customer may only participate in a Trial one time and for a limited amount of time that is specified by EDITED that maybe withdrawn or terminated by EDITED at any time. Neither service levels agreements nor Technical Support are applicable to the Trial. There are no fees charged for the Trial unless specified by EDITED. Notwithstanding the Warranty and Disclaimer Section, during the Trial the SaaS Services are provided “AS-IS” with no warranty whatsoever.

Miscellaneous

If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable or sublicensable by Customer except with EDITED’s prior written consent. EDITED may transfer and assign any of its rights and obligations under the Agreement without consent. The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notice to EDITED shall be sent to either accounts@edited.com or 16 E 34^th Street, 18^th Floor, New York, New York 10016 Attn: Accounts Receivable.

The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with EDITED to serve as a reference account upon request. EDITED may refer to the Customer as being a customer of EDITED.

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of the State of New York without regard to its conflict of laws provisions.