Master Services Agreement

Master Services Agreement

This Master Services Agreement is effective for new clients as of June 29, 2021. If you are an existing client, please refer to the Master Services Agreement outlined within your contract.


Licensee and INTURN agree as follows:

“INTURN” means Smart SKUs., INC dba INTURN or one of its affiliates, as set forth in the Ordering Document.

“Licensee” means the party to whom INTURN is to provide products or services pursuant to the Ordering Document (whether identified as “licensee”, “customer”, “client” or similar designation in the Ordering Document). If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination or modification of this Agreement.


INTURN is a provider of online, Web-based applications and services that, among other things, provide purchasers and sellers with access to an inventory management and trading platform that allows parties to manage, buy and sell slow moving goods and obsolete goods inventory.  Customer desires to obtain, and INTURN desires to provide, Customer with access to certain of these applications and services (collectively, the “INTURN Service”) as set forth in one or more order form(s) to be agreed to by the parties (each, an “Order Form”).

The goal of both parties is to have INTURN provide Customer with the INTURN Service to use as a system of record for Customer‘s slow moving and obsolete inventory. Customer will upload, offer and sell all of its slow moving and obsolete inventory from its business segments as listed in the Order Form via the INTURN Service over the Term of the Agreement. Customer agrees that it shall fully cooperate with INTURN in connection with the performance of this Agreement as may be reasonably required, and take such actions as INTURN may reasonably request, including without limitation providing complete and timely information pertaining to product(s) to be listed for sale on the INTURN Service, and other information reasonably required in order to implement the INTURN Service.  Customer agrees to provide product information in a format that follows INTURN’s best practices and will be agreed to by both parties. This information can include, but not be limited to, product data and access to the repository of images. Customer represents and warrants that all information, including but not limited to titles, descriptions, photographs, product data, fair market values and terms displayed on the INTURN Service shall be accurate in all material respects to the best of Customer’s knowledge.

Legal ownership of products listed for sale on the INTURN Service is transferred in accordance with the terms and conditions agreed to by Customer and the purchaser of such products (the “Buyer”). INTURN is not a party to any transaction between any Buyer and Customer and is not and cannot be held responsible for any breach by either party of any of the terms thereof. Customer acknowledges and agrees that its interactions with any organizations and/or individuals on or through the INTURN Service, including without limitation Buyers, and any other contractual terms, conditions, warranties or representations associated with such dealings (express or implied), are solely between Customer and such organizations and/or individuals. Customer agrees that INTURN shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. INTURN cannot ensure that a Buyer or Customer will actually complete a transaction and is not and cannot be held responsible for the completion of a transaction or the transfer or title or legal ownership to goods.

Any transactions that are initiated through the INTURN Service will be completed solely through the INTURN Service, provided that Customer retains sole discretion as to whether or not to complete any transaction but shall not complete any such transaction through any means other than the INTURN Service.  Customer also understands that INTURN’s platform is designed to provide equal value to Customer independent of whether a Buyer chooses to use the platform or uses a spreadsheet exported from the platform.  If a Buyer uses a spreadsheet (outside of the platform), INTURN will provide the ability to re-upload that information back into the platform, provided that the spreadsheet is in INTURN’s standard formats, so that Customer will have access to that data. Any such data submitted by one of Customer’s Buyers will be as Customer’s Transaction Data (as hereinafter defined) and will be shared or used as specified on this Agreement.

To tailor the INTURN Service to the needs of Customer, INTURN may periodically ask for Feedback from Customer users in the form of i) Customer user feedback surveys (e.g., short multiple choice survey on the value of an existing feature or new functions), ii) Customer user interviews (e.g., brief calls or meetings with users for product feedback on a quarterly basis). If Customer provides INTURN any feedback, ideas, concepts or suggestions about the INTURN Service (“Feedback”), Customer  grants INTURN, without charge, the fully paid-up, irrevocable right and license to use, share, commercialize and otherwise fully exercise and exploit such Feedback and all related rights (and to allow others to do so).  These rights survive termination of this Agreement in perpetuity.


    • 2.1 Provision of Service. Subject to the terms and conditions of this Agreement, including, without limitation, Customer’s payment of all amounts that may be due from time to time hereunder, INTURN will provide Customer with access to the INTURN Service as set forth in the Order Form(s) during the Term of this Agreement.  Customer may use the INTURN Service solely for its intended purpose in accordance with this Agreement.
    • 2.2 Authorized User Accounts. Customer may establish accounts for Customer’s employees or independent contractors to use the INTURN Service on behalf of Customer (“Authorized Users”), provided that the number of Authorized Users shall not exceed any limitations set forth in the applicable Order Form.  Customer may not charge any fee for Authorized Users’ access to the Service.  Customer, Authorized Users and INTURN shall immediately notify each other in the event that Customer, an Authorized User or INTURN becomes aware of any violation of the terms of this Agreement.
    • 2.3 Customer Assistance. Customer and INTURN shall provide each other with all information and assistance as reasonably required for the other party to activate and operate the INTURN Service for Customer pursuant to this Agreement.  Customer grants INTURN all reasonable rights or licenses necessary for INTURN to access and use such information in connection with the provision of the Service.
    • 2.4 Support, Maintenance & Service Levels. INTURN will provide Customer with all reasonably necessary maintenance and support regarding use of the INTURN Service during the Term. Technical support for the INTURN Service will be available in English via email ( and/or web-based interface (a) twenty-four (24) hours per day seven (7) days a week for support requests.

During Business Hours (Monday through Friday from 8 a.m. to 6 p.m. Eastern Standard time, excluding United States federal court holidays) INTURN will respond to all support incidents or queries as follows:

Critical: 2-hour response and with a commercially reasonable best effort resolution goal if an update or modification materially adversely affects Customer’s ability to access the INTURN services or the INTURN service service is not available or the INTURN service is not available.

Major: 8-hour response and commercially reasonable best effort resolution goal if the INTURN Services performance is adversely impacted but the INTURN Service remains able to function

Minor: 7 days response time and commercially reasonable best effort resolution goal for issues and incidents of priority lower than the aforementioned Minor standard

Updates to the INTURN Service that are provided without charge to all other customers will be provided at no charge to Customer.  However, certain major functional updates or enhancements may, in INTURN’s discretion, be considered new products that will be made available to Customer at an additional charge.  Scheduled system maintenance will take place during a normal maintenance window during minimal-traffic times.  During such time, the INTURN Service may be unavailable.  Emergency maintenance may be required at other times in the event of system failure.  INTURN will notify Customer of the emergency maintenance event and promptly remedy any system failure and restore the Service.

INTURN will make the INTURN Service available 99.9% of the time, measured on a monthly basis, excluding scheduled maintenance for which INTURN has provided you with at least twenty-four hours advance written notice, provided that no such scheduled maintenance occurs during Business Hours (“Scheduled Maintenance”).  For the avoidance of doubt, the INTURN Services will not be deemed unavailable if  Customer is unable to access the INTURN Service as a result of (i) Customer’s use of the INTURN Service other than as authorized under this Agreement, (ii) any failure of Customer’s internet connectivity, (iii) internet or other traffic problems other than problems arising in or from networks actually or required to be provided or controlled by INTURN or (iv) Customer’s failure to meet any minimum hardware or software requirements specified in the INTURN Service documentation.

  • 2.5 Restrictions. Customer and any Authorized Users may not, and may not permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service; (ii) use, evaluate the INTURN Service for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, that performs functions similar to the functions performed by the Service; or (iii) use the INTURN Service in a service bureau or any other manner to provide services for a third party.  Neither Customer nor any Authorized User shall remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within the Service that are property of INTURN; however, Customer and any Authorized User will be able to remove, obscure, alter any copyright notice, trademarks, logos and trade names or other proprietary rights notices that are property of Customer or that Customer has licensed.  Except for the express rights granted herein, INTURN does not grant any other licenses, whether express or implied, to any INTURN software, services, copyrights, trademarks or other intellectual property.


    • 3.1 Fees. Customer shall pay INTURN the fees set forth in the applicable Order Form for use of the INTURN Service.  Except as set forth in the Order Form, all fees are due within 30 days of the INTURN invoice date, All fees are inclusive of all mandatory deductions such as withholding taxes, but, exclusive of applicable sales, excise, or use taxes excluding New York State based companies.  Customer will provide INTURN with reasonable written notice in the event that it believes that it is required by law to deduct or withhold any amount due hereunder and will cooperate with INTURN in good faith to eliminate or minimize such deductions or withholdings.
    • 3.2 Where Customer in good faith disputes any invoice, Customer shall pay the undisputed amount on a timely basis but is entitled to withhold payment of the disputed amount until the dispute is resolved. Except as provided above, each Party is responsible for its own costs of performing this Agreement. Customer has no other obligation to make any payment of charges, fees or costs in respect of the performance of this Agreement, including the rights that INTURN grants under this Agreement.
    • 3.3 Services outside the scope of the INTURN Service specified in the applicable Order Form will only be chargeable where agreed in writing by the Parties.
    • 3.4 Late Payments. If payment is not made within thirty (30) days of invoice date, INTURN may charge Customer a late fee of two percent (2%) per month or the maximum lawful rate permitted by applicable law, compounded monthly on the total invoice amount. Should Customer not pay amounts when due, INTURN may also (at its discretion and in addition to other remedies it may have) suspend Customer’s access to the Service.


    • 4.1 Services Ownership. INTURN shall own the right, title, and interest in and to the INTURN Service, including all modifications, improvements, upgrades, derivative works thereof, and feedback related thereto and all intellectual property rights therein.  Customer agrees to assign all right, title, and interest it may have in the foregoing to INTURN.
    • 4.2 Confidentiality. “Confidential Information” means all information received from the other Party, in any form, including (without limitation) product and service information, business information, transaction information and personal data.  Notwithstanding the foregoing, Confidential Information shall not include (a) information independently obtained or developed by the recipient without reference to the other party’s Confidential Information (b) information in the public domain, or (c) information that the recipient already knew or possessed.  Neither Party will disclose to any third party, without the prior written consent of the other party, any information of a confidential or proprietary nature that is received from the other party for the purposes of performing its obligations hereunder whether disclosed orally, electronically or in writing.  Furthermore, each party will limit dissemination of confidential or proprietary information to those of its personnel who may need and use it only for the purposes indicated above.  Each party agrees to take such measures to avoid disclosure or dissemination of the confidential or proprietary information as the party may employ with respect to its own confidential or proprietary information.  This restriction will not apply to any information that:  (a) was in the public domain at the time of receipt by the receiving party or has subsequently entered into the public domain other than by reason of the breach of the provisions of this Section 4.2 or any obligations of confidence owed by the receiving party to the disclosing party; (b) is acquired from a third party who owes no obligation of confidence in respect of the information; (c) is already known to the receiving party prior to its receipt of such information from the disclosing party as evidenced by written records; or (d the receiving party is required by law to disclose.
    • 4.3 Inventory and Transaction Data. Customer shall own all data and content collected via the INTURN Service relating to items offered for sale by Customer, items uploaded to INTURN, purchases and sales by Customer and any negotiations related thereto (collectively, “Transaction Data”); provided that INTURN shall have a perpetual, royalty-free, worldwide, right and license to use such Transaction Data during and after the Term:  (a) to operate, improve and enhance the INTURN Service and for other development, diagnostic and corrective purposes in connection with INTURN’s business; and (b) in aggregate or other anonymous de-identified form for marketing purposes or otherwise in connection with INTURN’s business.  Within sixty (60) days following the termination of an Order Form, Customer may request a copy of all Transaction Data related to such Order Form, and INTURN will provide such Transaction Data in the form of CSV files.  For the avoidance of doubt, INTURN shall have no obligation to retain any Transaction Data beyond such sixty (60) day period.


    • 5.1 Warranties. INTURN warrants that the INTURN Service will operate in substantial conformance with their documentation. For any breach of this warranty, Customer’s remedy, and INTURN’s entire liability, shall be the timely correction of such deficient component of the Service.  Customer must report any deficiency in the Services to INTURN in writing within thirty (30) days of becoming aware of such deficiency in order to receive the above warranty remedies.
    • 5.2 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 5.1, INTURN DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE INTURN SERVICE OR ANY SUPPORT RELATED THERETO, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING.  In furtherance, and not in limitation, of the foregoing, Customer acknowledges that INTURN is not a party to any transaction between Customer and any other party entered into in connection with the INTURN Service and cannot be held responsible for any breach by either party of any of the terms of any such transaction.
    • 5.4 Customer Indemnity. Customer shall defend, indemnify and hold harmless INTURN and its officers, directors, employees, shareholders, affiliates and its and their respective representatives from and against any and all third party claims, liabilities, damages and/or costs (including, but not limited to reasonable attorneys’ fees) arising out of or related to: (i) any violation of this Agreement or applicable law by Customer, (ii) any claim that any content or materials provided by Customer is misleading, inaccurate, false or otherwise violates the intellectual property rights, privacy rights or other rights of any third party or applicable law, (iii) any unauthorized use of the INTURN Service or underlying software or (iv) any claim related to any transaction between Customer and a third party or other user of the INTURN Service, including (without limitation) any claims related to any products purchased or sold by the Customer pursuant to the INTURN Service.  In no event Customer will be responsible or liable for(a) INTURN’s continued allegedly infringing activity after being notified thereof or after being provided modifications requests that would have avoided the alleged infringement or (b) INTURN’s provision of the INTURN Service in a manner not strictly in accordance with this Agreement and the documentation provided by Customer to INTURN.
    • 5.5 INTURN Indemnity. INTURN shall indemnify, defend and hold harmless Customer and its officers, directors, employees, shareholders, affiliates and its and their respective representatives from and against any and all third party claims, liabilities, damages and/or costs (including, but not limited to, reasonable attorneys’ fees) arising out of or related to:  (i) any violation of this Agreement or applicable law by INTURN or (ii) any claim that the INTURN Service violates the intellectual property rights, privacy rights or other rights of any third party or any applicable law. Following notice of a claim under clause (ii) regarding infringement of a third party’s intellectual property rights or any facts that may give rise to such a claim, INTURN may, in its reasonable discretion, (a) procure for Customer the right to continue to use the applicable portions of the Service, (b) replace the applicable portions of the INTURN Service or (c) modify the applicable portions of the INTURN Service to make them non-infringing, and shall confirm such alternative with Customer once it is in place.  If INTURN determines that it is not commercially reasonable to perform any of these alternatives, INTURN shall have the option to terminate this Agreement with respect to the allegedly infringing portions of the Service on prior written notice to Customer of at least 90 days.  In no event will INTURN have any obligations under this Section 5.5 or any liability for any claim or action caused by:  (a) Customer’s combination or use of the INTURN Service with non-INTURN software or services, products or data, if such Claim would have been avoided by the non-combined or independent use of the Service, (b) modifications of the INTURN Service by anyone other than INTURN if such Claim would have been avoided by the use of the unmodified INTURN Service, (c) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement or (d) Customer’s use of the INTURN Service in a manner not strictly in accordance with this Agreement and the documentation provided to Customer by INTURN.


Term.  The term of this Agreement (the “Term”) will commence on the Effective Date and will continue until terminated pursuant to Section 6.2 below.  Each Order shall define an active order term (the “Order Term”). The Initial Term of the Agreement is that which is set forth in the Ordering Form (together with any period of extension under Section 6.3 hereof, the “Term”). The Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to its terms.

  • 6.1 Termination.
    • 6.1.1 In the event that either party is in material breach of this Agreement, and the breaching party does not cure such breach within thirty (30) days following notice of such breach, then the non-breaching party may immediately terminate this Agreement and/or any Order Form by sending written notice to the breaching party.
    • 6.1.2 This Agreement may be terminated by either party upon written notice to the other at any time at which there is not then an Order Form in effect.
    • 6.1.3 Either party may termination this Agreement and/or any Order Form in the event that the other party is unable to perform material obligations hereunder for a period of at least sixty consecutive days a result of a Force Majeure Event.
    • 6.1.4 Either party may termination this Agreement and/or any Order Form in the event that bankruptcy or insolvency proceedings are brought by the other party or against the other party and not dismissed within 60 days, or the other party makes an assignment for the benefit of its creditors, or a receiver or administrator is appointed over any of the other party’s assets.
  • 6.2 Effect of Termination. Upon termination of this Agreement, Customer and any Authorized Users must immediately stop using the Service, return or destroy all documentation, and certify such return or destruction in writing.  Upon termination of this Agreement, Sections 2.5, 3 (with respect to fees owed for periods prior to termination), 4, 5.2, 5.3, 5.4, 5.5, 3 and 8 shall survive and remain in effect.  In the event of a termination by Customer pursuant to Section 6.2.1, subscription fees for the remainder of the term will be prorated based on the remaining length of the Agreement.  In all other circumstances, INTURN shall be entitled to the full subscription fee for the subscription period in which the termination occurs.
  • 6.3 Extension. Automatic Extension of the Term unless not applicable per the Order Form. On the date that is 60 days prior to the last day of the Term (the “Extension Date”), the Term will automatically extend for a period equal to the length of the Initial Term or one year, whichever is longer, unless either party, on or before the Extension Date, notifies the other in writing that the Term shall not so extend. In the event that the Term is extended under this paragraph: (1) Licensee shall remain subscribed during such period of extension to the Services to which it was subscribed as of the Extension Date, and (2) the Subscription Fees to be paid to INTURN for such Services during such period of extension shall be equal to the annualized amount of the Subscription Fee applicable to all Services to which Licensee was subscribed as of the Extension Date, plus 3.5% of such fee, plus any applied discount, multiplied by the length of the term in years. Subscription Fees for the period of extension hereunder shall be due upon extension of the Term, and shall be payable as invoiced. INTURN will invoice Subscription Fees for any period of extension in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date.


During the Term of the Agreement, INTURN shall maintain without lapse the following types of insurance, in at least the minimum coverage amounts:

  • Commercial General Liability $5 million per occurrence
  • Errors and Omissions $5 million per claim (professional or technology, as applicable)
  • Network Security and Privacy Liability (Cyber) $5 million per claim
  • Workers Compensation Statutory Coverage
  • Employers’ Liability $2 million each accident/employee/policy limit

INTURN will endeavor to give Customer ninety (90) days’ prior written notice of any modification or termination of the coverage required hereunder. INTURN shall endeavor, on a good-faith effort basis, to include these insurance requirements in its own contracts with all its subcontractors, and to procure that they purchase and maintain insurance of the type and amounts outline above.

INTURN shall maintain Network Security and Privacy Liability. This insurance policy shall include: (a) costs to notify individuals whose Personal Data was lost or compromised; (b) costs to provide credit monitoring and credit restoration services to individuals whose Personal Data was lost or compromised; (c) costs associated with third party claims arising from the Security Incident or loss of Personal Data, including litigation costs and settlement costs; and (d) any investigation, enforcement or similar miscellaneous costs.


    • 8.1 Injunctive Relief. The parties agree that any breach of Sections 2.5 or 4 of this Agreement would cause irreparable harm and that financial compensation alone may be an insufficient remedy. In the event of such breach, the non-breaching party shall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent such breach.
    • 8.2 Independent Contractor. In performing under this Agreement, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
    • 8.3 Export. Customer agrees not to export or re-export any software included within the Service, either directly or indirectly, without both parties’ written consent and any required license from the appropriate governmental agency.
    • 8.4 Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networks or the public Internet, power outages, labor disputes or governmental demands or restrictions (each, a “Force Majeure Event”).
    • 8.5 Assignment. Either party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets related hereto.  Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent. In addition, Customer may assign or transfer contractual rights or obligations under this Agreement in whole or in part to a Customer Affiliate, but shall remain liable for any breach by any Customer Affiliate of any of the terms of this Agreement. Any assignment in contravention of this subsection shall be void.
    • 8.6 Miscellaneous Provisions.
      • 8.6.1 This Agreement shall be governed by the laws of the State of New York (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). Further, the parties agree that any claim or cause of action under or relating to this Agreement shall be brought in the state or federal courts located in New York, New York, and the parties agree to submit to the exclusive jurisdiction of, and waive any objection to venue in, such courts.  This Agreement, including the exhibits attached hereto, constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written.  Any amendments to this Agreement shall only be valid if in writing and signed by an executive of both parties.  Nothing contained in any purchase order or other document shall in any way modify this Agreement or add any additional terms or conditions.  If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original shall be substituted and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect its original intent.  No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof.  This Agreement may be executed in two counterparts and facsimile signatures shall be binding.
      • 8.6.2 Licensee hereby authorizes INTURN to use Licensee’s name and logo for its marketing efforts unless and until such authorization revoked in writing. Customer also agrees to provide a case study and testimonial if the INTURN service delivers a net positive impact on key performance metrics as determined by Customer in its sole discretion.