Privacy & Legal

Terms of Service

Last updated: May 22, 2020

This is an agreement between you (“Brand”) and b8ta, inc. (with its affiliates, “b8ta”). Please read the Retail Management Agreement entered into by and between Brand and b8ta (the “Retail Management Agreement”), the Terms and Conditions, these Terms of Service, the Brand Privacy Policy, the Code of Conduct, and, if applicable, the Platform Terms and Conditions and Data Protection Addendum (collectively, the “Agreement”), before using any b8ta retail management services including signing up for an account to use the Platform (collectively, the “Services”). By using the Services, you agree to be bound by the terms of the Agreement. If you do not accept the terms of the Agreement, then you may not use the Services. Your use of any of the Services is subject to any additional agreements, rules, policies, and terms that apply to those Services.

The Agreement is subject to change by b8ta in its sole discretion at any time. When changes are made, b8ta will make a new copy of the Agreement available at b8ta.com/legal/brand-terms. b8ta will also update the “Last Updated” date at the top of the Agreement. Any changes to the Agreement will be effective immediately for new users of the Services and will be effective for existing users thirty (30) days after the earlier of (i) the date on which notice of such changes is posted at www.b8ta.com/legal/brand-terms or (ii) the date on which b8ta sends notice of such changes to such existing users. b8ta may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the SERVICES. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK www.b8ta.com/legal/brand-terms TO VIEW THE THEN-CURRENT TERMS.

1. Product.Brand acknowledges and agrees that b8ta’s performance of the Services is contingent upon Brand providing certain information, assets, materials and other information (together, the “Brand Collateral”) in a commercially reasonable and timely manner and Brand shall use best efforts to cooperate with b8ta’s reasonable requests related thereto. Brand shall be responsible for Product returns, repair, replacement, warranty obligations, or recalls, and will immediately notify b8ta in writing of any Product recalls or other Product-related obligations. Brand will honor and pass-through to b8ta all warranties relating to its Products so b8ta may provide the same to Customers (as defined below).

2. Authorized Reseller.If Brand provides Inventory to b8ta, Brand hereby appoints b8ta, and b8ta hereby accepts such appointment, as an independent, nonexclusive reseller of the Products, to market and sell the Products in the Territory, for the duration of any Retail Management Agreement which includes resale as a Service under the terms, conditions and licenses set forth in the Agreement.

3. License, Ownership.

a. Brand Collateral. During the Services Term (as defined in the Retail Management Agreement), Brand hereby grants to b8ta a nonexclusive, worldwide, royalty-free, sub-licensable (through multiple tiers of sublicensees) license to use, reproduce, modify, and publicly display the Brand Collateral to provide the Services and market and sell the Products in the Territory.

b. Customer Data and Brand Content. As between the parties, the parties agree that each party has the right to use and disclose Customer Data collected by such party as permitted by applicable law, subject to Section 11. Without limiting the generality of the foregoing, b8ta may generate from the operation of the b8ta web-based retail management platform (the “Platform”) or Customer Data, aggregated data, including, without limitation, sales revenue and returns data, and may use and disclose such data for any lawful purpose. Brand further acknowledges and agrees that it is not entitled to any information about Customers other than such Customer Data that Customers elect to share with Brand through the Platform. “Customer Data” means data collected through the Platform in connection with a Customer’s interactions and purchase behaviors with Brand’s Products through the Services and/or in a b8ta retail location (“Location”). “Customers” are consumers who visit and/or make purchases of products via the Services and/or in a Location. Rights and obligations with respect to content and information provided or submitted by, or on behalf of, Brand for use with the Platform are set forth in the Platform Terms and Conditions.

c. Marks. All trademarks, service marks, trade names, logos or other words or symbols identifying each party’s respective products and services (collectively “Marks”) are and shall remain the exclusive property of the owner thereof. Subject to the limitations set forth in the Agreement, each party (“Licensor”) grants the other party (“Licensee”) a limited, revocable, worldwide, royalty-free right and license to use and reproduce such party’s Marks, solely in connection with the Services and related marketing and promotional activities set forth in the Agreement and in accordance with the terms and conditions of the Agreement. Licensee’s use of Licensor’s Marks not authorized in the Agreement shall require the prior written approval of Licensor, which approval shall not be unreasonably withheld. Licensee’s use of Licensor’s Marks shall be in compliance with any instructions and guidelines respecting the Marks furnished in writing by Licensor and, as between the parties, will inure to the benefit of Licensor. Should Licensor reasonably object to the use of its Marks, Licensee will promptly cease using Licensor’s Marks in the manner identified by Licensor.

d. Ownership. Except with respect to the rights and licenses granted in the Agreement, (i) b8ta retains all rights, title, and interests in its Marks, Customer Data, and its Platform, including all intellectual property rights therein and (ii) Brand retains all rights, title, and interests in its Marks and its Brand Collateral, including all intellectual property rights therein.

4. Payment Terms.

a. Brand shall remit payment in US Dollars. In the event Fees due under any invoice or provision of the Agreement are not paid within fifteen (15) days after the applicable due date and are not subject to good faith dispute, such outstanding sums shall be subject to interest at the rate of 1.5% per month or the maximum amount allowed by law, whichever is less. For clarity, non-payment is a material breach of the Agreement and b8ta reserves the right, in addition to all other available remedies, to suspend or terminate provision of Services to Brand and take possession of Product inventory if Brand fails to pay any Fees due within thirty (30) days after the applicable due date. All charges in the Agreement are nonrefundable, including for termination by Brand, unless expressly agreed in writing to the contrary. Brand agrees to pay to b8ta all costs, including attorneys’ fees, incurred by b8ta in collecting any amounts due hereunder. Brand must notify b8ta in writing of any dispute regarding the amount of an invoice within five (5) days from the invoice date, otherwise all disputes and defenses will be deemed waived.

b. Any and all reports related to Fees required to be provided by Brand to b8ta (the “Fee Reports”) shall be either (i) provided through the use of b8ta’s software, as directed by b8ta or (ii) certified in writing by an authorized officer of Brand. Brand shall keep the following items related to Fee Reports (which may be kept electronically):  (a) full and accurate books of account and records in accordance with generally accepted accounting principles consistently applied, including, without limitation, a sales journal, general ledger, and all relevant bank account statements; (b) all receipts with regard to amounts set forth on the Fee Reports and credits, refunds and other pertinent transactions related thereto; (c) detailed original records of any exclusions or deductions from amounts set forth on Fee Reports and (d) such other documents and information as is reasonably requested by b8ta to confirm the accuracy of such Fee Reports.  Any and all books, receipts and records required to be kept with respect to such Fee Reports shall be kept for a period of one (1) year after the close of each calendar year and shall be available for inspection and audit by b8ta or its representative electronically at all times during regular business hours.  In addition, upon request of b8ta, Brand agrees to furnish to b8ta a copy of Brand’s state and local sales and use tax returns related to the subject matter of the Fee Report only. If it shall be determined as a result of such audit that there has been a deficiency in the payment of Fees to b8ta, then such deficiency shall become immediately due and payable with interest at the maximum lawful rate from the date when such payment should have been made. In addition, if Brand understates any amounts set forth on the Fee Reports by more than two percent (2%), and if b8ta is entitled to any additional Fees as a result of such understatement, then Brand shall pay to b8ta all reasonable costs and expenses (including reasonable auditor and attorneys’ fees) which may be incurred by b8ta in conducting such audit and collecting such underpayment if any. Notwithstanding anything else in this Agreement, b8ta may disclose Fee Reports to any party with which b8ta shares any portion of its revenue for the purpose of fulfilling its obligations under its agreements with third parties.

5. Warranty.

a. Each party represents and warrants to the other party that it has all corporate power, legal authority and rights necessary to enter into and to perform its obligations under the Agreement, and it will comply, in all material respects, with all federal, state and local laws, rules, regulations and ordinances applicable to such party’s performance under the Agreement.

b. b8ta represents and warrants to Brand that (i) the Platform (excluding Brand Collateral) will not infringe, misappropriate or violate any intellectual property rights of a third party; (ii) b8ta will perform the Services in a professional manner with qualified personnel; and (iii) b8ta shall not make any representations or warranties with respect to Products that are inconsistent with Brand’s standard warranties provided in writing to b8ta. b8ta’s sole obligation and Brand’s sole remedy for breach of the warranty in Section 5(b)(i) shall be for b8ta to comply with its indemnification obligations set forth in Section 8(a); b8ta’s sole obligation and Brand’s sole remedy for breach of the warranty in Section 5(b)(ii) and 5(b)(iii) shall be for b8ta to re­perform or correct the affected Services. The foregoing sets forth b8ta’s sole obligations, and Brand’s sole remedies, with respect to the foregoing warranties.

c. Brand represents and warrants to b8ta that (i) it has and will maintain all approvals, licenses, registrations, permits, certifications and any other authorizations required by any law or regulation related to the manufacture, distribution or sale of the Products; (ii) the Products are authentic, the Brand Collateral is accurate, complete and in compliance with all applicable laws and regulations, and the Brand Marks, Brand Collateral, and the Products, and the use of any of the foregoing in accordance with the Agreement, do not and will not infringe, misappropriate, or violate any intellectual property rights, privacy rights, or other right of a third party; (iii) all Products shall perform and operate in accordance with Brand’s standard warranty, (iv) the Products, including the packaging and transportation thereof, are in compliance with all applicable laws and regulations, are not subject to any recalls, and can be marked and sold by b8ta without the need for any special license or registration, and (v) Brand has identified in writing to b8ta any hazardous material or other specialized requirements relating to the Products.

d. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 5, NEITHER PARTY MAKES ANY WARRANTIES WITH RESPECT TO THE SERVICES, PROMOTIONAL ACTIVITIES, PROMOTIONAL MATERIALS, MARKETING COLLATERAL, REPORTS, DATA, CONSUMER INSIGHTS, MARKS, OR ANY OTHER ACTIVITIES OR DELIVERABLES IN CONNECTION WITH THE AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY OR ALL OF THE FOREGOING.

6. Insurance.Unless otherwise agreed in writing by the Parties, during the Placement Term and for one (1) year thereafter, Brand shall maintain commercial general liability (“CGL”) insurance and, if necessary, commercial umbrella insurance with a limit of not less than $2,000,000 for each occurrence. CGL insurance shall be written on ISO occurrence form CG 00 01 04 13 (or a substitute form providing equivalent coverage) and shall cover liability arising from premises, operations, products-completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). b8ta shall be included as an insured under the CGL via ISO vendors endorsement CG 20 15 or an endorsement providing equivalent coverage, and under the commercial umbrella, if any. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to b8ta. There shall be no endorsement or modification of the CGL to make it excess over other available insurance; alternatively, if the CGL states that it is excess or pro rata, the policy shall be endorsed to be primary with respect to the additional insured. There shall be no endorsement or modification of the CGL limiting the scope of coverage for liability assumed under a contract. Brand waives all rights against b8ta and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained pursuant to the Agreement. Insurer shall endorse CGL policy as required above to waive subrogation against b8ta with respect to any loss paid under the policy.

7. Limitation of Liability

a. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNITY OBLIGATIONS PURSUANT TO SECTION 8, PAYMENT OBLIGATIONS HEREIN, CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 9, AND BRAND’S OBLIGATIONS UNDER SECTION 11, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES OR COSTS DUE TO LOSS OF PROFITS, BUSINESS, DATA, USE OR GOODWILL ARISING OR RESULTING FROM OR IN CONNECTION WITH THE AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL B8TA BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

b. B8TA'S TOTAL MAXIMUM AGGREGATE LIABILITY TO BRAND OR ANY THIRD PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID BY BRAND TO B8TA HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION AROSE.

8. Indemnification.

a. b8ta shall indemnify, defend and hold harmless Brand, its officers, directors, affiliates, subsidiaries, shareholders, agents, and employees from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred, resulting from or arising out of any third party claim, demand or cause of action to the extent arising from a breach of b8ta’s warranties set forth in Section 5(b)(i) or b8ta’s willful misconduct or gross negligence in the performance of its obligations under the Agreement. If any portion of the Platform becomes, or in b8ta’s opinion is likely to become, the subject of a claim of infringement, b8ta may, at b8ta’s option: (i) procure for Brand the right to continue using the affected portion of the Platform; (ii) replace the affected portion of the Platform with non-infringing software or services which do not materially impair the functionality of the Platform; (iii) modify the affected portion of the Platform so that it becomes non-infringing; or (iv) terminate the Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Brand will immediately cease all use of Services. Notwithstanding the foregoing, b8ta will have no obligation under this Section 8(a) or otherwise with respect to any infringement claim based upon (A) any use of the Platform not in accordance with the Agreement; (B) any use of the Platform in combination with other products, equipment, software or data not supplied by b8ta; or (C) any modification of the Platform by any person other than b8ta or its authorized agents (each, an “Exclusion”). This Section 8(a) states the sole and exclusive remedy of Brand and the entire liability of b8ta, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions. The b8ta obligations as set forth above are expressly conditioned upon each of the foregoing: (x) Brand will promptly notify b8ta in writing of any threatened or actual claim or suit; (y) b8ta will have sole control of the defense or settlement of any claim or suit; and (z) Brand will cooperate with b8ta to facilitate the settlement or defense of any claim or suit. The foregoing indemnity sets forth b8ta’s sole liabilities, and Brand’s sole remedies, with respect to the foregoing claims.

b. Brand shall indemnify, defend and hold harmless b8ta, its officers, directors, affiliates, subsidiaries, shareholders, agents, and employees from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred, resulting from or arising out of any third party claim, demand or cause of action to the extent arising from: an Exclusion; a breach of Brand’s warranties; a breach of Brand’s obligations pursuant to Section 11; Brand’s use of the Services; Brand’s willful misconduct or gross negligence; product liability in any way relating to Products, including without limitation, any liability, loss, damage, injury, or death caused by the Products, Product defects, Product warranty obligations or recalls; and/or Brand events held in any b8ta retail location, including without limitation, the Locations, except to the extent arising entirely from b8ta’s gross negligence or intentional misconduct. Brand shall undertake and conduct the defense of any suit so brought against b8ta by reason of any of the foregoing, whether meritorious or not, and shall pay all expenses and fees of counsel which shall be incurred in connection with such defense, together with all costs, damages and profits recoverable in every such suit or settlement thereof. Brand shall keep b8ta advised of the progress of any such suit and b8ta shall have the right to participate in such suit. If Brand shall fail to take timely action to defend any such suit then b8ta can defend such suit at Brand’s expense. Brand shall not have the right to settle, compromise or otherwise enter into any agreement regarding the disposition of any claim of b8ta without the prior written consent and approval of b8ta, other than a claim for monetary damages.

9. Confidentiality.From time to time during the Agreement Term, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs, products, services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, including, without limitation, pricing and contract terms, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9(a) by the Receiving Party or any of its representatives (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party; or (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party's Confidential Information. The Receiving Party shall not be in violation of this Section 9(a) for disclosures of the Disclosing Party’s Confidential Information if Confidential Information is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction; provided that the Receiving Party gives reasonable notice and assistance to the Disclosing Party to contest such order or requirement. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information (y) on a confidential basis to its legal or financial advisors that need to know in order to provide business or legal advice to such party and (z) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party. The Receiving Party shall (A) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (B) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section 9(a) caused by any of its representatives. At any time during or after the Agreement Term, at the Disclosing Party's written request, the Receiving Party shall promptly return, and shall require its representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party's Confidential Information, or, at the Disclosing Party’s election, destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its representatives in any court of competent jurisdiction to prevent the breach or threatened breach of this Section 9(a) and to secure its enforcement.

10. Term: Termination; Suspension.

a. Either party may terminate any or all Retail Management Agreements if (i) the other party materially breaches the Agreement and fails to cure such breach, if curable, within thirty (30) days following written notice by the non-breaching party describing such breach with reasonable particularity; or (ii) the other party ceases to do business as a going concern, makes an assignment for the benefit of creditors, is insolvent or the subject of receivership, or in the event any substantial part of the other’s property is or becomes subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency without being released or satisfied within ten (10) days thereafter. Further, b8ta shall have the right, immediately upon written notice to Brand, to terminate any or all Retail Management Agreements in the event that (v) there is a Brand Placement Termination (as defined in the Retail Management Agreement), (w) any other individual agreement that is part of the Agreement is terminated, (x) a Product is hazardous, defective, or is or becomes subject to recall, (y) a Product’s return rate exceeds fifteen percent (15%), and/or (z) Brand is non-compliant with b8ta’s Code of Conduct. If b8ta notifies Brand that an anticipated Location will not open to the public, neither party has any rights or obligations with respect to such Location. In addition, b8ta may cease to provide Services in any Location immediately upon notice to Brand in the event that b8ta ceases business operations at such Location and Brand shall be reimbursed for any pre-paid Fees on a pro rata basis. Upon expiration or termination of the Retail Management Agreement for any reason, (A) b8ta shall cease performance of all Services and each party shall return all of the other party’s materials in its possession to the other party and (B) within fifteen (15) business days of termination, b8ta and Brand shall reconcile any Product inventory and return such to Brand in accordance with the applicable Retail Management Agreement. Notwithstanding the foregoing, Brand’s obligation to pay all Fees properly accrued through the termination date and b8ta’s obligation to remit to Brand all proceeds from Products sold through the termination date shall survive any termination of the Agreement.

b. b8ta may in its discretion temporarily suspend the provisions of the Services at one or more Locations during the Placement Term, without notice; provided that, for any such suspension in excess of one (1) business day, b8ta shall notify Brand in writing (email acceptable) as soon as reasonably practicable and Brand shall be reimbursed for any pre-paid Placement Fee applicable to such Location(s) on a pro rata basis for the period of any such suspension.

11. Privacy.The parties agree to comply with the Data Protection Addendum.

12. General Provisions.

a. Notices. Each party must deliver all notices or other communications required or permitted under the Agreement in writing to the other party at the address listed in the Retail Management Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service. A party may also provide written notice to the other party by email to the email address listed in the Retail Management Agreement where specifically noted as acceptable in the Agreement. Notice will be effective upon receipt or refusal of delivery.

b. Independent Contractor. It is expressly agreed that the parties are independent contractors in the performance of the Agreement. Neither party shall act or attempt to act, or represent itself, directly or by implication, as agent, joint venture, partner or representative of the other party or in any manner assume or attempt to assume or create any obligation or liability of any kind, nature or sort, express or implied, on behalf of or in the name of the other party.

c. Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer the Agreement, or its rights and obligations therein, without obtaining the prior written consent of the other party. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign the Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. Notwithstanding the foregoing, b8ta reserves the right to terminate the Agreement with immediate effect in the event the Agreement is assigned, subcontracted, delegated, or transferred to a third party to whom b8ta has agreed not to provide services pursuant to any of b8ta’s contractual obligations. The terms of the Agreement will be binding upon the parties and their respective successors and permitted assigns.

d. Force Majeure. Neither b8ta nor Brand shall be held responsible or deemed to be in default under the Agreement for any delay or failure in performance of any of their respective obligations hereunder (except for any obligations to make payments to the other party hereunder) if such delay or failure is the result of causes beyond the control of the party whose obligations are so affected. Such causes shall include, without limitation, acts of God, strikes, lockouts, riots, insurrections, civil disturbances, sabotage, embargoes, blockades, acts of war, acts of terrorism, acts or failures to act of any governmental or regulatory body (whether civil or military, domestic or foreign), governmental regulations imposed after the fact, Internet outages, power failures, fires, explosions, floods, epidemics, earthquakes or other natural or manmade disasters, and all occurrences similar to the foregoing (collectively referred to herein as ”Force Majeure”). The party affected by a Force Majeure event, upon giving prompt notice to the other party, shall be excused from performance hereunder on a daytoday basis to the extent of such prevention, restriction, or interference (and the other party shall likewise be excused from performance of its obligations on a daytoday basis to the extent that such obligations relate to the performance so prevented, restricted, or interfered with); provided that the party so affected shall use commercially reasonable efforts to avoid or remove such cause of nonperformance and to minimize the consequences thereof. Both parties shall resume performance hereunder upon removal of such cause.

e. Governing Law; Dispute Resolution. The Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflicts of laws provisions that require the application of the law of a different jurisdiction. Except for a breach or threatened breach of Section 9 (Confidentiality), in the event of a dispute regarding any matter under the Agreement, such dispute shall be referred to a representative of each party with authority to resolve such dispute and each party agrees to make diligent and commercially reasonable efforts to resolve the dispute prior to making any claim or filing any legal proceeding. Except as set forth in Section 9(a), each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts in San Francisco County, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.

f. Severability; Waive. If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

g. Order of Precedence. If there is a conflict between any term of the Retail Management Agreement, as amended from time to time, and the Terms of Service or a Consignment Order, the Terms of Service will govern.

h. Survival. The parties hereto intend that Sections 3(b), 3(d), 4, 5 - 12 and the corresponding subsections of each, if any, and any payment rights conveyed under the Agreement shall survive the expiration or termination of the Agreement for any reason.