LIMELOOP, INC.

SERVICES AGREEMENT

Last Updated: June 30, 2022

The LimeLoop, Inc. Services Agreement set out below, together with any Order Form(s) and/or Service Schedules associated therewith, will, when executed by you (the “Effective Date”), as the Customer, form a binding contract with LimeLoop for the purchase or rental of the Products and/or the purchase of the Services set out in the Agreement, Order Forms and/or Service Schedules.

Background

1. LimeLoop is in the business of providing sustainable shipping solutions, consisting of (i) reusable packages (“Reusable Packages” or “Products”), (ii) access to certain software applications and integrations (“Software”), and (iii) if applicable, other implementation services, customization, integration, technical support, onboarding, and training (with Software, collectively, the “Services”). 
2. Customer desires to acquire certain of LimeLoop’s Products and/or Services and LimeLoop desires to provide such Products and/or Services, all on the terms and conditions set forth herein.
3. This Agreement sets forth the general terms and conditions that apply to the purchase, by Customer, of Products and/or Services from LimeLoop.
4. Customer may place an order with LimeLoop for specific Products and/or Services by signing and submitting an order form (an “Order Form”) and by entering into a services schedule (a “Services Schedule”).
5. No order placed via Order Form is accepted until the relevant Order Form is accepted by LimeLoop.  All such Orders are subject to rejection in LimeLoop’s sole discretion.  No order covered by a Services Schedule is accepted until the relevant Services Schedule is accepted by both Parties. Accepted orders will be governed solely by the terms and conditions contained in this Agreement and the applicable Order Form(s) or Services Schedule(s), unless the Parties otherwise mutually agree in writing. Each accepted Order Form and mutually agreed Services Schedule will be deemed incorporated by reference into and made a part of this Agreement. 

IN CONSIDERATION OF THE FOREGOING, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE ACKNOWLEDGED BY THE PARTIES, THE PARTIES AGREE AS FOLLOWS:

Terms

1. Incorporation by Reference.  The statements set out above under the heading “Background” are incorporated by reference and made a part hereof.
2. Fundamental Transaction.
   Pursuant to the terms and conditions of this Agreement, including the applicable Order Form or Services Schedule, LimeLoop will provide to Customer the Products and/or Services set out in such Order Form or Services Schedule and Customer will pay to LimeLoop the Fees associated therewith.
3. Payment of Fees
   1. Customer will pay LimeLoop the fees set out in the applicable Order Form or Services Schedule for the Product and/or Services ordered in accordance with the terms of this Agreement (the “Fees”). If Customer uses Services in excess of or in addition to those contemplated by the Order Form or Services Schedule, or if Products or Services provided otherwise require the payment of additional fees, LimeLoop will bill Customer for applicable additional amounts. Customer is responsible for the payment of any and all taxes, levies, or duties, excluding only United States (federal, state or local) taxes based solely on LimeLoop’s income.
   2. LimeLoop reserves the right to change the Fees and to institute new charges and fees, related to any valued-added improvements to the Services or Products, at the end of the applicable Subscription Duration (as defined in the applicable Order Form or Services Schedule, upon thirty (30) days prior written notice to Customer (which may be sent by email).  Customer may cancel its subscription for any Services or Products without penalty at any time after receipt of notice of an increased Fee or a new or increased charge or fee by notifying LimeLoop within such thirty- (30)-day period.
   3. Full payment for invoices issued in any given month must be received by LimeLoop according to the payment schedule in the Order Form or Services Schedule. Amounts unpaid after their due date are subject to a finance charge equal to the lesser of two percent (2%) per month on any outstanding balance, or the maximum permitted by law. In addition, Customer is responsible for LimeLoop’s costs of collection, including reasonable attorneys’ fees.  Customer’s failure to pay on time may, in LimeLoop’s discretion, result in immediate termination of Services and, upon notification of termination, an obligation to return all Products subject to lease within ten (10) business days, at Customer’s expense. 
   4. If Customer believes in good faith that LimeLoop has billed Customer incorrectly, in order to be eligible for any adjustment or credit Customer must (i) notify LimeLoop in writing no later than thirty (30) days after the due date for payment of the invoice in which the purported error or problem first appeared and (ii) timely pay, and continue to pay, all undisputed amounts.  Upon receipt of any such notification from Customer, LimeLoop will review the matter and, if appropriate, issue an adjustment or refund.  Customer will be responsible for late fees on all disputed amounts that are disallowed by LimeLoop.  All billing inquiries should be directed to LimeLoop’s customer support department. 
4. Limitations on Use.
   1. Customer shall not, directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to re-create the package design or software or underlying structure, proprietary information, intellectual property or know-how of LimeLoop.
   2. Customer shall not modify, alter, tamper with, repair or otherwise create derivative works of the Products or Services or remove, obscure or alter any proprietary rights notice pertaining to the Products or Services.
   3. Customer will use the Products and Software solely in accordance with the purposes set out in this Agreement and any applicable Order Form and/or Services Schedule and will not re-sell, re-purpose, lend, rent, lease, sublicense or otherwise transfer any of the rights granted to Customer hereunder to any third party.
5. Changes to Software. LimeLoop may, in its sole discretion, make any changes to the Software that it deems necessary, advisable, useful or appropriate (a) to maintain or enhance (i) the quality or delivery of LimeLoop’s Products or Services to its customers, (ii) the competitive strength of, or market for, LimeLoop’s Products or Services or (iii) such Software’s cost efficiency or performance, or (b) to comply with applicable law.
6. Confidentiality.
   1. “Confidential Information” means information, relating to a Party and/or its affiliates which is of a confidential, nonpublic or proprietary nature, including but not limited to trade secrets, inventions, processes, programs, documentation, data, service manuals, technical reports, research, development, financial information, sales and marketing plans or information, business plans, concepts, ideas, know-how, processes, techniques, programs, designs, work-in-process, information regarding suppliers, customers, employees, investors, or business operations, and any other information or materials, disclosed by either Party to the other, whether before or after the Effective Date, in whatever form or medium, or otherwise learned or disclosed in the course of discussions, as well as any information generated by a Party that contains, reflects, or is derived from such information.
   2. The definition of “Confidential Information” excludes any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving Party; (ii) is independently developed by the receiving Party without use of, reliance on or reference to the disclosing Party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality to the receiving Party; or (iv) is known by the receiving Party at the time of receipt from the disclosing Party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing Party. 
   3. In the event that either Party receives a request to produce Confidential Information of the other Party pursuant to an order of a court of competent jurisdiction or a facially valid administrative, legislative or other subpoena, that Party shall promptly notify the other Party prior to making such disclosure, unless prior notification is precluded by law or regulation, in which case the Party making disclosure will notify the other Party as soon as reasonably practicable. In all events, the Party making disclosure shall cooperate with the Party owning the Confidential Information subject to such disclosure, at the owning Party’s expense, in connection with that Party’s reasonable and lawful actions to prevent disclosure of or to obtain confidential treatment for such Confidential Information. The Party making disclosure shall limit the disclosure to the fullest extent permitted by law. Any Confidential Information disclosed shall maintain its nature as Confidential Information and shall retain its confidentiality and nondisclosure and nonuse protections hereunder for all purposes other than such legally compelled disclosure. 
   4. Nothing in this Agreement shall be construed to convey any title or ownership rights to the Confidential Information of either Party to the other Party or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the LimeLoop Confidential Information.  Each Party shall take reasonable precautions, but no less than those precautions used to protect its own confidential, nonpublic or proprietary information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the other Party’s Confidential Information.
   5. Each Party shall at all times keep strictly confidential all Confidential Information belonging to the other Party.  Each Party shall restrict access to the other Party’s Confidential Information to only those of its or its affiliates’ employees or agents who (i) require access in the course of their assigned duties and responsibilities related directly or indirectly to the performance of such Party pursuant to this Agreement and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth herein. Each Party shall be liable and responsible for any breach of this Agreement by its or its affiliates’ employees and agents. 
   6. Each Party acknowledges that any unauthorized disclosure or use of the Confidential Information belonging to the other Party may cause the other Party imminent, irreparable injury and that such Party shall be entitled to seek, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other Party does not fulfill its obligations under this Section.
   7. No later than thirty (30) days following termination or expiration of this Agreement, or the earlier written request of the Party owning the Confidential Information, the Party having received the Confidential Information shall return all of the other Party’s Confidential Information together with all materials in any form or medium containing or derived from such Confidential Information, including, in each case, any copies, in whole or in part, thereof, and cease its use or, at the request of the Party owning such information, destroy the same and certify such destruction to the owning Party within such thirty- (30)-day period.
   8. Notwithstanding anything to the contrary contained herein, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Products or Services or any other LimeLoop materials provided to Customer shall be owned by LimeLoop, and Customer hereby agrees to assign any such rights to LimeLoop.  
7. Indemnification. Customer will, at its sole expense, defend, indemnify and hold harmless LimeLoop, its affiliates and their respective employees and agents, from any third party claims, actions, suits or proceedings and pay any agreed to settlement or awarded losses, liabilities, damages, costs and expenses, arising out of (i) any allegation that the Software, Services or Products infringe the intellectual property rights of such third party, or (ii) Customer’s unauthorized use or disclosure of any LimeLoop Confidential Information. 
8. Limitation of Liability. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OR EITHER PARTY’S CONFIDENTIALITY AND NONUSE OBLIGATIONS UNDER SECTION 6, THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THE AGREEMENT, FOR ANY AND ALL CLAIMS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO LIMELOOP UNDER THE ORDER FORM OR SERVICES SCHEDULE THAT GAVE RISE TO SUCH CLAIM DURING THE TWELVE- (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR EVENT GIVING RISE TO THE CLAIM.  
9. Termination.
   1. The term of this Agreement shall commence on the Effective Date and shall continue for the Initial Subscription Duration set out in the applicable Order Form.  Following the Initial Subscription Duration, this Agreement and the related Order Form or Services Schedule will automatically renew for additional periods (each a “Subscription Duration”) of one (1) calendar month each, unless either Party gives the other Party written notice (email acceptable) of non-renewal at least fifteen (15) days prior to the end of the then-current Initial Subscription Duration or Subscription Duration, as the case may be. 
   2. Either Party may terminate this Agreement immediately upon written notice (email acceptable) to the other Party if such other Party materially breaches any of the terms or conditions of this Agreement. In the event that LimeLoop so terminates, Customer will be obligated to pay in full for all Services up to and including the last day of the then-current Subscription Duration and shall be obligated to return to LimeLoop all Products other than those for which it has theretofore paid in full, at its sole cost and expense within ten (10) days following such termination.
10. Representations, Warranties and Covenants.
    1. Each Party represents, warrants and covenants to the other that (i) such Party has the full power to enter into this Agreement and to perform its obligations hereunder and (ii) such Party’s execution of and performance under this Agreement will not breach any oral or written agreement with any third party.
    2. Unless informed to the contrary by Customer in writing, Customer agrees that LimeLoop may use Customer’s name and logo in LimeLoop’s marketing materials and on its website, and identify Customer as a user of the Services; provided, however, that Customer’s name shall not be so used in such a fashion that could reasonably be deemed to be an endorsement by Customer of LimeLoop unless such an endorsement is provided by Customer.
    3. LimeLoop covenants that (i) it will perform the Services in a workmanlike manner and with qualified personnel; (ii) it will comply with all applicable laws and regulations in performing the Services; (iii) the Software will materially comply with its documentation and specifications; and (iv) the Products will be free from material defects in materials and workmanship.
    4. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES AND ANY SOFTWARE PROVIDED HEREUNDER ARE AT CUSTOMER’S SOLE RISK.  ANY PRODUCTS, SERVICES, AND SOFTWARE ARE PROVIDED HEREUNDER ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND.  LIMELOOP MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
11. Legal Notices. All legal notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand; (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email of a PDF or otherwise fully legible document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to receiving Party at its address set forth on the signature page of this Agreement (or to such other address that may be designated by a Party to the other Party from time to time in accordance with this Section). 
12. Entire Agreement; Amendment. This Agreement, together with each Order Form and Services Schedule incorporated herein by reference constitutes the entire agreement between the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written and oral, with respect to such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto.
13. Precedence. In the event of any conflict between this Agreement and an Order Form or Services Schedule, the Order Form or Services Schedule shall control.
14. Severability. If any term or provision of this Agreement or any Order Form, Services Schedule or other ancillary document (each, an “Ancillary Document”), or the application thereof to any person(s) or in any circumstance(s) or jurisdiction, is, for any reason, be found by a court of competent jurisdiction to be invalid, illegal or unenforceable, the court making such finding shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the Parties with respect to such invalid, illegal or unenforceable provision(s) and this Agreement or the relevant Ancillary Document(s), as appropriate, in total, and to enforce such substituted provision(s) or, if such substitution or limitation is not possible, to deem such provision(s) to be deleted from this Agreement or such other Ancillary Document as if never included herein or therein if such court finds that such enforcement does not materially alter the overall intent of the Parties with respect thereto. Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the provisions contained herein or in any Ancillary Document in any jurisdiction shall not affect the validity of any other provision of this Agreement or such Ancillary Document in such jurisdiction or of the invalid, illegal or unenforceable provision in any other jurisdiction.
15. Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not unreasonably be denied, delayed or conditioned; provided, however, that either Party may assign the Agreement in its entirety without such consent to an affiliate or to any successor by way of merger, consolidation or other corporate reorganization of such Party or sale of all or substantially all of the assets of such Party. No assignment or delegation shall relieve the assigning or delegating Party of any of its obligations hereunder. Any purported assignment or delegation in violation of this Section shall be null and void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.
16. No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, expressed or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
17. Relationship of the Parties. The Parties hereto are independent contractors. Nothing in this Agreement creates an agency relationship, partnership, employment, joint venture or similar relationship between the Parties and neither Party shall have authority to bind, commit, or otherwise obligate the other Party in any manner whatsoever.
18. Waivers. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by either Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
19. Governing Law. The Agreement and all claims arising thereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to conflicts of law principles.
20. Survival. The expiration or termination of this Agreement will not extinguish the rights of either Party that accrue prior to, or any obligations that extend beyond, such expiration or termination, either by their inherent nature or by their express terms. The provisions set of this Agreement that by their nature would survive termination or expiration of this Agreement shall so survive including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original, but all of which, when taken together, will constitute one and the same instrument. The Parties agree that the execution of this Agreement or any Order Form, Services Schedule or other Ancillary Document by exchanging pdf signatures, and/or by industry standard electronic signature software and transmission by fax or by electronic mail of an executed counterpart of this Agreement or such Ancillary Document shall be deemed to constitute due and sufficient execution and delivery of such counterpart. In any proceeding arising under or relating to this Agreement, each Party hereby waives any right to raise any defense or waiver based upon execution or delivery of this Agreement or any Ancillary Document by means of such electronic signatures or maintenance of the executed instrument electronically.