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TERMS OF USE FOR
DATA MODEL CONFORMANCE PROCESS

BY CLICKING ON THE “I AGREE” BUTTON BELOW, YOU, THE USER, ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS AGREEMENT, AND THEREBY CREATING A CONTRACTUAL AGREEMENT BETWEEN YOUR ORGANIZATION AND ARTS, A DIVISION OF THE NATIONAL RETAIL FEDERATION. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION AND THAT THIS AGREEMENT WILL BE BINDING ON THE ORGANIZATION THAT YOU REPRESENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD CLICK ON THE “I DO NOT AGREE” BUTTON; AND, IF APPLICABLE, PROMPTLY RETURN TO LICENSOR ALL MATERIALS IN YOUR POSSESSION THAT ARE ASSOCIATED WITH THE DATA MODEL CONFORMANCE PROCESS TESTING.

PLEASE READ THE BELOW TERMS AND CONDITIONS CAREFULLY AS THEY GOVERN YOUR ACCESS AND USE OF THE DATA MODEL CONFORMANCE PROCESS. YOUR USE AND/OR ACCESS OF THE DATA MODEL CONFORMANCE PROCESS IS SUBJECT TO YOUR ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS IN THIS TERMS OF USE FOR DATA MODEL CONFORMANCE PROCESS (THE "AGREEMENT"). THROUGHOUT THIS AGREEMENT, “USER,” “I,” AND “YOU” REFER TO THE ENTITY USING OR ACCESSING THE DATA MODEL CONFORMANCE PROCESS TESTING PURSUANT TO THIS AGREEMENT.

1. User Obligations. The Data Model Conformance Process involves a test of User’s software applications against the Data Model standard schemas to assist in analyzing conformance with software conducted by ARTS or its contractor(s) at User’s facility with User’s equipment as well as an audit of the testing results (“Conformance Process”). User represents and warrants that it will use the Conformance Process in accordance with the terms and conditions of this Agreement and any guidelines and policies set forth by ARTS. User shall accurately complete the Data Model Conformance Testing Application and Agreement, incorporated herein by reference, and any user documents as required by ARTS. User shall contact the ARTS Conformance Process administrator to schedule and determine the method of testing. User will have its application installed, adjusted, and ready for testing prior to the scheduled Data Model Conformance Process operation.

2. Grant of License. User hereby grants ARTS (including its contractors) with a revocable, nontransferable, royalty-free license to use its software application and equipment necessary for ARTS to conduct the Data Model Conformance Process.

3. Confidentiality and Ownership of Intellectual Property. During the term of this Agreement, the parties may have disclosed to them or otherwise obtain information which is identified in writing as being confidential and/or proprietary (“Confidential Information”). The parties agree that information will not be considered “Confidential Information” to the extent that such information (i) prior to the effective date of this Agreement was already known by the receiving party without any legal obligation of confidentiality; (ii) was or becomes publicly known through no illegal act or omission on the part of the receiving party; (iii) is legally received by the receiving party from a third party under no obligation of confidence from the disclosing party; or (iv) is developed by the receiving party or its employees or contractors independently of and without reference to any Confidential Information communicated to the receiving party. In addition, the receiving party may use or disclose Confidential Information of the disclosing party to the extent that the receiving party is legally compelled to disclose such Confidential Information, provided however, that prior to any such compelled disclosure, the receiving party shall give the disclosing party reasonable advance notice of such disclosure.

User hereby agrees and understands that the following are the sole and exclusive property of ARTS: ARTS copyrights, ARTS trademarks, ARTS trade names, ARTS logos, and other ARTS intellectual property as well as all testing, scoring, audit reports, and other resulting materials produced hereunder (“Intellectual Property”). No right, title, or interest in or to any Intellectual Property of ARTS or the National Retail Federation or its licensors is granted to User under this Agreement. As between the User and ARTS, ARTS is the sole owner of the Data Model Conformance Process. User acknowledges and agrees that this Agreement and any services performed hereunder by ARTS will not give User any rights to the Data Model Conformance Process or any portion thereof. User acknowledges and grants ARTS with a nontransferable, royalty-free license to disclose and display the names of the User and their software application(s) that successfully pass Conformance Process testing and other related information specifically set forth in the ARTS guidelines. User acknowledges that ARTS may disclose the names of vendors that apply to conduct the Data Model Conformance Process. ARTS will not disclose specific information related to particular Users with software that fails the Data Model Conformance Process unless ARTS withholds the User’s identity.

User acknowledges and agrees that as between User and ARTS, the Data Model Conformance Process and all related documentation and all resulting reports and data from any use of the Conformance Process is valuable and exclusive Intellectual Property of ARTS, and User shall have no rights of any kind in or to the Conformance Process, documentation, reports, and data. User further agrees to protect and safeguard the proprietary and intellectual property rights that ARTS has in the Intellectual Property and Conformance Process by using the same degree of care that User uses to protect its own confidential and proprietary intellectual property, but in any event no less than a reasonable degree of care under the circumstances. In this regard, User will honor and comply with reasonable requests made by ARTS to protect its contractual, statutory, and common law rights.

4. Compliance with Applicable Law. User warrants and represents that it will not use or allow the use of the Data Model Conformance Process in violation of this Agreement any applicable federal, state or municipal laws, regulations, or ordinances or ARTS guidelines or policies.

5. Conformance Process Requirements. User will provide, at its own cost and expense, all necessary equipment, operating platforms, and software (other than the Conformance Process) for ARTS to use and conduct the Data Model Conformance Process. Moreover, User will provide, at its own cost and expense, all connections from its own computer systems necessary to access and operate the Data Model Conformance Process. ARTS WILL NOT BE RESPONSIBLE FOR THE OPERATION OF ANY SUCH EQUIPMENT OR CONNECTIONS, NOR WILL IT BE LIABLE FOR ANY DAMAGE THERETO.

6. Performance. ARTS will use commercially reasonable efforts not to knowingly include or to introduce any computer virus into the Data Model Conformance Process or into the software comprising the Conformance Process. User understands and acknowledges that the Data Model Conformance Process is not entirely secure against malicious attacks on and/or unintentional tampering to the Conformance Process. THEREFORE, ARTS HEREBY DISCLAIMS ANY AND ALL LIABILITY FOR ANY DAMAGE TO USER OR ITS SOFTWARE OR COMPUTER SYSTEM THAT ARISES IN ANY WAY IN CONNECTION WITH USER’S USE OF THE CONFORMANCE PROCESS.

7. Assignment. User shall not assign, sublicense, transfer, rent or share User's rights under this Agreement without the prior, written consent of ARTS. Any assignment, sublicense or transfer by User without the required consent shall be void at the option of ARTS. This Agreement shall be binding upon the successors and permitted assigns of User.

8. Conformance Letter and ARTS Conformant Logo License. ARTS has the sole discretion to evaluate and determine the Conformance Process results and Conformance Process criteria developed by ARTS. ARTS will issue a Data Model Letter of Conformance for each software application that passes the Conformance Process. For each version of User’s software that ARTS determines passes the Conformance Process, ARTS hereby grants User with a revocable, nontransferable, nonexclusive, limited license to use the applicable ARTS Conformant logo with the same software for the remainder of the term in accordance with the provisions of this Agreement, the ARTS Logo Policy, and all ARTS guidelines. Nothing in this Agreement shall be construed to require ARTS to find User’s software conformant. No license rights to use the ARTS Conformant logo are granted hereunder to any User for software unless ARTS first determines that the User’s software passes the Conformance Process, and ARTS demonstrates such conformance by issuing a Data Model Letter of Conformance. Conformance, if determined by ARTS, will only apply to the version of software tested and identified as conformant by ARTS. User acknowledges and agrees that it will not misrepresent the conformant status of any of its software. Violation of this Section 8 by User will result in the termination of this license granted hereunder. ARTS reserves all rights not expressly granted to User herein.

In addition, if ARTS determines that User’s software is conformant, User hereby grants ARTS with a limited, nontransferable, royalty-free license to use and display its name and logo, the name of the software application that passes the Conformance Process, the version of the software application, and other related information as set forth in the guidelines established by ARTS.

9. Fees. All fees are due as set forth below and in the ARTS Data Model Conformance Testing Application and Agreement as amended from time-to-time by ARTS. Initially, the fee for Conformance Process testing is One Thousand Dollars for each Conformance Process conducted. Specifically, the price is One Thousand Dollars for each of the following: conducting one Conformance Process of one software application, each repeated Conformance Process testing on the same software application, testing of a previously tested software application with a Conformance Process upgrade, and testing a software application upgrade with the Conformance Process previously tested.

Additional fees apply for additional technical assistance, auditing, and related expenses as set forth on the ARTS Data Model Conformance Testing Application and Agreement. Except for taxes on ARTS’ income received under this Agreement, any taxes or duties assessed for the Conformance Process are additional to the fees stated and are the sole responsibility of the User.

User acknowledges that ARTS is unable to provide any refunds for amounts paid hereunder.

10. Warranties and Disclaimer. User warrants and represents that it is the sole and exclusive owner of and has all right, title, and interest in and to the software application tested as well as the User and the software’s trademarks, trade names and logos. Furthermore, User warrants and represents that it has the right to enter into this Agreement and to grant the license to ARTS to use the software application, its name, and User’s name and logo.

THE CONFORMANCE PROCESS SHOULD NOT BE CONSTRUED TO GUARANTEE THE SUITABILITY OF ANY USER SOFTWARE APPLICATION FOR THE PURPOSE FOR WHICH IT WAS CREATED. THE CONFORMANCE PROCESS DOES NOT CERTIFY AND SHOULD NOT BE USED TO CERTIFY THE PERFORMANCE OR FEATURES OF THE SOFTWARE APPLICATION. THE ARTS CONFORMANCE PROCESS DELIVERED PURSUANT TO THIS AGREEMENT IS MADE AVAILABLE "AS IS" AND ARTS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; SUCH WARRANTIES ARE SPECIFICALLY DISCLAIMED WITH REGARD TO ALL ARTS PRODUCTS AND SERVICES.

11. Limitation of Liability. NEITHER ARTS NOR THE NATIONAL RETAIL FEDERATION SHALL BE LIABLE TO USER UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR LOST PROFITS OR FOR LOSS OF STORED DATA OF OR FOR ANY CLAIM OR DEMAND MADE BY USER OR MADE AGAINST USER BY A THIRD PARTY ARISING FROM THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, EVEN IF ARTS AND/OR NATIONAL RETAIL FEDERATION IS/WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER ARTS OR THE NATIONAL RETAIL FEDERATION BE LIABLE TO USER IN AN AMOUNT EXCEEDING THE FEES PAID BY USER TO ARTS UNDER THIS AGREEMENT.

12. Indemnification. User will indemnify, protect and hold harmless ARTS, the National Retail Federation, and their respective affiliates, directors, officers, employees and agents from and against any and all losses, liabilities, judgments, suits, actions, proceedings, claims, penalties, damages or costs (including reasonable attorneys fees and costs as incurred) resulting from or arising out of (i) User’s breach of this Agreement or (ii) User’s negligent or intentional acts or omissions under this Agreement.

13. Term. This Agreement will remain in effect for two years from the date that User signs the IXRetail Conformance Testing Application and Agreement or until terminated pursuant to the terms and conditions of this Agreement, whichever occurs first.

14. Termination. In addition to any other remedy, ARTS may terminate this Agreement immediately with notice, with or without cause, and without any liability to User. User may terminate this Agreement only for material breach of this Agreement by ARTS with three days prior, written notice to ARTS if ARTS does not cure such breach during this period. Termination of this Agreement will not negate any obligations arising from or accruing from authorized activities of either party up to the effective date of termination. Upon termination of this Agreement, User will promptly return all materials and documents relating to the Conformance Process and any copies thereof, regardless of format or media, to ARTS; and electronic copies of such materials must be destroyed immediately by User. Upon the request of ARTS, User’s senior officer will certify, in writing, compliance with this Section 14.

15. Disputes. Any dispute between ARTS and User arising out of or relating to this Agreement that is not resolved first by the good faith discussions of the parties, shall be exclusively resolved by submitting the dispute to binding arbitration conducted by the American Arbitration Association in Washington D.C. in accordance with the laws of the District of Columbia then in effect. The decision of the arbitrators may be entered in any court having jurisdiction thereof. Nothing in this Agreement shall prevent either party from seeking injunctive relief or any other provisional remedy or equitable relief, from any court having jurisdiction over the parties and the subject matter of the dispute to protect any of their respective rights.

16. Independent Contractor. In connection with this Agreement, each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the parties for any purpose.

17. General Provisions. Headings used in this Agreement are for reference only and shall not be deemed a part of this Agreement. This Agreement shall be governed by and construed in accordance exclusively with the laws of the District of Columbia without regard to its conflict of laws principles. The failure to insist on strict performance of any requirement of this Agreement shall not be deemed to waive any future failure of performance or breach hereof. If any clause or provision of this Agreement is deemed illegal, invalid, or unenforceable because of future or present laws or any rule or regulation of any governmental body or entity, effective during its term, the remaining parts of this Agreement shall not be affected thereby unless such invalidity is essential to the rights of both parties. This Agreement shall become effective and binding when the User agrees with the terms by clicking “I AGREE” at the end of this Agreement. Provisions 3, 5, 6, 10, 11, 12, 14, 15, and 17 shall survive the expiration or termination of this Agreement. This Agreement (including the Data Model Conformance Testing Application and Agreement incorporated herein by reference) constitutes the entire understanding of the parties with respect to its subject matter. The terms of this Agreement will prevail over any prior communications, negotiations, or understandings. No modification to this Agreement will be binding, unless in writing and signed by an authorized representative of each party. In the event of any conflict between the terms of the documents permitting access to and governing operation of the Data Model Conformance Process, the following shall be the order of precedence: Terms of Use for Data Model Conformance Process and the ARTS Data Model Conformance Testing Application-Phase I.

USER ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND AGREES TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.

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