General Terms and Conditions

GENERAL TERMS AND CONDITIONS

Last Updated July 29, 2022

These General Terms and Conditions (together with the Phantom Terms and Conditions and Development Terms and Conditions, as described below, the “Agreement”) is made by and between The Vanity Project LLC, a Nevada limited liability company, with its principal place of business at 875 Avenue of the Americas, Suite 1700, New York, NY 10001 (“TVP”) and the entity that has accepted the terms hereof (”you” or the “Client,” and collectively with TVP, the “Parties,” and each a “Party”), in conjunction with the Scope of Work Agreement (“SOW”) entered into by and between the Parties, which is now referenced and incorporated herein, as of the date of the execution of said SOW (the “Effective Date”).

The Client acknowledges that it has read, understood and agrees to be bound by these terms and to comply with all applicable laws and regulations. If you do not agree to these terms, please do not use the Platform.  You hereby acknowledge and agree that any use or continued use, of the Platform or services shall constitute your continued acceptance of the terms hereof.  The Platform may contain other proprietary notices and copyright information, the terms of which must be observed and followed. Please be aware that TVP may, in its sole discretion and without notice, revise these terms at any time by updating this posting.  It shall be your sole responsibility to regularly check these Terms and Conditions to remain abreast of any changes or updates made thereto.

RECITALS

This Agreement sets forth the understanding and agreement of the Parties with respect to all services offered by TVP including, without limitation, graphic design, production/printing, e-commerce development and management, and fulfillment/distribution services associated with any products (collectively, the “Products”), as set forth below.

TVP and Client hereby agree as follows:

• PROJECT UNDERTAKING

I.1  Proposals.  The Parties understand and agree that TVP will be engaged by the Client from time to time to assist with design development of Products; design and development of the Client’s e-commerce sites; warehousing, fulfillment, and logistics for the Client’s products; in an advisory capacity with regards to the Client’s e-commerce business; and to provide other services as mutually agreed upon by the Parties. Prior to any work commencing, the details of each engagement will be either (i) provided in a written proposal or (ii) uploaded to TVP’s backend client dashboard (“Phantom”) as a proposal or SOW which may be accepted online and digitally signed by the Client (each, a “Proposal”), provided that to the extent that any provision of this Agreement is in conflict with any provision of a relevant Proposal, the provisions of this Agreement shall govern, except to the extent that the applicable Proposal expressly and specifically states the intent to supersede this Agreement in relation to such specific provision. Each Proposal will be deemed accepted at such time as it is signed (including digitally, if applicable) by the Client.

I.2  Purchases.  Client may be required to keep a credit card or other payment method on file with TVP (the “Payment Method”). Client hereby authorizes TVP to charge its Payment Method for any fees incurred. In addition to services rendered through Proposals, Client may purchase additional services, including blocks of service time, directly through Phantom or through any written agreement. TVP will invoice Client no less than once per month for fulfillment. TVP may elect, at its sole discretion, to invoice Client more frequently for fulfillment. TVP typically invoices by the 10th day of each month for the prior month’s fulfillment. Client shall have five (5) business days after receipt to dispute any invoice received from TVP. Upon payment, or after the passage of five (5) business days from the receipt of an invoice, that invoice shall be considered accepted by Client. Additionally, TVP reserves the right to update the pricing terms of this agreement by providing a thirty (30) day advance notice, either written or by electronic transmission. There shall be a monthly-minimum charge in the amount of $500.00 USD, for Services to be performed by Company on behalf of Client, and such minimum charges shall be exclusive of any Additional Services selected, and inclusive of any storage costs.

I.3  Project Timelines.  TVP shall meet the milestones and complete designated projects within the timetables set forth in Proposals. In the event that TVP becomes aware of any circumstance that reasonably may be anticipated to lead to any material deviation from the development timetable as set forth in the applicable Proposal, TVP shall notify Client of such circumstances as quickly as reasonably possible.

I.4  Project Completion.  TVP shall devote sufficient time and effort and shall allocate sufficient personnel and resources to the designated project as may be required for successful and timely completion in accordance with the applicable Proposal, and shall conduct and conclude project activities in a professional manner.

I.5  Other Agreements.  In the course of providing any of its Products or other services, TVP may require that the Client agree to additional terms and conditions of use. Without limiting the generality of the previous sentence, (a) the Client expressly agrees to the Phantom Terms and Conditions located here: http://tvp.nyc/terms-and-conditions-phantom and, (b) if the Client requests or receives any Products characterized as ecommerce development or management services, expressly, the Client expressly agrees to the Development Terms and Conditions located here:  http://tvp.nyc/terms-and-conditions-development.  In all cases of the Client receiving any services from TVP or using TVP’s website or Platform, the Client expressly agrees to be bound by the TVP Privacy Policy located here:   http://tvp.nyc/privacy-policy.

• DESIGN & CREATIVE CONSULTING SERVICES

This section applies if you utilize any of TVP’s design or creative consulting services

II.1.  Design Development. The Parties understand and agree that TVP will, when engaged by the Client, be principally responsible for the development and presentation to the Client of designs for the Client’s products, which may include using existing logos and imagery provided by the Client or development of original concepts created by TVP for the Client. The Client will review the designs, and the Client may approve, disapprove or modify in its sole discretion, in accordance with the terms and conditions set forth herein.

II.2.  Design and Creative Consulting Fee.  The Parties will agree to a rate, either on an hourly basis or a project basis, as compensation for the designs and creative consulting services rendered under this Section II (the “Consulting Fee”). If no other fee is explicitly agreed upon in a relevant Proposal, or in the event that the Client desires a “rush service” from TVP (which does not allow for the development of a full Proposal), the hourly rate will default to one hundred and fifty dollars ($150.00) per hour.

II.3.  Intellectual Property. All right, title and interest in and to the samples, sketches, design, artwork, logos and other creative materials furnished to Client by TVP (the “Design Concepts”) shall be the sole property of TVP except to the extent the Design Concepts include trademarks, copyrights, or other intellectual property or proprietary materials owned by Client or any third party. All right, title and interest in and to the Design Concepts shall be assigned to and shall become the sole property of Client upon Client’s payment of the Design Fee to TVP. TVP agrees to provide Client with reasonable assistance that is necessary or desirable to transfer and perfect its ownership interest in such Design Concepts, including trademark, patent or copyright applications in such Design Concepts, and executing all documents of assignment and other documents (and shall cause its personnel and others to provide such assistance and information and execute such documents) consistent with the rights granted herein or otherwise provided by law.

• PRODUCTION

This section applies if you utilize any of TVP’s production services

III.1.  Production Pricing.  TVP shall charge no more than the agreed production price as agreed upon by both Parties through a Proposal, estimate, and/or other form of official written communication prior to the commencement of such work. Client understands and agrees that printing rates, fabric prices, and other material prices are subject to change due to market force, provided that TVP will notify Client of any price changes prior to instituting a change via an updated Proposal, estimate, invoice, or other official form of communication to be approved by the Client. If Client desires to stop offering a Product due to a price change, TVP will remove such Product from Client’s offerings. Client understands and agrees that discrepancies in pricing may arise when the Parties are discussing unofficial estimates before production begins. In the event of any discrepancies prior to the commencement of such work, TVP will confirm pricing with an estimate, invoice or updated Proposal.

III.2.  On-Demand Production. For on-demand Products, the production price per Product shall be set forth as agreed upon by both Parties through a Proposal, estimate, and/or other form of official written communication prior to the commencement of such work. On-demand production prices may include a picking and packing fee. On-demand production is completed and fulfilled by printing partners that TVP will curate and recommend to the Client for approval, TVP does not actually print or fulfill on-demand products. Pre-printed inventory will incur a separate fulfillment fee if the Client has engaged TVP for distribution and fulfillment services, which will be billed after shipping the item in accordance with a Proposal, estimate, and/or other form of official written communication prior to the commencement of such work.

III.3.  Choice of Products. TVP offers a number of product styles that are available for Client to select for production. For each such style, TVP will provide Client with costs for each item, and Client, in its sole discretion, may determine the retail price to the customer.

III.4.  Unavailability of Products.  In the event that an order will be delayed due to a Product’s being back ordered, defective, or discontinued, TVP will notify Client. At that time, Client will have the option to:

• 1. Hold the order until all item(s) are available for shipping.
• 2. Cancel the item(s) causing the delay, and request shipment of the remaining item(s)
• 3. Indicate, by written communication including e-mail, the desired change in style, color, or size, based on availability.
• 4. Cancel the entire order.

III.5 Substitution of Products. For many Products there may be comparable brands/styles that can be substituted for the ordered Product, however, TVP will never substitute products unless previously approved by Client, or unless the Client provides TVP with such discretion in the Proposal, email, invoice, estimate or other form of written communication prior to the commencement of such work. In the event that TVP must substitute a product to achieve the Client’s desired completion date and Client or its representatives are unavailable or unresponsive to TVP’s communication, TVP may choose to substitute a comparable brand/style in its own discretion.

• WAREHOUSING, PRODUCT FULFILLMENT AND DISTRIBUTION

This section applies if you use any of TVP’s warehousing, product fulfillment, or distribution services

IV.1  Shipping Costs.  Client must select a shipping option/method for its Products as agreed upon by both Parties through a Proposal, estimate, and/or other form of official written communication prior to the commencement of such work. In the event of the need for any changes to the shipping program associated with Client’s fulfillment account, TVP will notify Client at least thirty (30) days in advance. Client may request to change the shipping program associated with its fulfillment account at any time; provided that such change will not be implemented for up to thirty (30) days. For either pre-printed or on-demand Products, shipping costs are additional and billed directly to the customer or to the Client, depending on Client’s preference.

IV.2  Packaging of Products.  TVP agrees to professionally package all items prior to shipping, including but not limited to, integrating Client’s branding into the shipping label, if Client elects this option. TVP shall be responsible to maintain necessary packaging supplies on hand to allow for orders to be fulfilled in a timely manner. Client shall be responsible to provide and/or pay for any Client-specific packaging materials (i.e., marketing materials, return labels, mailers, boxes, etc.). TVP will use its professional expertise to recommend packaging for the Client’s items, and the Client will be responsible for approving how the items are packaged and shipped as well as any corresponding pricing changes that may result from this packaging.

IV.3  Handling Fees.  Client will be billed a standard handling fee covering the price of packaging and standard branding activities as agreed upon by both Parties through a Proposal, estimate, and/or other form of official written communication prior to the commencement of such work, however, TVP may require an additional fee for any packaging requirements that fall outside the normal established process, which will be discussed and agreed by the Parties. Client also understands that in addition to fulfillment, invoices will include applicable charges for storage, receiving, postage, packaging (if procured by TVP), and customer service (if provided by TVP). Invoices may also include applicable hourly fees if Client requests services from TVP that fall under the hourly rates or if any labor provided by TVP falls outside the scope of any specific line items and if Client and/or Client’s vendors do not follow TVP’s Warehouse Protocol.

IV.4  Liability for Third-Party Products. For any Products that are provided to TVP from the Client, or its agents or contractors (the “Third-Party Products”), it is hereby agreed and understood that Client will bear all risk of loss or damage, and accordingly Client has the option to obtain and maintain property insurance for the full or partial replacement value on any such Third-Party Products.

IV.5  Shipping Third-Party Products to TVP’s Warehouse. TVP has specific protocol that the Client and its agents or contractors must follow to send Third-Party Products to TVP’s warehouse or a third-party warehouse contracted by TVP (the “Warehouse Partner”). Client hereby understands and agrees that non-compliance with these protocols may delay TVP’s ability to receive the products and integrate them into the Client’s inventory, as well as delay TVP’s ability to count an inspect such Product. TVP reserves the right to bill for any time associated with receiving such items into inventory at 1.5x the normal hourly rate agreed upon by the Parties in an applicable Proposal. If no hourly rate has been specified in the Proposal, the default hourly rate will be one hundred and fifty dollars ($150.00) per hour.

IV.6  Shipping Liability & Insurance. Once TVP has shipped an order to the specifications provided by Client, TVP no longer retains any liability for the delivery of the order to the customer. An order is considered to be shipped at the point the carrier picks up the shipment from a TVP facility. If Client desires shipping insurance, Client must mark the individual order as such in the original submitted order from the customer. Client will be billed for additional insurance costs, and TVP will assume liability for delivery. FOR ANY UNINSURED ORDER, BUYER IS RESPONSIBLE FOR PAYING FOR ALL REORDERING, REPRINTING, AND SHIPPING /RESHIPPING EXPENSES, REGARDLESS OF CUSTOMER DELIVERY STATUS OR SHIPMENT DAMAGE, PROVIDED COURIER SHIPMENT TRACKING INDICATES SHIPMENT WAS SENT BY DISTRIBUTOR AND PROCESSED BY COURIER. The Parties understand that shipment tracking is not a perfect process and that some packages that do qualify as “shipped” under this Agreement may not always show the correct shipment status.

IV.7  International Shipping. Client shall be solely responsible for performing any and all due diligence pertaining to any potential requisite duties/taxes and Client shall be solely responsible for informing/notifying all customers of any such duties/taxes which may come due and owing as a result of any orders placed. TVP shall bill back any and all fees, costs, or expenses associated with abandoned and returned packages, as well as any and all fees, costs, or expenses associated with duties/taxes levied to TVP’s applicable shipping accounts.

IV.8 Returns & Refunds. TVP shall accept responsibility for any unwashed, unworn and/or unused items deemed to be defective, and shall rectify, replace or refund the customer. If Client believes an item to be defective, Client shall supply TVP with proof of defect by returning the Product in question to TVP for inspection. If TVP agrees there is a material defect, TVP is responsible for all material and/or printed image defects, and for order accuracy (item not being the ordered style/color/size/image). Items are produced according to industry standards, and if requested, TVP will notify Client of the production method used, and the characteristics common to each method. TVP is not liable for the result of any characteristic of a particular method that Client may misconstrue as a defect. If an item is deemed to be defective for any of the reasons mentioned above TVP agrees to replace and ship a new item to customer at no charge to Client or customer. If a customer refuses replacement, Client will receive credit for the cost of the item. If TVP determines that the item in question is not defective, TVP will contact Client to determine course of action. In some cases this may require the returned item to be shipped to Client, at Client’s expense, for inspection.

IV.9 Representations and Warranties. TVP and Client each represent and warrant that it shall comply, and shall use commercially-reasonable efforts to require their respective subcontractors and any person under their control to comply, with all laws and regulations applicable to the Products or otherwise relating to each Party’s performance hereunder, including, without limitation, all applicable state, national and international laws, rules and regulations relating to ethical and responsible standards of behavior, including, without limitation, those dealing with human rights (including, without limitation, human trafficking and slavery and conflict mineral sourcing), environmental protection, sustainable development and bribery and corruption, provided that, for clarity, the foregoing shall not limit TVP’s responsibilities under Sections II.3, II.4 of this Agreement. Client will secure and maintain in good standing all permits, licenses, and other permissions in order to sell its Products, as required by law, rule, regulation, or contract. Client further represents and warrants that the Products are not considered hazardous materials and/or dangerous goods at the time the Products are tendered to TVP or its Warehouse Partners. If Client breaches this Section IV.8 or otherwise tenders any unfit or dangerous Products to TVP or its Warehouse Partners, TVP or the Warehouse Partners, as applicable, shall be entitled to exercise all available remedies and may, without liability, destroy or remove the Products from the warehouse with or without notice. Client shall be liable for all expenses, costs, losses, damages, fines, penalties or other expenses of any sort incurred by TVP in connection with the removal, or destruction, or handling of the Products pursuant to a breach of this Section IV.8 and shall indemnify TVP and the Warehouse Partners against all amounts, liabilities, claims, or damages arising in connection with any such breach.

IV.10 Logistics Consultation. Upon the request of Client, TVP may provide consulting services with respect to the logistics of distribution of the Products, at an additional fee to be discussed and agreed upon by both Parties through a Proposal. In the event that the Client requests that TVP provide consulting services in connection with logistics and/or distribution of the Client’s products without an explicit Proposal in place, the hourly rate will default to $150 (one hundred and fifty dollars) per hour.

IV.11 Warehouse Protocol. Client acknowledges that it has received and reviewed TVP’s warehouse protocol, located at this link. Client will notify TVP no less than 72 hours before launching their online store, making any major updates to their store or processes, or before adding any new products to their store, so that both parties can ensure everything is in place. TVP will be providing logistics, fulfillment, and warehousing services to Client, including but not limited to, product receiving, inventory storage, pick/pack/wrap, package tracking, postage, and packaging procurement for the Products. Client will be responsible for sending all products not produced by TVP to TVP’s Warehouse in a manner acceptable for fulfillment, as per the Warehouse Protocol document.

IV.12 Inventory Management. Client understands that inventory displayed in these systems is virtual inventory and may not be accurate. Virtual inventory is not a substitute for a physical inventory count. If Client requires an inventory audit or physical count then Client must notify TVP in no less than ten (10) business days advance notice to schedule a count. TVP may require stopping shipments for Client while reconciling Client’s inventory and updating in the relevant e-commerce systems. TVP will charge the Client standard warehouse labor rates for scheduled and unscheduled labor, which shall be based upon TVP’s most current fulfillment rate card, in addition to any agency fees associated with updating inventory in the relevant and applicable eCommerce systems. TVP may update inventory from time-to-time while performing regular inventory spot checks and updates.

IV.13 Slow-Moving Goods. In the event that Client is not actively marketing or selling a product in any of their sales channels and/or 10% or less of inventory on-hand has been sold in a 3-month period, TVP reserves the right to charge treble the storage fees. TVP does not have to notify client of these changes. If Client elects to use a longer-term storage facility for any overstock or slow-moving goods, TVP may connect Client with multiple options, but shall be under no obligation to do so.

IV.14 Backorders, Pre-orders, Order Aging Disclaimer. Client hereby acknowledges, understands, and agrees that there may be certain risks associated with pre-selling or over-selling. Such risks to Client may include, but shall not be limited to: (i) the risk that such orders may not be fulfilled in a timely fashion, if such orders are fulfilled at all, and/or (ii) that the Client may incur additional expenses, fees, or costs as a result of any issues which may arise from the Client electing to engage in the pre-selling or over-selling of products. Client hereby acknowledges and agrees that any orders aged over 30 days will lead to inconsistent performance across technology systems. Client hereby acknowledges and agrees that if the Client elects to engage the selling behaviors described above, the Client may be billed at TVP’s standard agency rates ($150/hr) and unscheduled labor rate ($75/hr) in order to resolve any issues that arise from pre-selling/overselling.

IV.15 Packaging. If Client has elected to use custom/standard packaging for their products, this Section IV.11 will apply. If buyer has elected to provide their own packaging then Client is responsible for sending packaging to TVP to ensure sufficient quantity is available to fulfill orders. TVP provides standard packaging (plain poly-mailers and limited sizes of corrugated boxes). If Client has not supplied TVP with enough packaging or packaging capable of handling Client‘s orders, as determined by TVP’s warehouse staff, then TVP may elect to ship in substitute packaging. Pursuant to sections 2.1 and Appendix A of the Warehouse Protocol document, any products that arrive at TVP’s warehouse in a state which requires additional preparation may be subject to overboxing charges outlined in the pricing agreement between TVP and Client.

IV.16 Overboxing. The Company takes great care to ensure that the risk of damage is minimized with respect to any products to be shipped on Client’s behalf. Certain products may require overboxing, the process of using a greater amount of packaging materials than usual, when packaging said products in order to ensure they arrive in quality and undamaged condition. In order to maximize the protection of products to be shipped, it shall be Client’s sole responsibility to inform Company as to which products will need to be overboxed. Notwithstanding Client’s obligation to inform the Company as to which products will require overboxing, the Company may at any time, within its sole discretion, elect to overbox a product, in order to ensure a safe delivery to its destination.

Client hereby acknowledges and agrees that additional charges shall apply in any event where overboxing takes place with respect to any of Client’s products, regardless of whether Client advises Company of the need to engage in overboxing, or whether the Company takes it upon itself, using its own discretion, to engage in overboxing with respect to Client’s products. The Company will use reasonable best efforts to reach out to Client prior to engaging in overboxing without Client’s instructions, however, there may be some instances in which this may not be possible, due to timelines or a host of other potentially applicable factors. Any such charges resulting from overboxing of Client’s products shall be reflected on the applicable invoice from Company to Client. Client hereby acknowledges and agrees that it shall be fully responsible for the payment of any and all additional charges incurred as a result of overboxing

IV.17 Turnaround Time and Cutoff. TVP strives to fulfill orders for Client as soon as possible from the time the order is received by TVP. An order is considered “received” when it enters TVP’s fulfillment system, called Phantom Commerce, or other applicable shipping software that may be agreed upon by TVP and Client. An order is considered “shipped” per the terms of the Master Services Agreement executed by TVP and Client. TVP strives to ship all orders by the end of the following business day in which the order is received (for example, if an order is received on Tuesday, TVP will strive to ship the order by the close of business on Wednesday. If an order is received on Sunday, TVP will strive to ship it by the close of business on Tuesday). TVP does not guarantee that all orders will ship in that time frame due to many factors that may be out of TVP’s control. If Client notices a shipment that is not shipped once the applicable time period has passed, Client should contact TVP and TVP will make commercially reasonable efforts to ship the order the same day or the next day, depending on when Client notifies TVP with the applicable order number. TVP may decide to credit Client the fulfillment and postage cost for a particular shipment if TVP decides, at its sole discretion, that the delay was due to an error by TVP. TVP’s daily cutoff for same day order fulfillment is 8am EST. Any order received after 12pm EST is considered to be received the following business day. If Client requests TVP to ship an order the same day it was received or once the daily cutoff time has passed, Client will contact TVP with the applicable order number and desired shipping method. TVP will try to accommodate these requests when possible. Client understands that TVP may charge the hourly labor rate to accommodate rush order requests.

IV.18 Right to Stop Work. Client understands that ongoing fulfillment is composed of several cost elements and overhead and that prompt payment is of paramount importance. TVP shall have the right to stop work and cease ongoing fulfillment for Client if fulfillment invoices are not paid within the terms agreed upon by TVP and Client and Client does not cure non-payment within five (5) business days of being notified of non-payment status by TVP via e-mail. TVP shall not be liable for any claims of lost profit or any claims whatsoever arising from Client’s non-payment.

IV.19 Lien. Client agrees that TVP and its Warehouse Partners shall have a general warehouse lien, contractual and/or statutory in nature, on and against the Products and Third-Party Products and on the proceeds thereof for all charges for storage, handling, transportation (including demurrage and terminal charges), insurance, labor and other charges present or future with respect to the Products and Third-Party Products, advances or loans by TVP in relation to the Products and Third-Party Products and for expenses necessary for preservation of the Products and Third-Party Products or reasonably incurred in their sale pursuant to law, including but not limited to attorney’s fees and auction related fees.

IV.20 Breach. In the event of Client’s breach of this Section IV and any failure to remedy such breach within fifteen (15) days, then, in addition to any other remedies available hereunder, Client shall, within fifteen (15) days after service of the written notice of termination, remove from the warehouse or Warehouse Partner the applicable Products, at its sole expense, and subject to first making payment of all outstanding fees and charges due to TVP. If Client does not comply with the previous sentence, then TVP may, without any liability, remove the Products and sell the Products at public or private sale without advertisement and with or without notification to all persons known to claim an interest in the Products (to the last known place of business of the person to be notified) in any manner provided by law. If TVP is unable to sell the Products, it may dispose of them without liability in any lawful manner.

• E-COMMERCE SERVICES

This section applies if you use any of TVP’s e-commerce services

V.1  Design and Development; Launch.  If the Client chooses to engage TVP in website design and development, TVP will design and develop, in accordance with the agreed upon Proposal, and subject to the Development Terms and Conditions, e-commerce websites for Client (the “Client Stores”). The Client Stores will be generally comparable in quality, ease of use and performance as then-current industry standards for e-commerce websites that sell products and services similar to those then offered through the Client Stores. The Client Stores will contain at a minimum the functionality and features set forth in the agreed upon Proposal, along with such other functionality and features as may be agreed upon by the Parties. Client Stores will be hosted by a third-party e-commerce platform such as Shopify, Squarespace, WordPress, or Magento (the “Platform”), which TVP will suggest and the Client must approve. Client will pay hosting fees directly to the platform, or the Parties may agree that the TVP will pay the platform and invoice Client. The Parties will work together in good faith and use commercially reasonable efforts to cause each Client Store to launch in a timely manner as agreed upon in the Proposal.

V.2  Design Templates; Look and Feel; Approval Rights.  Client Stores will be comprised of a series of templates (the “Design Templates”) developed by TVP and Client, or purchased from a third party and modified by TVP, which will define the format and layout of a page on the Client Stores and establish the placement and size of content type blocks (i.e., text, graphics, promotions, advertising, navigation bar and images). The characteristics of the Client Stores will be consistent with any existing website owned and/or operated by Client, or as otherwise agreed upon by the Parties. Client will provide TVP with any content necessary for the operation of the Client Stores in such format as may be agreed upon by the Parties. Client shall have the right to approve the content, and the overall look and feel, of the Client Stores in advance of its respective launch date, such approval not to be unreasonably withheld or delayed. Subsequent to launch date for each Client Store, no material changes to the Client Store will be made without the approval of the Parties.

V.3  Hosting, Maintenance and Operations of Client Stores.  TVP will maintain and operate the Client Stores in accordance with the agreed upon e-commerce monthly subscription plan. Client Stores will be hosted on a Platform as agreed upon by the Parties and described in Section V.1. The equipment and software used by the Platform to host and operate the Client Store, and the security provided by the Platform with respect to the Client Stores, will be at least generally comparable to then-current prevailing industry standards for e-commerce websites that sell products and services similar to those then offered through the Client Stores. Client Stores will be operated at URLs designated by the Client, and at such other URLs as may be agreed upon by the Parties (together, the “Designated URL’s). Client agrees that TVP will be enabled to provide all domain name server services for the Designated URLs for the Client Stores. If Client notifies TVP that it reasonably believes TVP’s use of any of Client’s intellectual property on the Client Stores is not consistent with the quality or goodwill of such intellectual property, then TVP will use commercially-reasonable efforts to alter such use so that it is consistent with such quality or goodwill.

V.4  Administrative Access.  If Client chooses to have TVP manage Client Stores by electing a monthly subscription plan, Client will authorize TVP and its employees, subcontractors, and agents to be an Administrator (an “Admin”) for the Client Stores. Admin access provides TVP access to all information in the Client Stores, including order information, sales volume, customer information, and other information that is typically available to an Admin on an e-commerce store. TVP will only use this access in a manner agreed upon by the Parties and will have authority to make decisions on a day-to-day basis based on policies agreed upon by the Parties in writing and the course of day-to-day performance. If Client elects to have TVP provide only Production and Fulfillment services, TVP will require to have a shipping software connected to the Client store that will provide the ability to sync customer orders. As such, TVP will still have access to orders that are placed on the Client stores but will not have Admin access.

V.5  Collection of Sales Proceeds; Revenue Share.  Unless otherwise agreed to by and between TVP and the Client in writing (email being sufficient), all proceeds from the sale of merchandise and related services through the Client Stores will be collected and processed by the Client. TVP will invoice Client each month for fulfillment and shipping costs, which the Client will pay in terms agreed upon by the Parties. If and to the extent any amounts are instead collected by TVP, TVP will account to the Client quarterly for such proceeds and remit net proceeds after all deductions for payment processing, sales taxes, and TVP’s fees for services; provided that TVP shall also have the right to retain proceeds until all overdue Client invoices are paid in full.

V.5  Third Party Compatibility.  Under no circumstance will TVP be responsible for functionality, up-time, data loss, or error free operation of any Client Store utilizing third-party software (including, without limitation, plugins, scripts, and applications) installed by, or on behalf of, Client or any other third party (“Third Party Applications”). Client understands and acknowledges that the use of Third Party Applications may make the Client Stores incompatible with some or all of the services offered by TVP. Unless and to the extent otherwise provided for in any Statement of Work executed between TVP and the Client, if TVP elects to fix errors caused by Third Party Applications, TVP will bill Client at its customary hourly rate for any work required to restore, repair, or correct any errors caused by Third Party Applications.

• TERM; TERMINATION

VI.1  Initial Term.  The Agreement shall commence on the Effective Date of the SOW and continue for one (1) year or until terminated pursuant to the terms of Paragraph VI.3, whichever occurs first.

VI.2  Renewal Term. Upon expiration of the Initial Term, the term of this Agreement will automatically renew for additional successive twelve (12) month terms unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless any Renewal Term is earlier terminated pursuant to the terms of this Agreement or applicable Law. If the Initial Term or any Renewal Term is renewed for any Renewal Term(s) pursuant to this Section VI.2, the terms and conditions of this Agreement during each such Renewal Term will be the same as the terms in effect immediately prior to such renewal. In the event either Party provides timely notice of its intent not to renew this Agreement, then, unless earlier terminated in accordance with its terms, this Agreement terminates on the expiration of the Initial Term or then-current Renewal Term, as applicable.

VI.3  Termination. This Agreement shall remain in effect for a period of one (1) year, and shall automatically renew for consecutive one (1) year terms thereafter.  TVP may terminate this Agreement for convenience at any time, for any reason, within its sole discretion, upon the provision of sixty 60) days’ notice in writing (with email being permissible) to the Client, of its intent to do so.  The Client may only terminate this Agreement for convenience within sixty (60) days of the expiration of any given one (1) year term, after the expiration of the initial one (1) year term, upon the provision of sixty (60) days’ notice in writing to TVP (with email being permissible), of Client’s desire to do so.  In addition, either party may terminate this Agreement upon written notice, without payment or compensation of any kind to the other party, if such party, or its agents, employees or representatives breach any of its obligations set forth in this Agreement, if said breach is not cured by the breaching party with fifteen (15) days from the date of the receipt of a written notice to cure said breach, from the non-breaching party.  Further, either party may immediately terminate this Agreement upon written notice, without payment or compensation of any kind to the other party, if such party, or its agents, employees or representatives do any of the following:  (i) makes any material misrepresentations with respect to the other party; (ii) is found to have been convicted of a crime arising from the conduct of a solicitation for a charitable organization or purpose punishable as a misdemeanor or felony; or (iii) otherwise commits any act in a manner that causes or could cause public disparagement of the other party’s good name or goodwill.  Any exceptions thereto, shall be agreed upon in writing by and between the parties hereof, and shall be specified in the SOW, executed by and between TVP and the Client.

VI.4 Fees Upon Termination. Except as otherwise provided in Paragraph VI.2 of this Agreement, upon termination of this Agreement, any fees accrued but not yet paid to TVP shall be payable by Client on or before the effective date of such termination. The fees due to TVP upon termination will be equal to the ongoing monthly fees as agreed upon by the Parties in any current Proposal as well as hourly labor fees necessary to terminate in a professional manner (i.e. hourly labor required to remove Client’s Product and place it into boxes, counting inventory, etc.). The hourly rate for labor upon termination will be equal to one hundred and fifty dollars ($150.00) per hour unless otherwise specified in a Proposal. In the event that the Client desires to terminate this Agreement or any Proposal in less that the specified termination period, TVP will have the sole discretion for approving such termination. In the event that TVP approves an early termination, TVP will be due a termination fee of two thousand five hundred dollars ($2,500.00).

VI.5 Obligations Upon Termination or Expiration. Upon termination or expiration of this Agreement pursuant to Paragraph VI.2, neither party shall thereafter have any obligation or liability to the other, except any obligation or liability: (i) resulting from any default or breach of this Agreement occurring prior to the date of termination; or (ii) settlement of compensation in accordance with Paragraph VI.3. Furthermore, upon termination or expiration of this Agreement, TVP shall immediately: (i) cease use of the Design Concepts; and (ii) return or destroy, at Client’s election, all materials in TVP’s possession or under its control that bear any of the Design Concepts. Any current Proposal, and your access to Phantom, will terminate upon termination of this Agreement.

VI.6 Survival. The Parties agree that relevant provisions of this Agreement will survive termination, including but not limited to the provisions of Section VII regarding non-circumvention and trade secrets.

• NON-CIRCUMVENTION; TRADE SECRETS

VII.1  Contacts with Subcontractors. Client agrees not to contact or initiate contact at any time for any purpose, either directly or indirectly, any (i) Warehouse Partner or (ii) any subcontractor whose identity is only known to Client through TVP. Client further agrees not to undertake any transaction or a series of transactions of any kind with any such Warehouse Partner or subcontractor for a period of one (1) year following termination of this Agreement. Notwithstanding any other remedies available to TVP at law or equity, TVP shall be permitted to obtain injunctive relief, without the necessity of posting a bond, in the event of any breach of this Section VII.1.

VII.2  Trade Secrets. Each party recognizes and acknowledges that much of the business information communicated between the Parties through the course of business conducted in furtherance of this Agreement may be considered a trade secret of such party. Each party thus agrees to preserve the secrecy of said information, including but not limited to, the identities of any and all designers, vendors, consultants, and other subcontractors engaged in a commercial relationship with the other party. Additionally, each party recognizes and acknowledges that much of the business information communicated between the Parties through the course of business conducted in furtherance of this Agreement may be considered a trade secret of the other party. Each party thus agrees to preserve the secrecy of said information, including but not limited to, the identities of any and all vendors, consultants, and other subcontractors engaged in a commercial relationship with the other party. This provision shall be enforced from the date of this Agreement, and for a period of five (5) years thereafter.

VII.3  Applicability of Agreement.  Each Party agrees that the provisions of this Section VII extend to its employees, officers, directors and agents. Said principals further agree to provide the requisite internal security of the subject data within its organizations.

•  INDEMNIFICATION

VIII.1  Product Indemnity.  TVP shall defend, indemnify, and hold Client harmless from and against any claims, demands, liabilities, or expenses (including attorney’s fees and costs) for any injury or damage, including, but not limited to, any personal or bodily injury or tangible property damage, arising out of or resulting in any way from any alleged defects in the material or workmanship of the Products, to the extent that such claims, damages, liabilities, or expenses do not relate to, or arise out of, Client’s or Client’s purchaser’s uses of the Products in a way that are not compliant with all laws, rules, regulations, or instructions applicable to the Products.

VIII.2  Third-Party Product Indemnity.  Client shall defend, indemnify, and hold TVP harmless from and against any claims, demands, liabilities, or expenses (including attorney’s fees and costs) for any injury or damage, including, but not limited to, any personal or bodily injury or tangible property damage, arising out of or resulting in any way from any alleged defects in the material, workmanship, or performance of Third-Party Products, or any other alleged act, omission, or misrepresentation by Client.

VIII.3 Intellectual Property Rights/Infringement Indemnity. Client shall defend, indemnify and hold TVP harmless from and against any claims, demands, liabilities, or expenses (including attorney’s fees and costs) incurred by TVP arising from the alleged infringement of any patent, copyright, trademark, trade secret or other proprietary right by reason of the manufacture, sale, marketing, or use of Product in accordance with the terms of this Agreement. Upon threat of claim or claim of infringement, Client may, at its expense and option: (i) procure the right to continue using any part of Product; (ii) replace the infringing Product with a non-infringing Product of similar performance; or (iii) modify Product to make it non-infringing. TVP shall have no liability under this Paragraph VIII.3 for any claim of infringement arising from modification of the Products, as authorized by Client or otherwise, or for any claim of infringement arising from use of the Products with materials not furnished by TVP.

VIII.4 Cyber Indemnity. Client shall defend, indemnify, and hold TVP harmless from and against any claims, demands, liabilities, or expenses (including attorney’s fees and costs) incurred as a result of a breach of confidential information, theft of any customer information or unauthorized intrusions into the Client stores and any activities by a third party that may create a liability due to the unauthorized procurement, possession, or use of information obtained from the Client stores.

VIII.5 Limitation of Liability. Neither Party shall be liable to the other for lost profits of business, indirect, consequential or punitive damages, whether based in contract or tort (including negligence, strict liability or otherwise), and whether or not advised of the possibility of such damages. This limitation is not intended to limit liability for personal injury or death as a result of a defect in a Product in those jurisdictions where the law does not allow this limitation.

VIII.6 Insurance. Client will (at its own cost and expense) provide and maintain, in full force and effect during the term of this Agreement and for at least two (2) years thereafter, commercial general liability insurance, providing coverage for bodily injury and property damage and coverage for product and completed operations, product liability, personal and advertising injury, and contractual liability in an amount of not less than $1,000,000 per occurrence and $2,000,000 aggregate. Client shall name TVP, its parent, affiliates, subsidiaries, assigns and licensees as now or hereafter may exist as additional insureds on such policy. TVP may request proof of insurance at any time. In addition, Client will maintain any insurance required by law.

• GENERAL PROVISIONS

IX.1 Relationship of the Parties. Nothing herein contained shall be construed to place the Parties in the relationship of partners, joint venturers or commercial co-venturers, and neither the TVP nor the Client shall have any power to obligate or bind the other in any manner whatsoever, except as otherwise provided for herein.

IX.2 Notices. Any notice that either Party is required to give the other Party must be in writing and may be given: (i) by electronic means; (ii) by personal delivery to an officer of the Party; or (iii) by mailing the same by registered or certified mail to the Party to whom the notice is directed at the address of such Party as set forth at the beginning of this Agreement, or such other address as the Parties may hereinafter designate.

IX.3 Governing Law; Jurisdiction. This Agreement shall be construed and enforced in accordance with the laws of the State of New York. Any action, suit or other proceeding brought by either Party hereunder against the other shall be brought before binding arbitration in New York, New York. The arbitration shall be brought before one arbitrator selected by the American Arbitration Association (“AAA”) under the AAA’s commercial rules of arbitration.

IX.4 Cooperation. Each party agrees to execute and deliver such further documents and to cooperate as may be reasonably necessary to implement and give effect to the provisions contained herein.

IX.5 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform which results from causes outside its reasonable control.

IX.6 Attorneys’ Fees. In the event there is any dispute concerning the terms of this Agreement or the performance of any party hereto pursuant to the terms of this Agreement, and any party hereto retains counsel for the purpose of enforcing any of the provisions of this Agreement or asserting the terms of this Agreement in defense of any suit filed against said party, each party shall be solely responsible for its own costs and attorney’s fees incurred in connection with the dispute irrespective of whether or not a lawsuit is actually commenced or prosecuted to conclusion.

IX.7 Effective Date. This Agreement shall become effective upon the date of the execution of the SOW.  Your continued use of the Platform or services shall constitute your continued acceptance of the terms hereof.

IX.8 Section Headings. Section headings in this Agreement are for convenience only, and shall not be used in construing the Agreement.

IX.9 Incorporation of All Schedules. Every attached schedule referred to herein and attached hereto is hereby incorporated herein by reference as if set forth herein in full.

IX.10 Severability. A judicial determination that any provision of this Agreement is invalid in whole or in part shall not affect the enforceability of those provisions found to be valid.

IX.11 No Implied Waivers. If either party fails to require performance of any duty hereunder by the other party, such failure shall not affect its right to require performance of that or any other duty thereafter. The waiver by either party of a breach of any provision of this Agreement shall not be a waiver of the provision itself or a waiver of any breach thereafter, or a waiver of any other provision herein.

IX.12 Non-Disparagement. Each of the Parties agrees that it will not make any statement, including, without limitation, through social media outlets, that disparages, demeans, discredits or deprecates the other party at any time following the Effective Date of the SOW, provided, however, that nothing contained in this Agreement shall: (i) prohibit a party from asserting or enforcing any rights, claims, or defenses any of them may have against the other party, or any of their respective successors and assigns, in regards to obligations that shall continue to be owed and performed under this Agreement; or (ii) making statements they believe are necessary or advisable in connection with the fulfillment of their obligations or exercise of their rights under any applicable law.

IX.13 Binding Effect/Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective representatives, successors and permitted assigns. This Agreement shall not be assignable by either party, without the express written consent of the other party, which consent shall not be unreasonably withheld, including to a Person in which it has merged or which has otherwise succeeded to all or substantially all of such party’s business and assets to which this Agreement pertains and which has assumed in writing or by operation of law its obligations under this Agreement. Any attempted assignment in violation of this provision will be void.

IX.14 Entire Agreement. This Agreement, in conjunction with the SOW and Phantom T&C as applicable, constitutes the entire agreement between the Parties regarding its subject matter, and supersedes any and all previous proposals, representations or statements, oral or written. Any previous agreements between the Parties pertaining to the subject matter of this Agreement are expressly terminated.