1. Definitions

1.1 “Agreement” means collectively, these General Terms and Conditions, together with each Order Schedule and all attachments, exhibits, schedules, policies, and instructions incorporated by reference thereto.

1.2 “Company” means the entity identified as such on the first page of the applicable Order Schedule which incorporates these General Terms and Conditions.

1.3 “Company Data” means information submitted by, or entered by a User including, but not limited to, account information, credit card information, bank account information, accounting information, transactions and reports.

1.4 “Confidential Information” means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”), which is marked “confidential” or “proprietary” or which should reasonably be understood by the Receiving Party to be confidential or proprietary, including, but not limited to, the terms and conditions of this Agreement, and any information that relates to business plans, services, marketing or finances, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, and algorithms of the Disclosing Party.

1.5 “Documentation” means the written instructions or manuals, including any updates thereto, relating to the use of the Services. Documentation may be more fully described in the applicable Order Schedule.

1.6 “Error” means the failure of the Services to substantially conform to the Documentation.

1.7 “Intellectual Property” means any intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, trademarks (including logos, slogans, trade names, service marks), patent rights (including patent applications and disclosures), know-how, inventions, rights of priority, and trade secret rights, recognized in any country or jurisdiction in the world.

1.8 “Services” means the online, Internet-based WMS services (including Documentation therefor), more fully described in the applicable Order Schedule, that are provided by MSA Systems through use of the System.

1.9 “System” includes the software and hardware used to provide the Services to Company over the Internet, including application software, Web and/or other Internet servers, any associated offline components, and all updates thereto.

1.10 “User” means a named individual who is an employee, consultant, contractor or agent of Company and who is authorized to use the Services, for whom Company has paid fees and who has been supplied user identifications and passwords by Company (or by MSA Systems at Company’s request).

2. Services

2.1 License. Subject to the terms and conditions of the applicable Order Schedule, MSA Systems grants Company a non-exclusive, non-transferable, non-sublicenseable right to have each User access and use the Services for its internal business purposes.

2.2 Subscription. User subscriptions are for concurrent Users, meaning the subscribed number of users is the maximum number of users that can be logged in at one time. If more users attempt to log in than concurrent user spaces subscribed, the longest logged in person will be logged out to accomodate until more concurrent user subscriptions are purchased to remedy this.

2.3 Restrictions. Company will not, and will not allow any third party to (a) modify, copy, or otherwise reproduce the System in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the software used in the System; (c) provide, lease or lend the Services or System to any third party except as expressly authorized hereunder; (d) remove any proprietary notices or labels displayed on the System; (e) modify or create a derivative work of any part of the System; (f) use the Services or System for any unlawful purpose or (g) create Internet “links” to or from the System, or “frame” or “mirror” any of QStock Inventory’s content which forms part of the System.

2.4 Third-Party Providers. Certain third-party providers, some of which may be listed on pages within MSA Systems’ website, offer products and services related to the Services, including implementation, customization and other consulting services related to customers’ use of the Services and applications (both offline and online) that work in conjunction with the Services, such as by exchanging data with the Services or by offering additional functionality within the user interface of the Services. MSA Systems does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by MSA Systems as “certified,” “validated” or otherwise. Any exchange of data or other interaction between Company and a third-party provider, and any purchase by Company of any product or service offered by such third-party provider, is solely between Company and such third-party provider.

3. Fees, Duration & Payment

3.1 Fees. MSA Systems’ current fee schedule is included in the applicable Order Schedule. MSA Systems reserves the right to change fees or to institute new fees at any time. Company will be notified in advance of the effective date of changes in fees or new fees via electronic mail. Such changes or new fees will become effective upon the later of Company’s next billing cycle or 30 days from the date of notice; however such revised fees will not affect the prices for Services specified on the then current Order Schedule during its term.

3.2 Duration of User Subscriptions. Unless otherwise stated in the applicable Order Schedule: (a) all initial User subscriptions will begin and continue for the initial Subscription Period set forth in the applicable Order Schedule (the initial “Subscription Period”); (b) any additional User subscriptions added after the beginning of a Subscription Period will continue for the duration of that Subscription Period; (c) pricing for such additional User subscriptions will be the same as that for the pre-existing User subscriptions, prorated for the remainder of the then-current Subscription Period; and (d) all User subscriptions will automatically renew for additional Subscription Period(s) of one year at the then current QStock price and subject to the current version of these General Terms and Conditions on the date of renewal unless either party gives the other party notice of non-renewal at least 30 days prior to the end of the relevant Subscription Period.

3.3 Payment. Fees for the Services will be billed in advance as specified in the applicable Order Schedule. Subscriptions added during the term will be pro-rated and billed for the remainder of the current Order Schedule term. Company will pay amounts due and properly invoiced within the period specified on the invoice.

3.4 Suspension of Services. In the event that funds are unavailable from Company’s account and/or Company’s account is 10 days or more overdue, in addition to any of its other rights or remedies, MSA Systems reserves the right to terminate the applicable Order Schedule, these General Terms and Conditions, and/or access to the Services.

3.5 Overdue Payments. Any late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

3.6 Taxes. All fees listed in the Order Schedule(s) are exclusive of any taxes. Company will responsible for all taxes, including sales or use taxes, imposed on such amounts, excluding taxes on MSA Systems’ net income.

3.7 Billing and Contact Information.
Company will maintain complete and accurate billing and contact information on the Services at all times.

4. Proprietary Rights

4.1 Ownership. As between MSA Systems and Company, MSA Systems owns all rights, including Intellectual Property rights, in the Services and System, any materials relating thereto, and any modifications, enhancements, customizations, updates, revisions or derivative works thereof, and all results of consulting services, whether made pursuant to this Agreement or a separate  statement of work. No transfer of ownership will occur under this Agreement. All rights not expressly granted to Company are reserved by MSA Systems.

5. Confidentiality and Security

5.1 Confidential Information. Each party hereby agrees that it will not use or disclose any Confidential Information received from the other party other than as expressly permitted under the terms of the Agreement or as expressly authorized in writing by the other party. Each party will use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party will disclose the other party’s Confidential Information to any person or entity other than its officers, principals, employees and subcontractors who need access to such Confidential Information in order to effect the intent of the Agreement and who are bound by confidentiality terms no less restrictive than those in the Agreement.

5.2 Exceptions. The restrictions set forth in Section 5.1 will not apply to any Confidential Information that the Receiving Party can demonstrate (a) was known to it prior to its disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the Receiving Party; (e) has been approved for release by the Disclosing Party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.

5.3 Injunctive Relief. The parties agree that a breach of Section 5.1 may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the Disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by the Receiving Party.

5.4 Company Data. Company Data shall be treated as Confidential Information under this Agreement.

5.5 Security. MSA Systems uses commercially reasonable practices, including encryption and firewalls, to ensure that Company Data is disclosed only to Company and Users.  However, Company acknowledges that the internet is an open system and MSA Systems cannot and does not warrant or guarantee that third parties cannot or will not intercept or modify Company Data.

5.6 Passwords. As part of the registration process, Company will select passwords for accounts. Company is responsible for maintaining the confidentiality of passwords, and Company agrees that MSA Systems has no liability with regard to the use of such Passwords by third parties. Company agrees to notify MSA Systems immediately if Company has any reason to believe that the security of Company’s account has been compromised.

6. Availability

6.1 Availability. MSA Systems uses commercially reasonable efforts to maintain availability of the Services and System 24 hours per day, 7 days per week.

6.2 Downtime. Scheduled and unscheduled interruptions may occur, and MSA Systems does not warrant uninterrupted availability of the System. Normal software or hardware upgrades are scheduled for nights and weekends, Pacific Standard Time, and designed to cause a minimum amount of interruption to Services and System availability. Company will be notified of scheduled interruptions in advance. In the event that an unscheduled interruption occurs, MSA Systems will use commercially reasonable efforts to resolve the problem and return the System to availability as soon as practical. During these scheduled and unscheduled interruptions, Company may be unable to transmit and receive data through the Services. Company agrees to cooperate with MSA Systems during the scheduled and unscheduled interruptions if assistance from Company is necessary in order to restore the System to working order.

6.3 Changes. MSA Systems reserves the right to modify or temporarily suspend use of the Services or portions thereof. MSA Systems may also temporarily restrict Company’s access to parts of the Services for maintenance or system administration purposes without notice or liability.

7. Support and Services

7.1 Technical Support. MSA Systems will provide standard technical support to two designated Users of Company who have undergone MSA Systems’ training for users of the Services. MSA Systems will provide such support through a variety of systems, including on-line help, FAQ’s, training guides and templates and use of the live help. MSA Systems is not obligated to maintain or support any customization to the System or Services except under a separate agreement signed by the parties.

7.2 Consulting Services. Any consulting services, training or other requirements not expressly stated in this Agreement or in a separate statement of work signed by the parties are outside the scope of this Agreement and only will be provided for additional fees. Fees for such items are payable as specified in the applicable Order Schedule and unless otherwise specified will be paid upon receipt of invoice. For the purposes of computing daily rates, MSA Systems’ standard workday is 8 hours. Changes in any statement of work will be effective only if a change request is signed by the parties.

8. Term & Termination

8.1 Term. This Agreement commences on the Effective Date and will terminate when (a) all Subscription Periods and any

Renewals thereof entered into pursuant to these General Terms and Conditions have expired or been terminated or (b) this Agreement is otherwise terminated as provided for herein.

8.2 Termination for Cause. Either party may terminate these Terms and Conditions and the affected Order Schedule for cause upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In addition, MSA Systems may terminate this Agreement immediately for any failure of Company to pay amounts due by it that are 10 days or more past due.

8.3 Effect of Termination. Termination will not relieve Company of the obligation to pay any fees due or payable to MSA Systems prior to the effective date of termination, including annual fees, implementation fees, training fees, User subscription fees, or any other fees or payments that Company has committed to under the Agreement. Sections 4, 8.4, 9.4, 10, 11 and 12 will survive for 3 years after termination of the Agreement.

8.4 Return of Materials. All Confidential Information, designs, drawings, formulas or other data, financial information, business plans, literature, and sales aids of every kind will remain the property of the Disclosing Party. No later than 30 days after termination, each party will prepare all such items in its possession for shipment to the other at the Disclosing Party’s expense. The Receiving Party will not make or retain any copies of any confidential information.

8.5 Company Data. In the event of any termination of the applicable Order Schedule or these General Terms and Conditions, Company Data will be made available to Company either from MSA Systems or through a third party offsite storage provider for up to 90 days after termination. Reasonable storage charges may apply.

9. Warranties

9.1 Authority. Each party represents to the other that it is a valid legal entity and is in good standing or validly existing under the laws of the state of its incorporation and residence. Each party represents that it has all the requisite legal power and authority to execute, deliver and perform its obligations under the Agreement; that the execution, delivery and performance of the Agreement has been duly authorized; that the Agreement is enforceable in accordance with its terms; that no approval, authorization or consent of any governmental or regulatory authorities is required to be obtained or made in order for it to enter into and perform its obligations under the Agreement.

9.2 Warranty. MSA Systems warrants that (i) the Services will function substantially in conformance with the Documentation, and (ii) any consulting services provided by MSA Systems will be performed consistent with accepted industry standards.

9.3 Notices and Correction of Errors. Company will notify MSA Systems in writing of any Errors. MSA Systems will use commercially reasonable efforts, at its own expense, to determine if there is an Error, and to correct or remedy Errors within 30 days of such notice. Company will make reasonably appropriate adjustments to mitigate adverse effects of any Error until MSA Systems corrects or remedies such Error.

9.4 DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MSA SYSTEMS DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, SYSTEM, AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. COMPANY ACKNOWLEDGES AND AGREES THAT NEITHER QSTOCK NOR ANY SYSTEM, SERVICES, DOCUMENTATION, DATA, OR MATERIALS PROVIDED BY MSA SYSTEMS WILL BE CONSTRUED AS PROVIDING ACCOUNTING, TAXATION, FINANCIAL, INVESTMENT, LEGAL OR OTHER ADVICE TO COMPANY, END USERS, OR ANY THIRD PARTY. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS.

9.5 Remedies. For any breach of the warranties contained in Section 9.2 above, Company’s exclusive remedy, and MSA Systems’ entire liability, shall be (i) in the case of an Error in the Services, the correction of Errors that cause breach of the warranty, or if MSA Systems is unable to make the Services operate as warranted, Company shall be entitled to terminate this Agreement; and (ii) in the case of a breach of warranty with respect to the consulting services, the reperformance of the consulting services, or if MSA Systems’ is unable to perform the consulting services as warranted, Company shall be entitled to recover the fees paid to MSA Systems for the nonconforming consulting services.

10. Indemnification

10.1 MSA Systems Indemnification. MSA Systems agrees to indemnify Company against any losses or damages finally awarded against Company incurred in connection with a third party claim alleging that the Company’s use of the unaltered Services or System infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, provided that Company (a) provides prompt written notice of such claim to MSA Systems, (b) grants MSA Systems the sole right to defend such claim, and (c) provides to MSA Systems all reasonable assistance. In the event of a claim or threatened claim under this Section by a third party, MSA Systems may, at its sole option, (i) revise the Services and/or System so that they are no longer infringing, (ii) obtain the right for Company to continue using the Services and System, or (iii) terminate the Agreement upon 10 days notice. THIS SECTION 10.1 REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF MSA SYSTEMS AND THE EXCLUSIVE REMEDY OF COMPANY FOR INFRINGEMENT OR MISAPROPRIATION OF THIRD PARTY RIGHTS.

10.1 Limitation of Liability EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. THE AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF

OF THE ACTION (AND WHETHER IN CONTRACT OR IN TORT) WILL BE LIMITED TO THE LESSOR OF $25,000 OR THE TOTAL AMOUNT PAYABLE TO MSA SYSTEMS UNDER THIS AGREEMENT.

11. General Provisions

11.1 Notices. Except as otherwise specified in the Agreement, all notices under the Agreement will be in writing and will be delivered or sent by (a) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; or (b) U.S. express mail, or national express courier with tracking system, to the address specified in the applicable Order Schedule. Notices will be deemed given on the day actually received by the party to whom the notice is addressed.

11.2 Independent Contractors. The relationship of MSA Systems and Company is that of independent contractors. Neither party has any authority to act on behalf of the other party or to bind it, and in no event will the parties be construed to be partners, employer-employee, or agents of each other.

11.3 Governing Law Arbitration; Venue. The validity, construction and interpretation of the Agreement will be governed by the internal laws of the State of California, excluding its conflict of law’s provisions. Except for the right of either party to apply to a court for a temporary restraining order, a preliminary injunction, or other equitable relief, any controversy, claim or action arising out of or relating to the Agreement will be settled by binding arbitration in Santa Clara County, California, under the rules of the American Arbitration Association by 3 arbitrators appointed in accordance with such rules. The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara County, California for any action permitted under this Section, challenge to this Section, or judgment upon the award entered.

11.4 Assignment. The Agreement may not be assigned by either one of the parties by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Such consent is not required in connection with the assignment of the Agreement pursuant to a merger, acquisition or sale of all or substantially all of the assigning party’s assets.

11.5 Force Majeure. Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the Agreement are delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; government action; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This clause will not apply to the payment of any sums due under the Agreement by either party to the other.

11.6 Compliance with Laws. Each party will be responsible for compliance with all applicable laws and government regulations in the process of marketing, delivering and/or using the Services.

11.7 Press Releases. MSA Systems may use Company’s name and logo in MSA Systems marketing program including use of MSA Systems/QStock website(s), marketing literature, and in press releases.

11.8 Miscellaneous. Headings in the Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement. If any provision of the Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under the Agreement will be construed as a waiver of such right or power. A waiver by either party of any breach by the other party will not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights.

11.9 Counterparts; Fax Signatures. The Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. The parties agree that facsimile signatures are valid signatures for enforcement of the Agreement.

11.10 Order of Precedence. These Terms and Conditions are hereby incorporated by reference for purposes of the Agreement between the parties. The Agreement constitutes the entire agreement between MSA Systems and Company with respect to the subject matter hereof. The Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such subject matter. No modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each party. Notwithstanding applicable law, electronic communications will not be deemed signed writings. Additional Order Schedules may be added to the Agreement by reference to these Terms and Conditions, provided that each such Order Schedule is signed by both parties. No term or condition contained in Company’s purchase order or similar document will apply unless specifically agreed to by MSA Systems in writing, even if MSA Systems has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by MSA Systems.