Terms and Conditions

This Software License Agreement, along with any order form that references this Agreement (an ​“Purchase Order”)​ and any other exhibits or schedules attached hereto (​“Agreement”​), is agreed to by Keywee, Inc., a Delaware corporation, with an address of 37 West 20th St, Suite 1010 New York, New York (​“Vendor”​), and the customer identified in the signed Purchase Order (​“Licensee”​).

WHEREAS,​ Vendor has developed a web-based solution to manage paid content distribution and content creation; and

WHEREAS​, Vendor is the developer and owner of the Software and related Documentation (collectively, along with any reports generated by the Software, the “Product”), which manages paid content distribution on third party sites such as Facebook and tracks and measures the effectiveness of said campaigns;”); and

WHEREAS,​ Licensee desires to obtain a non-exclusive license to the Product; and

WHEREAS,​ Vendor is prepared to grant, and Licensee has agreed to accept and pay for a non-exclusive license to use the Product, on the terms and conditions in this Agreement.

NOW, WHEREFORE,​ in consideration of the mutual promises and covenants set forth, the Parties agree:

DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this Section apply in this Agreement.

“Authorized Users”​ means those employees, agents and independent contractors of Licensee who are Authorized by Licensee to use the Product.

“Business Day”​ means any day which is not a Saturday, Sunday or public holiday in the United.

Creatives​ means any advertising materials that Vendor creates and provides to Licensee in connection with the Product as defined in this Agreement, other than the Licensee IP, Vendor IP and Third Party IP.

Licensee IP​ means all intellectual property and other information, that are provided by the Licensee to Vendor for the purposes of producing the Creatives.

Third Party IP​ means all IP that are sourced from the third party image and/or video and/or music library banks.

Vendor IP​ means any and all intellectual property and other information, that is (i) owned by Vendor, and (ii) developed or created by Vendor prior to the date of this Agreement or outside the scope of this Agreement, or otherwise generally made available by Vendor to customers of Vendor

“Change of Control”​ means the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.

“Confidential Information”​ means, subject to the exceptions set forth in Section 8.1, confidential and proprietary information of the disclosing party, regardless of whether it is in tangible form, that the disclosing party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party, provided, however, that any technical information (including the Software, Documentation, programs, algorithms, and source code), hardware, financial information, products or services and all non-public, competitively or technically valuable information will be deemed Confidential Information of the disclosing party even if not so marked or identified.

“Documentation”​ means the document provided to Licensee by Vendor online that sets out a description of the Product and the user instructions for the Software.

“Effective Date”​ means the date specified in the signed Purchase Order. “License Fees”​ means the license fees as specified in the signed Purchase

Order.

“Normal Business Hours”​ means 9.00 a.m. to 17.00 p.m. East Coast time, each Business Day.

“Software”​ means the software specified in the signed Purchase Order.

“Term”​ means the term as defined in Section 10.1.

“Virus”​ means anything or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re- arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices;

“Website”​ means the website as specified in the signed Purchase Order. 1.2 The headings inserted are of no legal effect and are for convenience

only and shall not affect the construction of this Agreement.

1.3 References to a “person” include any individual, or legal entity, in each case whether or not having separate legal personality.

1.4 General words shall not be given a restrictive meaning because they are followed by words which are particular examples of the acts, matters or things covered by the general words and the word ‘including’ shall be construed without limitation.

2. LICENSE – AUTHORIZED USERS

2.1 Subject to the terms and conditions of this Agreement, and in accordance with any Purchase Order attached hereto, which is incorporated by reference, Vendor will make the Product available to Licensee.

2.2 Vendor grants to Licensee a non-exclusive, non-transferable license to access and use, and permit the Authorized Users to access and use, the Product during the Term solely for Licensee’s internal business operations.

2.3 Licensee shall comply with the advertising policy of any third-party site to which Licensee content is delivered, and Vendor reserves the right, without liability to Licensee, to disable Licensee’s access to any material that breaches this Section 2.3 without liability to the Vendor

2.4 Licensee shall not:

2.4.1 except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, translate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Product in any form or media or by any means; or

2.4.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human- perceivable form all or any part of the Product; or

2.4.3 access all or any part of the Product to build a product or service which competes with the Product; or

2.4.4 use the Product to provide services to third parties, unless expressly permitted by Vendor; or

2.4.5 subject to Section 12.6, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Support Services and/or Documentation available to any third party except the Authorized Users; or attempt to obtain, or assist third parties in obtaining, access to the SupportServices and/or Documentation, other than as provided under this Section.

2.4.6 take any actions which (i) would disable the Product or impair in any way its operation based on the elapsing of a period of time, the exceeding of an authorized number of copies, or the advancement to a particular date or other numeral (referred to as “time bombs”, “time locks”, or “drop dead” devices); or (ii) would prevent Vendor to access the Product for its operations.

2.5 Licensee shall use all reasonable efforts to prevent any unauthorized access to, or use of, the Product and, if any such unauthorized access occurs or use, promptly notify Vendor.

2.6 Licensee agrees and acknowledges that Vendor and/or its licensors own all intellectual property rights in the Product. Except as expressly stated herein, Vendor reserves all rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade-marks (whether registered or unregistered), or any other rights or licenses regarding the Product. The rights provided under this Section 2 are granted to Licensee only, and shall not be granted to any affiliate, subsidiary or holding company of Licensee, unless expressly permitted by Vendor.

2.7 Licensee may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Vendor with respect to the Product. Vendor shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Licensee hereby grants Vendor a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

2.8 Subject to the terms of this Agreement, Licensee grants to Vendor a limited, non-exclusive, non-transferable license to use Licensee trademarks, service marks, logos and any other indicia of brand ownership (“Marks”) solely in connection with providing the services hereunder and publicizing the relationship between the Parties and in accordance with this Section. Vendor agrees that any use of Licensee’s Marks: (i) will comply with any of Licensee’s identity standards that Licensee reasonably provides to Vendor; and (ii) will inure to the benefit of Licensee. The Marks are proprietary and nothing in this Agreement constitutes the grant of a general license for their use. Neither party acquires any right, title or interest in the other party’s Marks or the goodwill associated therewith.

3. INTELLECTUAL PROPERTY.

3.1 Rights in Licensee IP. Licensee IP and all rights therein shall be owned exclusively by Licensee, except for the limited rights to the Licensee IP described herein. Licensee hereby grants to Vendor a limited, nonexclusive, non-sublicenseable right and license to copy, create derivative works of, modify and otherwise use any Licensee IP provided to Vendor hereunder, in connection with providing the Product and the Creatives. Any and all derivative works of Licensee IP created by Vendor shall be owned by Licensee. Vendor hereby assigns and transfers to Licensee all rights, title and interest in and to such derivative works.

3.2 Rights in the Vendor IP. The Vendor IP and all rights therein shall be owned by Vendor, except for the license to the Vendor IP described herein. To the extent any Vendor IP is incorporated by Vendor into any Creatives, Vendor hereby grants Licensee a perpetual, irrevocable, paid-up, royalty-free, nonexclusive, worldwide license to copy, distribute, transmit, display, perform, and create derivative works of the Vendor IP, solely as incorporated into such Creatives.

3.3 Rights in the Creatives. The Creatives are considered “works made for hire” as such term is used under U.S. copyright law, or in accordance with any similar arrangements under any other applicable law. Vendor hereby assigns and transfers, and will assign and transfer, to Licensee all ownership and interest in and to the Creatives, which, for the avoidance of doubt, expressly exclude any Vendor IP and Third Party IP.

4. THIRD PARTY PROVIDERS

4.1 Licensee acknowledges that the Product will enable or assist it to access the website content of, correspond with, manage its advertising, and purchase services from third parties via third-party websites and that it does so solely at its own risk. Vendor makes no representation or commitment and shall have no liability or obligation in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by Licensee, with any such third party. Any contract entered into and any transaction completed via any third- party website is between Licensee and the relevant third party, and not Vendor. Vendor recommends that Licensee refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third- party website. Vendor does not endorse or approve any third-party website nor the content of any of the third-party website.

5. VENDOR OBLIGATIONS

5.1 If the Software does not conform to the Documentation, Vendor will, at its expense, use reasonable commercial efforts to correct any such non-conformance promptly, or provide Licensee with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Licensee’s sole and exclusive remedy for any breach of the undertaking set out in Section 7.1. This correction or substitution shall not apply to the extent of any non-conformance is caused by the Product contrary to Vendor’s instructions, or modification or alteration of the Product by any party other than Vendor or Vendor’s duly Authorized contractors or agents. Notwithstanding the foregoing, Vendor:

5.1.1 does not warrant that Licensee’s use of the Product will be uninterrupted or error-free; nor that the Product and/or any information obtained by Licensee through the use of the Product will meet Licensee’s requirements; and

5.1.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from transferring data over communications networks and facilities, including the internet, and Licensee acknowledges that the Product may be subject to limitations, delays and other problems inherent in using such communications facilities.

5.2 This Agreement shall not prevent Vendor from contracting with third parties, or from independently developing, using, selling or licensing documentation or services which are similar to those provided under this Agreement.

5.3 Vendor warrants it has and will maintain all necessary licenses, consents, and permissions for the performance of its obligations under this Agreement

5.4 EXCEPT AS EXPRESSLY SET FORTH HEREIN, VENDOR PROVIDES THE PRODUCT ON AN “AS-IS” BASIS AND DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES THAT VENDOR DOES NOT WARRANT THAT THE PRODUCT WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES. LICENSEE ACKNOWLEDGES THAT VENDOR IS NOT LIABLE FOR ANY ACTIONS TAKEN BY THIRD PARTIES RELATED TO OR ARISING FROM COMPANY’S USE OF THE PRODUCT.

6. LICENSEE’S OBLIGATIONS

6.1 Licensee shall:

6.1.1 provide Vendor with all necessary co-operation access to information in relation to this Agreement as required by Vendor, to provide the Product,

6.1.2 comply with all laws and regulations regarding its activities under this Agreement, including, without limitation, the General Data Protection Regulation (EU) 2016/679 (the “GDPR”);

6.1.3 carry out all other Licensee responsibilities set out in this Agreement in a timely and efficient manner. If any delays in licensee’s provision of such assistance occurs as agreed by the parties, Vendor may adjust any agreed timetable or delivery schedule as reasonably necessary;

6.1.4 obtain and shall maintain all necessary licenses, consents, and permissions for Vendor, its contractors and agents to perform their obligations under this Agreement;

6.1.5 ensure that its network and systems comply with the specifications provided by Vendor from time to time; and

6.1.6 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Vendor’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Licensee’s network connections or telecommunications links or caused by the internet.

6.2 Licensee hereby authorizes Vendor to (i) access Licensee’s advertiser account and page with Facebook, and (ii) agree to Facebook’s advertiser terms on Licensee’s behalf.

7. FEES AND PAYMENT

7.1 All amounts and fees due under this Agreement:

7.1.1 shall be payable in US Dollars;

7.1.2 are non-cancellable and non- refundable,

7.1.3 are exclusive of all taxes, which shall be added to Vendor’s invoice(s) at the appropriate rate.

7.2 Licensee agrees to make all payments without set-off or counterclaim and free and clear of any withholding or deduction (save as required by law) for any present or future taxes, levies, imposts, duties or other charges. If Licensee is obliged by law to make any such withholding or deduction, Licensee will pay to Vendor in the same manner and additional amounts to ensure that Vendor receives a net amount equal to the full amount which Vendor would have received if no such deduction or withholding had been required.

7.3 Licensee shall on the Effective Date provide to Vendor valid, up-to-date and complete approved Purchase Order information acceptable to Vendor and any other relevant valid, up-to-date and complete contact and billing details.

7.4 Vendor shall provide a report to the Licensee detailing the License. All reported numbers for purposes of billing, payments, the determination of License Fees and general delivery reporting are based on counts within the Software

7.5 Vendor shall invoice Licensee for the Licenses Fees incurred during the previous month as set out in the billing report provided to Licensee under Section 7.3 and, unless otherwise agreed in the signed Purchase Order. The invoice will be payable by Licensee within 30 days from receipt of invoice.

7.6 All payments shall be made by Licensee by bank transfer to the account of Vendor at a bank to be nominated in writing by Vendor.

7.7 If Vendor has not received payment within 15 days after the due date, and without prejudice to any other rights and remedies of Vendor;

7.7.1 Vendor may, without liability to Licensee, disable Licensee’s password, account and access to all or part of the Product and Vendor shall be under no obligation to provide any or all of the Product while the invoice(s) concerned remain unpaid; and

7.7.2 Interest shall accrue on due and unpaid amounts at a monthly rate of 1%, commencing on the due date and continuing until fully paid, whether before or after judgment.

8. CONFIDENTIALITY

8.1 Each party may be given access to Confidential Information from the other party to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:

8.1.1 is or becomes publicly known other than through any act or omission of the receiving party;

8.1.2 was in the other party’s lawful possession before the disclosure;

8.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

8.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence

8.2 Confidential Information of the disclosing party may be disclosed by the receiving party to the extent required by law, by any court of competent jurisdiction or by any regulatory or administrative body, provided that the receiving party delivers reasonable notice to the disclosing party and use commercially reasonable efforts to cooperate with disclosing party’s attempt to obtain a protective order.

8.3 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than implementing this Agreement.

8.4 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of this Agreement.

8.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

8.6 Licensee acknowledges that details of and the results of any performance tests of the Product constitute Vendor’s Confidential Information.

8.7 This Section shall survive termination of this Agreement.

9. INDEMNITY; LIMITATION OF LIABILITY

9.1 Licensee shall defend, indemnify and hold harmless Vendor, its officers, directors and employees against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) relating to (a) any content displayed by Licensee on the Website(s) or (b) violations by Licensee of applicable law); provided that:

9.1.1 Licensee is given prompt notice of any such claim;

9.1.2 Vendor provides reasonable co- operation to Licensee in the defense and settlement of such claim, at Licensee’s expense; and

9.1.3 Licensee is given sole authority to defend or settle the claim, provided that Licensee will not settle the claim without the prior written consent of Vendor, which will not be unreasonable withheld, conditioned or delayed;

9.2 Vendor shall defend, indemnify and hold harmless Licensee, its officers, directors and employees against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) relating to an allegation that Licensee’s authorized use of the Product infringes any intellectual property right of a third party; provided that;

9.2.1 Vendor is given prompt notice of any such claim;

9.2.2 Licensee provides reasonable co- operation to Vendor in the defense and settlement of such claim, at Vendor’s expense; and

9.2.3 Vendor is given sole authority to defend or settle the claim, provided that Vendor will not settle the claim without the prior written consent of Licensee, which will not be unreasonable withheld, conditioned or delayed.

9.3 In the defense or settlement of any claim, Vendor may procure the right for Licensee to continue using the Product, replace or modify the Product so they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on reasonable notice to Licensee with no additional liability or obligation to pay liquidated damages or other additional costs to Licensee.

9.4 In no event shall Vendor, its employees, agents and sub-contractors be liable to Licensee if the alleged infringement is based on:

9.4.1 a modification of the Product by anyone other than Vendor without Vendor’s express consent; or

9.4.2 Licensee’s use of the Product not in accordance with this Agreement; or

9.4.3 the combination, operation, or use of the Product with other applications, portions of applications, content, product(s), data or services where the Product would not by itself be infringing; or

9.4.4 Licensee’s use of the Product after notice of the alleged or actual infringement from Vendor or any appropriate authority.

9.5 The foregoing states Licensee’s sole and exclusive rights and remedies, and Vendor’s (including Vendor’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

9.6 This Section sets out the entire financial liability of Vendor (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Licensee regarding:

9.6.1 any breach of this Agreement;

9.6.2 any use made by Licensee of the Product or any part of them; and

9.6.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

9.7 EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THIS AGREEMENT, LICENSEE ASSUMES SOLE RESPONSIBILITY FOR ALL RESULTS, INFORMATION AND DATA OBTAINED FROM THE PRODUCT BY LICENSEE OR ANY ON ITS BEHALF, AND FOR ALL CONCLUSIONS DRAWN, AND ACTIONS AND DECISIONS TAKEN, AND FOR ALL STRATEGIES AND ADVERTISING CAMPAIGNS CONDUCTED FROM SUCH USE OF THE PRODUCT BY LICENSEE. VENDOR SHALL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO VENDOR BY LICENSEE IN CONNECTION WITH THE PRODUCT, OR ANY ACTIONS TAKEN BY VENDOR AT LICENSEE’S DIRECTION.

9.8 EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE AND EXCEPT FOR LIABILITY ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 8 ABOVE OR A BREACH BY LICENSEE OF SECTION 2.2 OR 2.4, NEITHER PARTY SHALL BE LIABLE WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, DAMAGE TO OTHER SOFTWARE, COMPUTER FAILURE, OR MALFUNCTION, OR DOWNTIME, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THIS AGREEMENT.

9.9 EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE AND EXCEPT FOR LIABILITY ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 8 ABOVE OR A BREACH BY LICENSEE OF SECTION 2.2 OR 2.4, EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY SHALL BE LIMITED TO THE TOTAL LICENSE FEES PAID BY LICENSEE TO VENDOR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

10. TERM AND TERMINATION

10.1 This Agreement shall commence on the Effective Date and shall continue for the period of time set forth on the Purchase Order (the “Term”), unless terminated by either Party in accordance with this Agreement.

10.2 Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate this Agreement without liability to the other:

10.2.1 the other Party commits a material breach of any of this Agreement; or

10.2.2 an order is made or a resolution is passed for the winding up of the other Party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other Party, or a receiver is appointed of any of the other Party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other Party or the other Party arranges or composition with its creditors, or applies to a court of competent jurisdiction for protecting its creditors or the other party ceases, or threatens to cease, to trade or the other Party takes or suffers any similar or analogous action in any jurisdiction; or

10.2.3 for any reason, upon 72 hours’ prior written notice to the other Party. 10.3 On termination of this Agreement for any reason:

10.3.1 All unpaid amounts due to Vendor under any Purchase Orders or IOs shall immediately become due and payable, except in the event of Licensee’s termination under Section 10.2.1

10.3.2 all licenses granted under this Agreement shall immediately terminate;

10.3.3 Sections 1, 2.4, 2.5, 2.6, 2.7, 4, 8, 9, 10, 11 and 12 of this agreement shall not be affected or prejudiced.

11. FORCE MAJEURE

Vendor shall have no liability to Licensee under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, strikes, lock-outs or other industrial disputes (whether involving the workforce of Vendor or any other Party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of equipment, plant or machinery, Viruses, fire, flood, storm or default of Vendors or sub- contractors, over intensive use of resources; provided that Licensee is notified of such an event and its expected duration.

12. MISCELLANEOUS

12.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.

12.2 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

12.3 Relationship of the Parties. Each of the Parties is an independent contractor and not an agent, partner, joint venturer, franchisee, affiliate or employee of the other. No fiduciary or franchise relationship exists between the Parties. Neither of the Parties (i) shall be liable for any debts, accounts, obligations or other liabilities of the other Party, its agents or employees; (ii) shall have any authority to obligate or bind the other in any manner; or (iii) has any proprietary interest in the other or any interest in the business of the other, except to the extent in this Agreement.

12.4 This Agreement, and any documents referred to in it, including any Purchase Orders, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. No term of any Purchase Order will be deemed to amend the terms of this Agreement unless an Purchase Order references a specific provision in this Agreement. Any Purchase Order amending a term of this Agreement shall amend such term only with respect to the Product provided pursuant to such Purchase Order.

12.5 Each of the Parties agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject of this Agreement, other than as set out in this Agreement.

12.6 Licensee shall not, without the prior written consent of Vendor, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Vendor may assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement without prior written consent of Licensee.

12.7 Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorize either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, making any representation or warranty, the assumption of any obligation or liability and exercising any right or power).

12.8 This Agreement confers no rights on any person or party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns).

12.9 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first- class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this Agreement. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission as shown by the timed printout obtained by the sender).

12.10 Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced under the laws of the State of New York, and for all purposes shall be construed under the laws of the State of New York, without giving effect to its choice of law provisions.

12.11 Arbitration. Any disputes relating to this Agreement or its breach will – if it cannot be resolved informally by the Parties – be resolved solely and exclusively by arbitration in New York City, New York under the then-current rules of the American Arbitration Association in accordance with its Commercial Arbitration Rues (including the Optional Rules for Emergency Measures of Protection), and judgment upon the award entered by the arbitrator may be entered in any Court having jurisdiction thereof. The arbitration proceedings shall be conducted before one (1) neutral arbitrator selected by the American Arbitration Association. Costs of arbitration, including attorney’s fees in arbitration, as determined by the arbitrator, with attorneys’ fees incurred by prevailing party in Court enforcement of the arbitration award after the arbitrator renders it, must be paid to the prevailing party by the party designated by the Arbitrator or Court. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under these Terms of Use, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). Should one party either dismiss or abandon their claim or counterclaim before the hearing, the other party will be deemed the “prevailing party” under this Agreement. Should both parties receive judgment or award on their respective claims, the party in whose favor the larger judgment or award is rendered will be deemed the “prevailing party” under this Agreement.

Last Revised: July 18, 2018