These Publisher Terms of Service (this “Agreement”) are between Shopsense, Inc., a Delaware corporation (“Shopsense”), and the business or organization agreeing to these terms and conditions in order to use the Shopsense Product (“Publisher”) and contains the terms and conditions governing your access to and use of the Shopsense Product.

1. ‍Shopsense Product
   1. Provision of Shopsense Product.  Subject to this Agreement, Shopsense will make the Shopsense Product available to Publisher pursuant to this Agreement and the applicable Order Form, and hereby grants Publisher a non-exclusive right to access and use the Shopsense Product in connection with the applicable Publisher Properties during the applicable subscription term.  
   2. Integration Activities.  For each Order Form, the parties agree to complete the integration of the Shopsense Product with the applicable Publisher Properties as set forth in the Documentation.  Publisher will, as part of such integration, provide Shopsense with the Publisher Content necessary for Shopsense to complete such integration, and Shopsense will use the Publisher Content to complete such integration.  
   3. Publisher Responsibilities.  
      1. Publisher acknowledges that Shopsense’s provision of the Shopsense Product is dependent on Publisher providing all reasonably required cooperation, and Publisher will provide all such cooperation in a diligent and timely manner.  Publisher will (i) prevent unauthorized access to or use of the Shopsense Product and notify Shopsense promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Shopsense Product and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Shopsense Product, including as set forth in the Documentation.  Publisher will be solely responsible for its failure to maintain such equipment, software and services, and Shopsense will have no liability for such failure.  As between the parties, Publisher is responsible for the content and accuracy of Publisher Content.  
      2. Publisher will not place Ads adjacent to any content that (i) promotes or contains content or activity that is defamatory, false (e.g., fake news), deceptive, obscene, hateful (e.g. hate speech), sexually explicit, violent (including the use of firearms), discriminatory, illegal, harmful, invasive of another’s privacy, threatening, abusive, harassing or offensive, (ii) contains, links to, uses or otherwise causes the downloading of any malicious code, or (iii) artificially increases impression, click or engagement behavior for the purpose of increasing advertising or commerce revenue, including but not limited to, through made-for-advertising sites or automated or other invalid means.
   4. Mutual Support.  Each party will provide the other party with as-needed support (e.g., go-to-market, design, operational, basic troubleshooting, etc.) with respect to, in the case of Shopsense, the Shopsense Product or, in the case of Publisher, the Publisher Properties, in each case by personnel who have been adequately trained for such purposes.
   5. Privacy.  On each Publisher Property that integrates with the Shopsense Product, Publisher will provide privacy notices that comply with and are displayed in accordance with requirements of applicable law and that provide notice of the collection and use of personal information as well as describing Users’ choices and options regarding that collection and use.  
   6. Use of Data.
      1. As used herein the following terms shall have the following definitions:
         1. “Performance Data” is data gathered during use of the Shopsense Product  pursuant to the applicable Order Form (e.g., number of impressions, interactions, and header information), but excluding Site Data and System Data.
         2. “Site Data” is any data that is (A) preexisting Publisher data used by Publisher pursuant to the applicable Order Form; (B) gathered pursuant to the applicable Order Form during delivery of an Ad that identifies or allows identification of Publisher, the Publisher Property or the Publisher’s brand, content, context, or users as such; or (C) entered by Users on any Publisher Property (for clarity, excluding the on the Shopsense Product).
         3. “Collected Data” consists of Performance Data and Site Data.
         4. “Repurposing” means retargeting a User or appending data to a non-public profile regarding a User for purposes other than performance of the applicable Order Form.
      2. Use of Collected Data.  Unless otherwise authorized by Publisher, Shopsense will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used by Shopsense for Repurposing so long as it is not appended with any Site Data; or (B) disclose Site Data to any Related Entity or third party except (1) in connection with its provision of the Shopsense Product, (2) for reporting purposes or (3) in response to a legal demand or process.
   7. Publisher Related Entities.  Any Related Entity of Publisher will have the right to enter into an Order Form executed by such Related Entity and Shopsense and this Agreement will apply to each such Order Form as if such Related Entity were a signatory to this Agreement.  With respect to such Order Forms, such Related Entity becomes a party to this Agreement and references to Publisher in this Agreement are deemed to be references to such Related Entity.  Each Order Form is a separate obligation of the Publisher entity that executes such Order Form, and no other Publisher entity has any liability or obligation under such Order Form.
2. ‍Payments
   1. Payments and Reports. Unless otherwise set forth in the applicable Order Form, Shopsense will pay Publisher the revenue share set forth in such Order Form, due and payable, once Publisher has earned a minimum of $1,000 (one thousand dollars), within sixty (60) days of the end of the month in which payment was received from Affiliate Network Members and/or Advertisers. Shopsense will provide reports accompanying each payment documenting Shopsense’s calculation of the applicable revenue share.    
   2. Payment Disputes. In the event of a good faith dispute with regard to any commerce payment, Shopsense has the right to withhold such disputed amount while the parties attempt to resolve the dispute.  The parties will work together in good faith to resolve any such dispute as soon as reasonably practicable.  The controlling measurement used for calculating revenue share will be the reported data generated by Shopsense’s platform.
   3. Payment Deductions. If an Affiliate Network Member and/or Advertiser rejects a transaction due to “breakage” (e.g. product returns, credit card fraud, etc.), the Affiliate Network Member and/or Advertiser may deduct the related revenue from the net payment to Shopsense. Shopsense is authorized to deduct the amount of such revenue share relating to the disputed or rejected transaction from Publisher's monthly payment. If Shopsense has already paid Publisher the related revenue share pursuant to the terms of this Agreement, Shopsense is authorized to deduct the amount from Publisher's next monthly payment. If there are no subsequent fees due to Publisher due to expiration or termination of this Agreement, Publisher shall reimburse Shopsense the amount of the disputed fees no later than thirty (30) days after such expiration or termination.
   4. Taxes.  Publisher will pay all taxes (including excise, sales, use, consumption, value-added or withholding taxes), customs or import duties, or any other levies, tariffs, duties or governmental fees that are due or payable in connection with this Agreement (“Taxes”), with the exception of taxes on Shopsense’s net income. Each party agrees to cooperate in good faith with respect to reasonable requests from the other party regarding Tax-related forms, documentation or other information relating to this Agreement that may be necessary or appropriate.
3. Proprietary Rights
   1. Proprietary Rights.  As between the parties, Shopsense exclusively owns all right, title and interest in and to the Shopsense Product, System Data and Shopsense’s Confidential Information, and Publisher exclusively owns all right, title and interest in and to the Publisher Properties, Publisher Content and Publisher’s Confidential Information.  “System Data” means data collected by Shopsense regarding the Shopsense Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Shopsense Product.  
   2. Feedback.  Publisher may from time to time provide Shopsense suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Shopsense Product.  Shopsense will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Shopsense will have the full, unencumbered right, without any obligation to compensate or reimburse Publisher, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.  All Feedback is provided “AS IS” and Shopsense will not publicly identify Publisher as the source of Feedback without Publisher’s permission.
   3. Product Improvement and Aggregated Insights.  Publisher further agrees that, notwithstanding anything to the contrary in this Agreement, Shopsense is hereby granted the right to aggregate, collect, retain and analyze Publisher Content and other information relating to the performance of the Shopsense Product and will be free (during and after the term hereof) to use such data and other information solely in an aggregated and anonymized format that does not identify Publisher or any individual to provide and improve Shopsense’s products and services and to share publicly aggregated and anonymized information and insights.
4. ‍Confidentiality; Restrictions

1. Confidentiality.  Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder.  However, the receiving party may disclose such Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.  
2. Technology/Product Restrictions.  Publisher will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify or create derivative works of the Shopsense Product; (b) attempt to probe, scan or test the vulnerability of the Shopsense Product, breach the security or authentication measures of the Shopsense Product without proper authorization or willfully render any part of the Shopsense Product unusable; (c) use or access the Shopsense Product to develop a product or service that is competitive with Shopsense’s products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Shopsense Product or otherwise offer the Shopsense Product on a standalone basis; (e) generate impressions or clicks on Ads through any automated, deceptive, fraudulent or other invalid means, or encourage or require any persons to click on Ads through offering methods that are manipulative, deceptive, malicious or fraudulent; or (f) otherwise use the Shopsense Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
3. Injunctive Relief.  In the event of actual or threatened breach of the provisions of this Section, Shopsense will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

5. ‍Warranties and Disclaimers
   1. Mutual.  Each party warrants that it has the legal power and authority to enter into this Agreement.
   2. Publisher.  Publisher warrants that (a) it has all rights necessary to provide any information, data, properties or other materials that it provides hereunder, and to permit Shopsense to use the same as contemplated hereunder; and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Shopsense Product.
   3. DISCLAIMERS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  SHOPSENSE DOES NOT REPRESENT OR WARRANT THAT THE SHOPSENSE PRODUCT WILL BE ERROR-FREE OR GENERATE ANY PARTICULAR AMOUNT OF REVENUE.  SHOPSENSE IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF.
6. ‍Indemnification
   ‍Publisher will defend Shopsense against any claim, demand, suit, or proceeding (“Claim”) made or brought against Shopsense by a third party arising out of (A) the Publisher Properties; (B) use of the Shopsense Product by Publisher not in accordance with this Agreement; (C) modification of the Shopsense Product by or on behalf of Publisher; and (D) Publisher Content, and Publisher will indemnify Shopsense for any damages finally awarded against Shopsense (or any settlement approved by Publisher) in connection with any such Claim.

7. ‍Limitation of Liability
   ‍EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR PUBLISHER’S BREACH OF SECTION 4, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID AND/OR PAYABLE TO PUBLISHER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

8. ‍Termination

1. Term.  The term of this Agreement will commence on the date you first use the Shopsense Product and continue until terminated as set forth below.  
2. Termination.  Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
3. Survival.  Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each receiving party will return or destroy, at the disclosing party’s option, any Confidential Information of such disclosing party in the receiving party’s possession or control.

9. General
10. These Publisher Terms of Service (this “Agreement”) are between Shopsense, Inc., a Delaware corporation (“Shopsense”), and the business or organization agreeing to these terms and conditions in order to use the Shopsense Product (“Publisher”) and contains the terms and conditions governing your access to and use of the Shopsense Product.This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter except as agreed and executed by the parties in an Order Form, or in written agreements expressly accepted and executed by both parties. This Agreement will be governed by the laws of the State of California, without regard to its conflict of law principles to the contrary. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, that provision will be deemed severable and will not affect the validity and enforceability of the remaining provisions. No failure or delay by a party in exercising any right, power, or privilege under this Agreement will operate as a waiver thereof and any waiver must be set forth in a signed writing. Publisher agrees that, except as otherwise provided under this Agreement, all notices and other communications may be sent to Publisher by e-mail to the email address in your account settings. Publisher must send Shopsense all notices and other communication relating to us, the Shopsense Product, or this Agreement by using the Contact Us link found on Shopsense’s website as well as emailing notice@shopsense.ai. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to this Agreement. Shopsense may assign or transfer this Agreement, in whole or in part, without restriction, provided the assignee agrees to be fully bound by this Agreement. Shopsense may modify any of the terms and conditions contained in this Agreement at any time and in its discretion by posting a change notice or a new agreement on its website. IF ANY MODIFICATION IS UNACCEPTABLE TO PUBLISHER, ITS ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. PUBLISHER’S CONTINUED USE OF THE SHOPNSESE PRODUCT FOLLOWING SHOPSENSE’S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON ITS WEBSITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. Shopsense reserves the right to modify or discontinue offering all or any part of the Shopsense Product at any time without notice. Publisher acknowledges and agrees that Shopsense may use subcontractors to provide the Shopsense Product and perform its obligations under this Agreement. In this Agreement, “including” means “including without limitation”.

10. ‍Definitions.
    The following terms, when used in this Agreement will have the following meanings:
    
    “Ad” means advertising content provided to Publisher to display on Publisher Properties via the Shopsense Product from Affiliate Network Members and/or Advertisers.
    
    “Advertiser” means a merchant, retailer, brand or other advertiser seeking to market and promote its products and/or services.
    
    “Affiliate Network Member” means a member of an affiliate network that has a marketing or promotional arrangement with an Advertiser.
    
    “Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
    
    “Documentation” means Shopsense’s standard usage documentation for the Shopsense Product.
    
    “Order Form” means an order form or other similar document that sets forth the specific Shopsense Product to which Publisher is subscribing, fees to be paid to Publisher and Shopsense, Publisher Properties to be integrated with such Shopsense Product, and subscription term, and that references this Agreement and is mutually executed by the parties.  
    
    “Publisher Content” means any and all data, content and materials uploaded by Publisher to enable integration of the applicable Publisher Properties with the Shopsense Product or displayed by Publisher on the applicable Publisher Properties in connection with such integration.
    
    “Publisher Properties” means mobile properties, websites, and other digital properties that are owned, operated or controlled by Publisher.
    
    “Shopsense Product” means Shopsense’s AI-driven SaaS-based platform for publishers to power retail experiences and integrate ads for shoppable content into their properties, including providing Users with the ability to shop for products.  
    
    “Third Party Platform” means any product or platform not provided by Shopsense that Publisher elects to use with the Shopsense Product.
    
    “User” means any user of a Publisher Property that interacts with the Shopsense Product via such Publisher Property.