ARTS LICENSE AND TERMS OF USE FOR
IXRETAIL INTERFACE FOR THE PHASE I 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 IXRETAIL INTERFACE FOR THE PHASE I CONFORMANCE PROCESS TESTING.

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

            1. Scope. This Agreement sets forth the terms and conditions under which User may use the IXRetail Interface for the Phase I Conformance Process made available by ARTS to determine how certain software applications conform to the IXRetail Standards. This IXRetail Interface for the Phase I Conformance Process is a self-test with an optional audit that compares the data interfaces within User’s software applications against ARTS IXRetail standards, consisting of XML schemas and message sets that have been developed to ease the integration of applications, that support the internal operations of all retail segments to help to determine the conformance of User’s software (“Conformance Process”).

            2. User Obligations. 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 ARTS IXRetail Conformance Testing Application and Agreement, incorporated herein by reference, and user documents as required by ARTS. User will contact the ARTS Conformance Process test administrator to schedule testing and to determine the method of testing. User will assign a person that will be the primary ARTS contact and responsible for conducting the Conformance Process. User will schedule the initial Conformance Process test date and time with the ARTS Conformance Process test administrator and provide requested technical information necessary to prepare for the Conformance Process. User will have the application installed, adjusted, and ready for testing prior to the scheduled initial Conformance Process operation. User will work with the ARTS test administrator to learn how to independently operate the Conformance Process. User will operate the Conformance Process as instructed and as often as desired until User is ready to submit reports to ARTS for scoring and for audit, as applicable. User will provide timely answers to any ARTS questions concerning the reports and audit.

            3. License for User to Conduct the Conformance Process. ARTS hereby grants to User a limited, non-exclusive, revocable and nontransferable license to use the Conformance Process, subject at all times to review and approval by ARTS, solely to test conformance of its software with the ARTS IXRetail standards, schemas, and message sets in accordance with the terms and conditions of this Agreement. This license is provided to User only under the terms of this Agreement, and ARTS reserves all rights not expressly granted to User. User may not use, disclose, copy, modify, or transfer the Conformance Process or any portion thereof, except as expressly provided for in this Agreement. Except as otherwise provided by law, User may not reverse engineer, disassemble, decompile, or translate the Conformance Process, or otherwise attempt to derive the source code of any software which may be related to the Conformance Process. User may not rent, lease, sublicense, assign, loan, sell, or distribute the Conformance Process or any part thereof.

            4. 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.

            5. No Distribution. Access to the Conformance Process is being provided to User for its internal use and purposes subject to the terms and conditions of this Agreement. User agrees that it will not and it will not permit any person under its control to copy, re-circulate, republish or otherwise provide access to or information about the Conformance Process to any third party, including but not limited to, through written, oral or electronic means, without the prior, written consent of ARTS in each instance.

            6. Compliance with Applicable Law. User warrants and represents that it will not use or allow the use of the Conformance Process in violation of any applicable federal, state or municipal laws, regulations, or ordinances or ARTS guidelines or policies including, without limitation, any laws or regulations governing the export of computer software.

            7. Conformance Process Requirements. User will, at its own cost and expense, provide all necessary equipment, operating platforms, and software (other than the Standards of the Conformance Process) to use the Conformance Process. User will also provide, at its own cost and expense, all connections from its own computer systems necessary to access the 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.

            8. Performance. ARTS will use commercially reasonable efforts not to include knowingly or to introduce any computer virus into the Conformance Process or into the software comprising the Conformance Process. User understands and acknowledges that the 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.

            9. 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.

            10. Conformance Letter and ARTS Conformant Logo License. ARTS has the sole discretion to evaluate and determine the Conformance Process results based upon outcomes forwarded by User and Conformance Process criteria developed by ARTS’ advisors. ARTS will issue an IXRetail 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 an IX Retail 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.

            11. Fees. All fees are due as set forth in the ARTS IXRetail Conformance Testing Application and Agreement-Phase I.

            12. 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’s 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 name and User’s trademarks, trade names, and logos.

            13. 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.

            14. 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.

            15. Term. This Agreement will remain in effect for one year from the date that User signs the IXRetail Conformance Testing Application and Agreement (incorporated herein by reference) or until terminated pursuant to the terms and conditions of this Agreement, whichever occurs first. This Agreement will automatically renew for a one one-year term, if ARTS scores User’s Conformance Process results during the initial one-year term and determines that the software earned a passing score, and User complies with all of the terms of this Agreement.

            16. 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, regardless of format or media, to ARTS; 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 16.

            17. 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.

            18.     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.

            19.     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 2, 4, 7, 8, 12, 13, 14, 16, 17, and 19 shall survive the expiration or termination of this Agreement. This Agreement (including the IXRetail Conformance Testing Application and Agreement- Phase I 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 IXRetail Conformance Process, the following shall be the order of precedence: Terms of Use for IXRetail Conformance Process and the ARTS IXRetail Conformance Testing Application-Phase I.

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