Terms of Service

SECTION II FOR FULFILLMENT SERVICES

THIS FULFILLMENT AND 3PL SERVICES AGREEMENT (THE “AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND NDN FULFILLMENT. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS AND PROGRAM POLICIES AS OUTLINED HEREIN.

This Agreement is by and between NDN Fulfillment located at 1236 NW 5th Street, Oklahoma City, OK, 73106, USA (also referred to as “NDN”) and you or the company you represent (hereinafter referred to as “Customer”), (collectively, the “Parties”).

WHEREAS NDN Fulfillment is a warehousing and third-party logistics provider specializing in direct-to-consumer fulfillment services, further defined as the storing of a Customer’s product, the packaging, and subsequent shipping thereof, specific to the needs of the Customer and as further defined herein (the “Services”). The Services are provided to Customers that own inventory of physical products and who desire to ship that inventory to Consumers on a one-to-one basis, in loose pack or palletized packing to distribution centers or other warehousing facilities, or a combination of both. The Services are also provided to Customers selling branded products on the Customer Website and other internet properties;

and

WHEREAS, Customer is a retail brand selling Products to Consumers and seeking the Services provided by NDN Fulfillment;

The Parties agree as follows:

1. Definition of Terms.

   “Abandoned Product” is Product that Customer has surrendered to NDN Fulfillment.

   “Authorized Returns” are orders received by NDN Fulfillment with a valid Return Merchandise Authorization (RMA) number as provided by Customer to Customer.

   “Carrier” is any company responsible for delivery of an Order to a Consumer including, but not limited to, FedEx, FedEx Global Services, FedEx Trade Networks, UPS, UPS Global Delivery, USPS (United States Postal Service), DHL, TNT Express, etc.

   “Consumer” is any addressee provided to NDN Fulfillment by Customer and to whom an order was shipped.

   “Customer Website” is an internet address connected to NDN Fulfillment for the purpose of this Agreement which serves to sell Products to Consumers (e.g., Shopify storefront, BigCommerce, Amazon Marketplaces, eBay, Walmart websites, or any other ecommerce platform to which Customer is connected via NDN Fulfillment technologies).

   “Default Status” is a Customer account in financial arrears for more than ten (10) days but less than twenty (20) days.

   “Delivered Order” is any Order transferred to the custody of a Carrier, with instructions to deliver the Product(s) to the Consumer and assigned a tracking or delivery confirmation number by the Carrier.

   “Delivery Fees” are the fees charged by NDN Fulfillment for any Carrier related services including, but not limited to, postage, delivery fees, extended delivery fees, residential service fees, expedited delivery fees, Saturday or weekend delivery fees, fuel surcharges, duties, taxes, importer fees, brokerage fees, sea freight fees, Carrier address correction fees, bad address fees, return to sender fees, high-rise door delivery fees, etc.

   “Disposed Inventory” is inventory that is marked for disposal by NDN Fulfillment for reasons outlined in this agreement including, but not limited to, Abandoned Product.

   “Fees” are the sum of all billable services and costs required to be paid by Customer to NDN Fulfillment as outlined in this Agreement and the Fulfillment Services Addendum, attached hereto.

   “Order/s” is/are one or more requests sent to NDN Fulfillment by Customer Website or other connected in the approved format required by NDN Fulfillment.

   “Order Admin Fees” are fees charged for the use of a credit card to pay for all related services provided by NDN Fulfillment.

   “Payment Method” is a form of payment provided by Customer (e.g., active credit card, active debit card, ach agreement for active checking account, etc.) used to pay for any fee charged by NDN Fulfillment related to this Agreement.

   “Pending Order” is any order received by NDN Fulfillment from Customer but has not been processed with the Carrier and has not been assigned a tracking or delivery confirmation number.

   “Pre-Termination Status” is a Customer account in financial arrears for less than ten (10) days.

   “Processing Order” is any order received by NDN Fulfillment from Customer and that has been assigned a tracking or delivery confirmation number by the associated Carrier for that Order but that has not yet been transferred to the custody of the Carrier.

   “Product” is any item received from Customer and accepted by NDN Fulfillment and stored for warehousing at a NDN Fulfillment facility.

   “Product Out of Stock” is any Product for which no available inventory is in possession by NDN Fulfillment.

   “Product Ready to Ship” is any Product that has been entered into the NDN Fulfillment inventory management system and marked as “ready for fulfillment.”

   “Refusals” are orders shipped by NDN Fulfillment but returned by the intended Consumer for any reason.

   “Removal Fees” are fees associated with removing units from NDN Fulfillment facilities when not included in the processing of an Order.

   “Returns” are any Delivered Order(s) returned to NDN Fulfillment for reasons including, but not limited to, bad address, no forwarding address, no such number, no such addressee, Refusals, and Authorized Returns.

   “Special Projects” are any service performed by NDN Fulfillment that is not expressly outlined in this Agreement.

2. Term & Termination

   1. Term: The initial term of this Agreement shall commence on the date of execution (“Commencement Date”) and shall continue in full force and effect until terminated by either party as provided herein

   2. Termination by Either Party: Either party may terminate this Agreement at any time by providing written notice to the other party, or upon cancellation of service subscriptions.

   3. Right to Refuse Service: NDN Fulfillment reserves the right to refuse service to any customer at its sole discretion. This decision may be based on, but is not limited to, considerations such as inventory turnover rate, dimensions, volume, and weight of the inventory, and the nature of the products being stored and handled. NDN Fulfillment is not required to disclose the reasons for refusal of service.

   All services provided by NDN Fulfillment shall cease.

   Any remaining unused credits will be forfeited without refund or possibility of restoration.

   The customer remains liable for any outstanding balances owed to NDN Fulfillment.

   Provisions relating to Confidentiality, Indemnification, Limitation of Liability, and any other clauses which by their nature should survive termination, shall continue to apply.

3. Fees and Invoices.

   Customer agrees to pay all costs outlined in the Fulfillment ServicesAddendum, attached hereto, and considered part and parcel to this Agreement. Customer agrees to always maintain an active Payment Method on file with NDN Fulfillment. Customer expressly authorizes NDN Fulfillment to charge the card or checking account on file based on the following schedule:

   1. Daily: All Order related fees will be charged daily to the Payment Method on file. Any Fees accrued overnight, on weekends, or during holidays will be charged the following business day.

   2. Monthly: All services accrued monthly will be charged on or as close to the first business day of each month to the Payment Method on file.

   3. As Needed: Special Projects will be charged as agreed between the Parties.

   4. Declined Payments and Outstanding Fees. NDN Fulfillment reserves the right to hold Processing Orders for non-payment until such time as payments are successfully received from Customer. Customer agrees and understands that it is Customer’s sole responsibility to maintain sufficient funds in its default Payment Method on file. Customer agrees to hold NDN Fulfillment harmless for any failure of the Customer to maintain sufficient funds or resulting overdrafts or non-sufficient funds (NSF) fees arising from any withdrawal of funds from Customer’s financial institution by NDN Fulfillment. Declined charges will be assessed a fee of $45 (“NSF Fee”) for each day NDN Fulfillment is unable to successfully collect payment from Customer. NDN Fulfillment will continue to attempt to collect payment from the Customer each day up to ten (10) days. NSF Fees from previous days will be added to the total to be collected each subsequent day. Customer shall not accrue more than one (1) NSF Fee per day payment while collection attempts are made.

   5. Non-Payment of Fees. Unpaid invoices that accrue beyond ten (10) calendar days will move the account into Pre-Termination Status. Accounts in pre-termination status will be given ten (10) days to bring the account current by successfully submitting payment for all open invoices and all accrued NSF Fees.

   6. Default Status. Unpaid invoices that accrue beyond the Pre-Termination Status will move the account into Default Status. Customer will have 10 (ten) additional calendar days from Default Status notification to resolve the unpaid invoices. CUSTOMER UNDERSTANDS AND AGREES THAT IF OPEN INVOICES ARE NOT RESOLVED DURING THE DEFAULT STATUS TIMELINE, THE ACCOUNT WILL BE CLOSED AND TERMINATED. ALL INVENTORY WILL BECOME THE PROPERTY OF NDN Fulfillment AND WILL BE MARKED AS ABANDONED PRODUCT and MARKED FOR DISPOSAL.

   7. Disposal of Product. NDN Fulfillment may dispose of these Products as appropriate based on the inventory (e.g., by selling, recycling, donating, or destroying it) and retain any proceeds we may receive from the disposal. Title to each disposed Product will transfer to NDN Fulfillment (or a third party we select such as a charity) at no cost, free and clear of any liens, claims, security interests or other encumbrances to the extent required to dispose of the Product, and we may retain any proceeds, we may receive from the disposal.

   8. Disputed Fees. The Parties shall use their best efforts to expediently resolve any disputed invoice.

   9. Order Processing. Orders for fulfillment consideration must be provided to NDN Fulfillment by Customer through the NDN Fulfillment Application Program Interface (API). Manual processing of orders through xml, csv, txt or any other data transfer format will not be accepted by NDN Fulfillment and are not considered Orders by this Agreement.

   Orders received prior to 11am CST, M-F, shall be processed for fulfillment by the end of business that day, so long as the Customer has sufficient Product Ready to Ship, and shall be tendered to the Carrier of record by the end of business the same day. In the event that NDN Fulfillment received Orders from Customer for Products Out of Stock, NDN Fulfillment will not be required to process the Orders. Orders received after 11am CST M-F, during weekends, or during Holidays shall be processed on the following business day. NDN Fulfillment will not be held liable for Carrier related delays including missed pickups by Carrier.

   10. Tracking Numbers. NDN Fulfillment will provide valid tracking numbers from the Carrier of record for Shipped Orders and directly upload them to the Customer’s Website by the end of business the same day the Order moves to Shipped Order status, so long as the Customer Website is properly functioning.

   11. Bulk Shipments. Bulk shipment requests received during normal business hours, Monday– Friday 8:00 AM to 5:00 PM, require up to 72 business hours to be prepared for outbound processing.

   12. Customer Arranged Pickup. When Customer arranges the pickup of Customer inventory of any kind, THE CARRIER MUST CONTACT NDN Fulfillment DIRECTLY TO SCHEDULE A PICKUP DATE AND TIME. NDN Fulfillment will provide the weights and dimensions of the shipment for you (the Customer) to provide to the Carrier. All freight is FOB Oklahoma City and responsibility for the product transfers to you (the Customer) and the Carrier once the shipment leaves a NDN Fulfillment facility.

   13. NDN Fulfillment Arranged Pickup. NDN Fulfillment will prepare the shipment and provide weights and dimensions to the Carrier. All freight is FOB Oklahoma City and responsibility for the product transfers to you (the Customer) and the Carrier once the shipment leaves a NDN Fulfillment facility.

   14. Support. Customer agrees to provide all Support and Service to its Consumers related to Customer’s orders. Other than providing Customers with valid tracking or delivery confirmation numbers via the method described herein, NDN Fulfillment shall have no other obligations related to Consumer Support.

   15. Changes in Terms of Service. NDN Fulfillment may, at its sole discretion, change, add, amend or add to, or delete any aspect to this Agreement, including but not limited to, the amount of any fees or charges. By accepting this Agreement, Customer understands that NDN Fulfillment will make its best effort to provide a thirty (30) day notice of any updates via Customer’s contact information on file with NDN Fulfillment, but barring any applicable law, changes may be effective as soon as immediately. Any such changes will be deemed effective on the date of notice unless otherwise provided.

   16. Termination. Either Party may terminate their business relationship with the other no less than with 30 days written notice (“Notice of Termination”), with or without cause, and such Notice of Termination shall include the last day inventory will be stored in NDN Fulfillment facilities (“Removal Date”), in which case Customer shall make arrangements for the removal of its goods from NDN Fulfillment’s warehouses at Customer’s expense no later than the Removal Date.

   Upon termination of this Agreement, both Parties shall cooperate in the timely return of Products to the location of Customer’s choice and at Customer’s sole expense.

   In the event that Customer has an accrued balance of Fees at the time of Notice of Termination, Customer shall be required to pay those amounts in full prior to NDN Fulfillment releasing Customer Product for shipment to another facility. NDN Fulfillment reserves the right to hold the Product until such time as any past due or accrued Fees are paid in full by Customer. Product remaining in NDN Fulfillment facilities after the Removal Date shall be treated as Abandoned Product unless the Parties have expressly entered into an agreement to do otherwise.

   17. Permanent Removal of Product. Customer may permanently remove Product from NDN Fulfillment at its discretion. Customer agrees to pay the corresponding Removal Fees as outlined herein.

   18. Regulation and Authorization. Customer represents and warrants that it is legally authorized and has obtained all necessary regulatory approvals and certificates to sell any Product it intends to offer. Furthermore, if a legal entity other than a sole proprietorship wishes to enter into agreement, Customer warrants that it has received authorization and approval to enter into this agreement from its Board of Directors, Members, Owners or President or other party governing the entity and is legally permitted to enter into such legally binding agreement.

   19. Customer further represents that it will conform to any and all laws, rules, regulations, requirements and/or other standards that are established by the Federal Trade Commission, state and local consumer protection agencies, and credit card governing agencies regarding Customer’s Products and the sale of Products over the Internet.

   20. Taxes. Each Party agrees to report and pay its own taxes imposed on its income by any jurisdiction, such as state and federal income taxes. NDN Fulfillment does not and will not collect taxes on behalf of Customer and will not maintain an escrow account for the payment of taxes. Customer understands that it is solely responsible for payment of taxes to the respective states or governing entities and will hold NDN Fulfillment harmless and indemnify and defend NDN Fulfillment for all such tax liability.

   21. Limitations on Liability. NDN Fulfillment assumes no liability for disruptions or improper operation of its equipment or software for any reason, including, but not limited to, vandalism, theft, phone service outages, Internet disruptions, human error, extreme or severe weather conditions or any other causes in the nature of “Acts of God” or force of nature. NDN Fulfillment shall not be responsible for consequential damages or punitive or exemplary damages under any circumstances. In no case shall Customer be entitled to recover damages from NDN Fulfillment, which exceed the sum of the amounts of Fees retained by NDN Fulfillment under this Agreement during the six months prior to event giving rise to the claim for damages. Customer agrees that claims brought by Customer must be brought in a court of appropriate jurisdiction in the venue of Oklahoma City, Oklahoma and that Oklahoma law applies to all disputes. Customer further agrees that prior to bringing any claims against NDN Fulfillment, Customer must first notify NDN Fulfillment in writing and grant NDN Fulfillment 30 days to research any such claim and an additional thirty (30) days to remedy the same if warranted. Thereafter, Customer may bring suit, but the right to any such suit shall expire within one year of the claim arising. These conditions to suit do not apply for issues arising for nonpayment of Fees by the Customer.

   22. Mediation. All disputes, claims and other matters in controversy arising directly or indirectly out of or related to this Agreement, or the breach thereof, whether contractual or non-contractual, shall be submitted first to voluntary mediation, by written notice to the other Party or Parties. In the mediation process, the parties will try to resolve their differences voluntarily with the aid of an impartial mediator, who will attempt to facilitate negotiations. The mediator will be selected by agreement of the Parties. If the Parties cannot agree on a mediator, a mediator will be designated by the American Arbitration Association in the location of Oklahoma City, OK (“AAA”) at the request of a Party. The mediation will be conducted as specified by the mediator and agreed upon by the parties. The parties agree to discuss their differences in good faith and to attempt, with the assistance of the mediator, to reach an amicable resolution of the dispute. The mediation will be treated as a settlement discussion and, therefore, will be confidential. The mediator may not testify for either party in any later proceeding relating to the dispute. No recording or transcript shall be made of the mediation proceedings. Each party will bear its own costs in the mediation. The fees and expenses of the mediator will be shared equally by the parties. If a dispute cannot be resolved within ninety days after the written notice beginning the mediation process (or a longer period, if the Parties agree to a Standstill provision for further legal action), the mediation shall terminate and the parties shall have the right to file a judicial proceeding in a court with competent jurisdiction in the state of Oklahoma, county of Oklahoma seeking equitable or injunctive relief after the expiration of said ninety day or extended period.

   23. Miscellaneous Provisions. The headings contained herein are inserted for convenience only and shall not be deemed to have any substantive meaning. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable in any manner, the remaining provisions of this Agreement shall nonetheless continue in full force and effect without being impaired or invalidated in any way. In addition, if any provision of this Agreement may be modified by a court of competent jurisdiction such that it may be enforced, then that provision shall be modified and as modified shall be fully enforced.

   Except as otherwise stated in this Agreement, this Agreement contain the entire understanding of the Parties with respect to its subject matter, and supersedes all prior or contemporaneous agreements, understandings or negotiations. No modification or alteration of this Agreement shall be deemed effective unless in writing and signed by the parties.

   The terms used in this Agreement, regardless of the number and gender in which they are used, shall be construed to include the other number (singular or plural), and other genders (masculine, feminine or neuter), as the context or sense of this Agreement or any paragraph or clause may require.

   This Agreement are solely for the benefit of the Parties hereto and shall not confer upon third parties any remedy, claims or actions or other right.

SECTION III: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION

• 3.1. DISCLAIMER OF WARRANTY. Service Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Service Provider or by third-party providers, or because of other causes beyond Service Provider’s reasonable control, but Service Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

• 3.2. LIMITATION OF LIABILITY. (A) CUSTOMER AGREES THAT USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. NEITHER SERVICE PROVIDER NOR SERVICE PROVIDER’S AFFILIATES NOR ANY RESPECTIVE EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE USE OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE; NOR DOES SERVICE PROVIDER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED. (B) ANY DOWNLOADABLE SOFTWARE, PRODUCTS OR OTHER MATERIALS, WITHOUT LIMITATION, IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AGAINST INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS OF USE. (C) ALTHOUGH ALL INFORMATION AND MATERIALS PROVIDED VIA THE SERVICES IS BELIEVED TO BE RELIABLE, SERVICE PROVIDER MAKES NO REPRESENTATIONS, NEITHER EXPRESSLY NOR IMPLIEDLY, AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE THE SERVICES. (D) IN NO EVENT SHALL SERVICE PROVIDER, SERVICE PROVIDER’S EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, VENDORS, AND/OR SERVICE PROVIDER’S OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AND MEMBERS, BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE THE SERVICES. (E) SERVICE PROVIDER DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF CUSTOMER’S CUSTOMER DATA INFORMATION. BY UTILIZING THE SERVICES CUSTOMER ACKNOWLEDGES AND AGREE TO SERVICE PROVIDER’S DISCLAIMER OF ANY SUCH LIABILITY. IF CUSTOMER DOES NOT AGREE, CUSTOMER SHOULD NOT ACCESS OR OTHERWISE UTILIZE THE THE SERVICES. (F) SERVICE PROVIDER’S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF SERVICE PROVIDER’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES CUSTOMER PAYS TO SERVICE PROVIDER IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) ONE THOUSAND U.S. DOLLARS AND NO/CENTS ($1,000.00,) WHICHEVER IS GREATER. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. The above limitations shall survive these Terms and inure to the benefit of Service Provider and Service Provider’s affiliates and respective directors, officers, employees and agents.

• 3.3. INDEMNIFICATION. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SERVICE PROVIDER AND ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, AND VENDORS FROM AND AGAINST ALL CLAIMS, SUITS, AND EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING OUT OF OR RELATED TO (A) CUSTOMER’S USE OF THE SERVICES; (B) CUSTOMER’S NONCOMPLIANCE WITH OR BREACH OF THIS AGREEMENT; (C) CUSTOMER’S VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS; OR (D) THE UNAUTHORIZED USE OF THE SERVICES BY ANY OTHER PERSON USING CUSTOMER’S INFORMATION.

• 3.4. PRODUCT CATALOGS DISCLAIMER. SERVICE PROVIDER ADDS THE ABILITY TO IMPORT PRODUCTS FROM PRODUCT CATALOGS BASED ON REQUESTS BY USERS AND DOES NOT ENDORSE THE USE OF CATALOGS OR ANY PRODUCTS ON THE SITE. CUSTOMER AGREES TO CONTACT THE PRODUCT CATALOG OR PRODUCT OWNER BEFORE IMPORTING, SELLING OR ADVERTISING THE PRODUCT. SERVICE PROVIDER DOES NOT PROMOTE THE ILLEGAL USE OR SELLING OF PRODUCTS. CUSTOMER AGREES TO MAKE SURE ALL LAWS ARE FOLLOWED AND ACKNOWLEDGES THAT SERVICE PROVIDER DOES NOT PROMOTE OR ENDORSE THE USE OF ANY PRODUCTS ON CUSTOMER’S STORE.

SECTION IV: GOVERNING LAW; ARBITRATION

• 4.1. Governing Law. These Terms shall be governed and construed in accordance with the laws of the state of Oklahoma without regard to its conflicts of law provisions. Customer agrees to submit to the personal jurisdiction of the courts located in Oklahoma County, Oklahoma, and any cause of action that relates to or arises from these Terms and/or the Services must be filed therein unless subject to the binding arbitration provisions of Section 6.2, infra.

• 4.2. Arbitration. The Parties agree that any dispute concerning, relating, or referring to these Terms and/or the Services shall be resolved exclusively by binding arbitration in accordance with the substantive laws of the state of Oklahoma and shall be brought for arbitration in Oklahoma County, Oklahoma, pursuant to the rules of the American Arbitration Association. The arbitrator and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this contract, including but not limited to any claim that all or any part of this contract is void or voidable. Nothing herein prevents either Party from seeking any interim injunction it deems necessary in order to preserve the status quo prior to the resolution of any dispute, in any jurisdiction.

SECTION V: INTELLECTUAL PROPERTY

• 5.1. Ownership. All proprietary software, third party licensed software, software libraries, services, methodologies, techniques, algorithms, tools, materials, products, ideas, designs, and know-how used by NDN Fulfillment in providing the Services (including all reports and their copies, enhancements, modifications, revisions, and derivative works of any of the foregoing) and deliverables (whether oral or written) are, and shall remain, the sole and exclusive property of NDN Fulfillment. Nothing herein shall cause or imply any sale, license, or other transfer of proprietary rights of or in any third party software or products from NDN Fulfillment to Customer.

• 5.2. Grant of License. Service Provider reserves the right to reference Customer on public customer lists and to use Customer’s name and logo on the Service Provider’s Web site for marketing purposes. Additionally, Service Provider may request the use of Customer’s name and/or logo in press releases, advertising material and other promotional material. Service Provider may, subject to Customer’s written approval also publish a case study outlining the success of the Project, provided that it does not disclose any confidential information. Any such intent for use of Customer marks will be presented to the Customer in advance.

SECTION VI: MISCELLANEOUS

• 6.1. Server Location; International Transfer. Service Provider operates globally, so it is necessary to transfer Customer’s information internationally. In particular, Customer’s information will likely be transferred to and processed by Service Provider’s servers provided by heroku.com and amazon.com, which process data internationally. The data protection and other laws of other countries may not be as comprehensive as those in Customer’s country. Service Provider shall take reasonable steps to ensure that Customer’s privacy is protected. By using the Services Customer consents to Customer’s information being collected, used and transferred as set forth in the Privacy Policy.

• 6.2. Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.

• 6.3. Waiver. Any waiver of a right under these Terms of Service shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a Party from exercising that right in the future. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law.

• 6.4. Force Majeure. Service Provider shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). Service Provider shall use all reasonable efforts to notify Customer of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.

• 6.5. Assignment. Service Provider shall have the right to assign and/or transfer these Terms of Service and Service Provider’s rights and obligations hereunder to any Third Party after notifying Customer as provided for herein. Customer agrees and acknowledges that Customer shall not assign or transfer its rights or sub-contract or delegate the performance of any of its obligations under these Terms of Service without Service Provider’s prior written consent in Service Provider’s sole and exclusive discretion.

• 6.6. Rights of Third Parties. These Terms do not give any right to any Third Party unless explicitly stated herein.

• 6.7. Relationship of the Parties. The Parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into Terms of any kind in the name of the other Party.

• 6.8. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

• 6.9. Notices. Except as explicitly stated otherwise, any notices shall be given by postal mail to the address first set forth above, as amended from time-to-time.

• 6.10. Publicity. Customer grants a perpetual and irrevocable license to Service Provider to reference Customer on public customer lists and to use Customer’s name and logo on the Service Provider’s Web site, in press releases, advertising material and other promotional material. Service Provider may, subject to Customer’s written approval also publish a case study outlining the success of the Project, provided that it does not disclose any confidential information.

• 6.11. Affiliate Programs and Affiliations. When you click on links to various merchants on this site and make a purchase, this can result in this site earning a commission. Affiliate programs and affiliations include, but are not limited to, the eBay Partner Network and AliExpress Portals Program.

• 6.12. Entire Agreement. This Agreement represents the complete and exclusive statement of the Agreement between the Parties as to the provision of the Services. No other Agreements, covenants, representations or warranties, express or implied, oral or written, have been made by the Parties concerning this Agreement.