Terms and Conditions

Terms of Service

LAST UPDATED January 1, 2024

1. TERMS & CONDITIONS

1.1 Provision of Services. AZKE BRANDS CORPORATION will provide its subscription service through the AZKE BRANDS CORPORATION Customer Experience & Reputation Marketing platform (the “Subscription Service”), and any professional services in relation to the implementation of the Subscription Service (the “Professional Services”; the Subscription Services and Professional Services may hereinafter be generally referred to as the “Services”) in accordance with these Terms and any terms and conditions provided for in a customer agreement, reseller agreement or order form for the Subscription Service (all such documents maybe be referred to as an “Order Form”) or a statement of work for the delivery of Professional Services (“Statement of Work”). Client understands, acknowledges and agrees that onboarding and implementation of the Services may take up to 2 hours over a 4 week period of time. Client’s reasonable and timely participation in the onboarding process is a vital component of delivering the Services and any delays in this process caused by Client will not affect the duration of any agreement and will not provide a basis for non-payment or termination.

1.2 Third Party Sites. To the extent that Client requests or otherwise cause the Subscription Service to be integrated with, or make use of data from, other website or services (e.g., Facebook, Google+ and Twitter) (“Third Party Sites”), Client agrees that AZKE BRANDS CORPORATION does not have control over the terms of use, privacy policies, operation, intellectual property rights, performance, service levels or content of any Third Party Sites; and AZKE BRANDS CORPORATION disclaims all responsibility and liability for any use of Third Party Sites. The Services incorporate or make the use of certain third party software (“Third Party Software”), which is licensed subject to the terms and conditions of the third party licensing such Third Party Software. Nothing in these Terms limits Client's rights under, or grants Client rights that supersede, the terms and conditions of any applicable license for such Third Party Software. Such Third PartySoftware includes but is not limited to the following software andservices and by use of the Services, Client agrees to be bound by theterms of said Third Party Software: Googlehttps://policies.google.com/terms?hl=en-US, Facebookhttps://www.facebook.com/legal/terms, Twitterhttps://www.twitter.com/tos, Youtubehttps://www.youtube.com/t/terms, Twiliohttps://www.twilio.com/legal/tos, LinkedInhttps://www.linkedin.com/legal/user-agreement.UsingThird Parties For Reviews. Client understands that in order for itscustomers, end users or others to leave a review about its product orservices on Google, Facebook, Twitter and similar third party sites, itmay be required to have an active, registered account on the relevantthird party platform.

1.3 Subscription Service Content. During Client's use of the Subscription Service, Client may receive datagenerated by the Subscription Service. Client may display such generateddata on Client's website but may not modify the data or otherwise useit for any other purposes, including without limitation analyticspurposes, without AZKE BRANDS CORPORATION’s prior express written approval. For purposesof clarification, data generated by the Subscription Service mayinclude data and content that is owned or licensed by a third party, andClient's use of such third party data and content is limited further bysuch third party’s applicable license terms and web site terms of use.AZKE BRANDS CORPORATION hereby disclaims responsibility and/or liability in full forClient’s use of any such third party data and content under these Terms.

1.4 Obligations With Respect to Third Party Sites. When using the Services,Client agrees to adhere to the Terms of Service of all major review sites. This includes but not limited to Google, Facebook, Yelp, and other review sites. Review gating: Client's use of the AZKE BRANDS CORPORATION platform cannot implement any form of review gating. Review gating is a process where companies send a message to customers asking if their experience was positive or negative. Those who had a positive experience are directed to leave an online review. Those who had a negative experience are typically sent to a form to leave comments that are not made public.When soliciting reviews using the AZKE BRANDS CORPORATION platform, Client must provide all recipients the same options to provide feedback, regardless of their sentiment. This applies to review requests sent via standard review templates, custom email templates, and surveys.Sites prohibiting solicitation of reviews: Client's use of the AZKE BRANDS CORPORATION platform will fully comply with sites such as Yelp that prohibit review solicitation, and Client will not misuse the AZKE BRANDS CORPORATION platform to bypass review sites’ policies.Failure to comply with 3rd Party Review site policies: If Client attempts to circumvent the Terms of Service of 3rd party review sites, AZKE BRANDS CORPORATION will notify Client and allow Client 30 days to take corrective action. Should Client fail to comply within the 30-day notice period, Client's account will be suspended from AZKE BRANDS CORPORATION.

1.5 TCPA and 10DLC Compliance.a.TCPA: To the extent required by law and as applicable to the parties,the parties shall comply with the Telephone Consumer Protection Act, 47U.S.C. § 227 (the “TCPA”). Client will be solely responsible forcomplying with any messaging consent obligations under the TCPA and TSRin the course of accessing and using the AZKE BRANDS CORPORATION Services. Client isresponsible for obtaining explicit consent(s) from any and all thirdparties (including Client's customers) to send and receive SMS and/oremails using the AZKE BRANDS CORPORATION Services. AZKE BRANDS CORPORATION shall have the same obligation to obtain third party consent for all parties from which itis directly obtaining their phone number(s).b. 10DLC: Youunderstand that if you are using certain SMS-related Services, you areresponsible for complying with A2P 10DLC, including but not limited toregistration and obtaining customer opt in. AZKE BRANDS CORPORATION reserves the rightto pass carrier 10DLC fees on to you which you agree AZKE BRANDS CORPORATION may collectfrom you using your authorized payment method. Client authorizesAZKE BRANDS CORPORATION to act as its legal representative in the 10DLC registrationprocess when such representation is necessary to provide or enhance theServices.You understand and agree that in order to use anytexting or text-based products or features in or through the Services,you must maintain your A2P 10DLC registration by paying the one timeregistration fee and ongoing text (or, “campaign”) fees for the durationof your use of any such Services. If you are entering into an onlineor self-serve contract for a small business, the registration fee andongoing text fees may be combined in one line item on your contractshown as “Carrier Texting Fees”.Each party is liable for, andshall indemnify, defend and hold harmless the other party from andagainst any and all damages, liabilities, judgments, fees, fines, costsand expenses (including reasonable attorneys’ fees) incurred by thenon-breaching party arising from any claims, demands or legal actionsmade against it resulting from Client's breach of this Section 1.5.

1.6 Account Protection. In the event that Client become aware that the security of Client's login information has been compromised or breached, Client must immediately deactivate such account or change the account’slogin credentials. Additionally, Client shall promptly deactivate theaccount or change the login credentials for any individual (e.g., formeremployee) that no longer is authorized by Client to access theSubscription Service.

1.7 Fair Use. AZKE BRANDS CORPORATION’s priority to its customers is to keep the Services available and running at optimal speed, which requires each customer to use the Services fairly andreasonably so as to not affect the access or use by other customers. TheServices include broad access to a variety of resources such asbandwidth, API requests, and storage which are not unlimited (unlessexpressly stated as such in a Customer Agreement, Order Form or otheragreement) or the overuse of which would affect the stability of theAZKE BRANDS CORPORATION platform, including but not limited to the Services, which iswhy we have this fair use clause (“Fair Use Policy” or “FUP”). Fair usewill be considered the processing of 3 times the average number ofrequests or processed transactions per Location (as that term is definedin a Customer Agreement, Order Form or other written agreement) forother AZKE BRANDS CORPORATION customers in the same or similar industry. If AZKE BRANDS CORPORATION determines Client's use of the Services is in violation of its Fair UsePolicy, in its sole reasonable discretion, it may take unilateral actionregarding Client's use of the Services including, but not limited to,limiting the frequency of access to the Services or limiting the numberof processed requests through the Services in order to bring usage inline with this FUP. AZKE BRANDS CORPORATION also reserves the right to invoice Clientfor use of the Services in violation of the FUP. Client understands,acknowledge and agree that AZKE BRANDS CORPORATION will have no liability to Client orany of Client's users for enforcing this FUP and enforcement will notaffect Client's obligations under these terms which includes the paymentof fees for the Services.

1.8 Client’s Restrictions on Use of Services.

Client agrees not to do any of the following while using the Site, Services or AZKE BRANDS CORPORATION Content: Access, post, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, vulgar or offensive; (v) constitutes child pornography or child erotica; (vi) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any other person; or (viii) promotes illegal or harmful activities or substances (including, but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances).Use, display, mirror, frame or utilize framing techniques to enclose the Site or Services, or any individual element or materials within the Site or Services, AZKE BRANDS CORPORATION’s name, any AZKE BRANDS CORPORATION trademark, logo or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without AZKE BRANDS CORPORATION’s express written consent;Access, tamper with, or use non-public areas of the Site or Services, AZKE BRANDS CORPORATION’s computer systems, or the technical delivery systems of AZKE BRANDS CORPORATION’s providers;Attempt to probe, scan, or test the vulnerability of any AZKE BRANDS CORPORATION system or network or breach any security or authentication measures;Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by AZKE BRANDS CORPORATION or any of AZKE BRANDS CORPORATION’s providers or any other third party (including another user) to protect the Site, Services or AZKE BRANDS CORPORATION Content;Attempt to access or search the Site, Services or AZKE BRANDS CORPORATION Content or download AZKE BRANDS CORPORATION Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by AZKE BRANDS CORPORATION or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera);Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;Use or access the Services for the purpose of, or resulting in, the posting, publication, distribution or transmission of defamatory material or content;Send any emails or text communications for purposes of marketing or promoting non-federally legalized products or services or if such communications are barred by relevant industry associations. For example, Client will not send text messages through the Services if Client is in the cannabis industry, the firearms business or any other illegal or association-prohibited industry;Use any meta tags or other hidden text or metadata utilizing an AZKE BRANDS CORPORATION trademark, logo URL or product name without AZKE BRANDS CORPORATION’s express written consent;Use the Site, Services or AZKE BRANDS CORPORATION Content for the purpose of bringing an intellectual property infringement claim against AZKE BRANDS CORPORATION or for the purpose of creating a product or service competitive with the Services;Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or AZKE BRANDS CORPORATION Content to send altered, deceptive or false source- identifying information;Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or AZKE BRANDS CORPORATION Content;Interfere with, or attempt to interfere with, the access of any user, host or network connected to the Site or Services, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;Impersonate or misrepresent Client's affiliation with any person or entity;Violate any applicable law or regulation;Develop or build products which perform substantially similar to the Services for the Term of this Agreement and the 12 month period thereafter; orEncourage or enable any other individual to do any of the foregoing.AZKE BRANDS CORPORATIONwill have the right to investigate and prosecute violations of any ofthe above, including intellectual property rights infringement and Siteand Services security issues, to the fullest extent of the law. AZKE BRANDS CORPORATIONmay involve and cooperate with law enforcement authorities inprosecuting users who violate these Terms. Client acknowledges thatAZKE BRANDS CORPORATION has no obligation to monitor Client's access to or use of theSite, Services or AZKE BRANDS CORPORATION Content or to review or edit any User Content,but has the right to do so for the purpose of operating the Site andServices, to ensure Client's compliance with these Terms, or to complywith applicable law or the order or requirement of a court,administrative agency or other governmental body. AZKE BRANDS CORPORATION reserves theright, at any time and without prior notice, to remove or disable accessto any AZKE BRANDS CORPORATION Content and any User Content, that AZKE BRANDS CORPORATION, in its solediscretion, considers to be in violation of these Terms or otherwiseharmful to the Site or Services.

2. FEES AND PAYMENT2.1 Fees. Client shall pay AZKE BRANDS CORPORATION the undisputed fees in the currency andas of the date set forth in each Order Form or Statement of Work.Client’s payments under these Terms are due net thirty (30) days fromClient’s receipt of AZKE BRANDS CORPORATION’s invoice unless agreed otherwise by theParties in the applicable Order Form or Statement of Work. All fees areexclusive of applicable sales, excise, value-added or use taxes. Exceptfor income taxes levied on AZKE BRANDS CORPORATION’s net income, Client shall pay orreimburse AZKE BRANDS CORPORATION for all national, federal, provincial, state, local orother taxes and assessments of any jurisdiction, which are legallypayable by Client for charges set, services performed or to beperformed, or payments made or to be made hereunder. Client shall not beentitled to deduct the amount of any such taxes, duties or assessmentsfrom payments made to AZKE BRANDS CORPORATION under these Terms. This provision shallsurvive the termination of these Terms and shall be applicableregardless of the time frame in which the requirement of the payment ofsuch taxes or assessments is asserted (e.g. a deficiency assessment by ataxing authority as a result of an audit after the termination of theseTerms). Client will notify AZKE BRANDS CORPORATION of any invoice dispute within thirty(30) days of receipt of invoice, at which time the parties will engagein good faith efforts to resolve the dispute.

2.2 Late Payments.Client's failure to pay undisputed fees when due constitutes a materialbreach of these Terms. If payment is not made within thirty (30) days ofwhen it is due, AZKE BRANDS CORPORATION may, in its sole discretion, choose to do anyor all of the following: (i) charge Client a late fee on the unpaidbalance at the lesser of one and one-half percent (1.5%) per month orthe maximum lawful rate permitted by applicable law, rounded to the nexthighest whole month and compounded monthly; and/or (ii) suspendClient's access to the Subscription Service and/or the delivery of theProfessional Services. AZKE BRANDS CORPORATION’s suspension or resumption of theSubscription Service or Professional Services does not limit or preventAZKE BRANDS CORPORATION from pursuing all other remedies available.

2.3 Auto Renew. If you have entered into an agreement for Services with AZKE BRANDS CORPORATION,the agreement will auto renew in compliance with applicable law asfurther set forth herein. Unless otherwise noted in the Order Form orStatement of Work, any agreement for Services will auto renew for thesame period of time as the initial term of the agreement unless writtennotice of non-renewal is provided to AZKE BRANDS CORPORATION at least 90 days prior tothe date of renewal.

3. PROPRIETARY RIGHTS3.1 Ownership; License; Retained Rights. AZKE BRANDS CORPORATION owns all right, title, andinterest in and to the Subscription Service, including, withoutlimitation, all modifications, improvements, enhancements, integrations,upgrades, derivative works, and feedback related thereto and allintellectual property rights therein (“Rights”), and any and all Rightsdeveloped as part of the delivery and receipt of the ProfessionalServices. AZKE BRANDS CORPORATION grants Client a limited, revocable, royalty-free,non-exclusive, non-transferable license to use the Subscription Service,and any deliverables developed pursuant to the delivery of ProfessionalServices hereunder in relation to Client's use of the Service, for theterm of the applicable Order Form or Statement of Work. All rights notexpressly granted to Client hereunder are reserved by AZKE BRANDS CORPORATION.

3.2 Restrictions. Unless otherwise permitted in writing by AZKE BRANDS CORPORATION, Clientmay not, and may not permit any third party to, (i) copy, reproduce,modify, translate, prepare derivative works of, de-compile, reverseengineer, disassemble or otherwise attempt to derive source code fromthe Subscription Service; (ii) use, evaluate or view the SubscriptionService for the purpose of designing or creating a product or servicecompetitive to AZKE BRANDS CORPORATION’s products or services; and/or (iii) resell oruse the Subscription Service in a service bureau.

3.3 Data Collection, Ownership, and Use.3.3.1 Client Data. 

During the term of this Agreement or any Order Form orStatement of Work, Client grants AZKE BRANDS CORPORATION a limited, non-exclusive,royalty-free, revocable, world-wide license to use and disclose, asnecessary to provide the Subscription Service and Professional Services,all information submitted by Client and Client's end users inconnection with Client's use of the Subscription Service (e.g., PersonalData, submitted content, product information included in feeds,transaction detail information such as unit prices and cart values, andsurvey data) (“Client Data”). Client owns all Client Data. Nothingcontained herein shall be construed as granting AZKE BRANDS CORPORATION ownership in anyClient Data. Client hereby give AZKE BRANDS CORPORATION a non-revocable, worldwide,royalty right to use aggregated or anonymized Client Data for internalevaluation purposes only; AZKE BRANDS CORPORATION will never market or sell Client Datato any third party. Client understands, acknowledges and agreesthat AZKE BRANDS CORPORATION may only be able to access its Client Data through managedservices (or, “Managed Services”) in order to provide theServices. In order for AZKE BRANDS CORPORATION to perform the Managed Services, Clientagrees to provide AZKE BRANDS CORPORATION with login credentials to its CRM.Furthermore, the Managed Services process involves a member of theAZKE BRANDS CORPORATION team logging into the CRM, downloading a report that willinclude Client Data and then uploading said Client Data to the AZKE BRANDS CORPORATIONplatform. If being utilized, the Managed Services will be performedweekly as a default although Client can request that the timing beadjusted to as short a time as 48 hours upon reasonable request. Allpersonnel are subject to in-depth, annual privacy and data securitytraining and assessments.

3.3.2 AZKE BRANDS CORPORATION Data. All data generated,stored or collected by AZKE BRANDS CORPORATION technologies which is not Client Data is owned by AZKE BRANDS CORPORATION (“AZKE BRANDS CORPORATION Data”). AZKE BRANDS CORPORATION Data includes, but is notlimited to, all review data posted to a AZKE BRANDS CORPORATION microsite. Client shallhave a limited, perpetual license to use such AZKE BRANDS CORPORATION Data generated bythe Subscription Service, subject to Section 

3.3.3 of these Terms.3.3.3 Third Party Data. Data generated by the Subscription Service mayinclude data and content that is owned or licensed by a third party, andClient's use of such third party data and content is limited by suchthird party’s applicable license terms and web site terms of use.AZKE BRANDS CORPORATION hereby disclaims responsibility and/or liability in full forClient’s use of any such third party data and content under this Terms.Such third party data and content will be promptly destroyed, and Clientshall otherwise no longer have access to such third party data andcontent, upon termination of these Terms or termination of theapplicable Order Form or Statement of Work.

3.4 Privacy Policy; Personal Data; Security.The collection, use and storage of Personal Data(as defined in the DPA) through AZKE BRANDS CORPORATION’s website is governed byAZKE BRANDS CORPORATION’s privacy policy located at Privacy Policy, (“Privacy Policy”).If Client's use of the Subscription Service requires AZKE BRANDS CORPORATION to processPersonal Data, AZKE BRANDS CORPORATION will process Personal Data subject to AZKE BRANDS CORPORATION’s Data Processing Addendum located athttps://cdn2.AZKE BRANDS CORPORATION.com/version2/pages/terms/AZKE BRANDS CORPORATIONDPA.pdf(“DPA”). The Privacy Policy and DPA, are incorporated into these Terms in their entirety.Duringthe term of this Agreement, AZKE BRANDS CORPORATION shall maintain a security programmaterially in accordance with industry standards that is designed to:(i) ensure the security of Client Data; (ii) protect against threats orhazards to the security or integrity of Client Data; and (iii) preventunauthorized access to Client Data. If either party believes that therehas been a security breach involving Client Data, such party mustpromptly notify the other party, unless legally prohibited from doingso. Additionally, each party will reasonably assist the other party inmitigating any potential damage arising from any such security breach.As soon as reasonably practicable after any such security breach,AZKE BRANDS CORPORATION shall conduct a root cause analysis and, upon request, willshare the results of its analysis and its remediation plan with Client.

3.5 Confidential Information.“Confidential Information” means anyinformation disclosed by either party to the other party, eitherdirectly or indirectly, in writing, orally, or by inspection of tangibleobjects (i) that the disclosing party identifies as confidential orproprietary; or (ii) that reasonably appears to be confidential orproprietary because of legends or other markings, the circumstances ofdisclosure, or the nature of the information itself (for avoidance ofdoubt, neither party shall be required to identify information asconfidential in order to avail itself of the protections set forth inthis Section 3.5). The parties acknowledge that the Subscription Serviceand Professional Services, the terms of these Terms and any Order Formor Statement of Work, and any other proprietary or confidentialinformation provided to the other party constitute valuable proprietaryinformation and trade secrets of AZKE BRANDS CORPORATION and the Client, respectfully.Each party agrees to preserve the confidential nature of the otherparty’s Confidential Information by retaining and using the ConfidentialInformation in trust and confidence, solely for its use as permittedand in connection with these Terms, and by using the same degree ofprotection that such party uses to protect similar proprietary andconfidential information, but in no event less than reasonable care.Each party will have the right to seek an injunction to prevent anybreach or continued breach of this section. The receiving party agreesto promptly report any breaches of this section to the disclosing party.Notwithstanding the foregoing, Confidential Information does notinclude any information which (i) is now, or becomes, through no act orfailure to act on the part of the receiving party, generally known oravailable to the public without breach of these Terms by the receivingparty; (ii) was independently developed, or otherwise acquired, by thereceiving party without restriction as to use or disclosure beforereceiving such information from the disclosing party, as shown by thereceiving party's files and records immediately prior to the time ofdisclosure; or (iii) is obtained by the receiving party withoutrestriction as to use or disclosure by a third party authorized to makesuch disclosure.

4. WARRANTY; LIMITATIONS OF LIABILITY; INDEMNITY4.1 AZKE BRANDS CORPORATION Warranty. AZKE BRANDS CORPORATION represents and warrants that (i) it has allright, title, and interest necessary to provide the Subscription Serviceand Professional Services to Client under the terms set forth in theseTerms and each Order Form or Statement of Work; (ii) the SubscriptionService will perform materially in accordance with the terms of thisAgreement; (iii) the functionality of the Subscription Service will notbe materially decreased during the term of this Agreement; (iv) AZKE BRANDS CORPORATIONshall use industry standard virus protection designed to prevent anyviruses, time bombs or other disabling code from the SubscriptionService; and (v) it shall comply with all laws applicable to it in itsprovision of the Subscription Service. Additionally, AZKE BRANDS CORPORATION shallperform the Professional Services in a professional and workmanlikemanner in accordance with applicable industry standards.

4.2 Client's Warranty. Client represents and warrant that (i) Client haveany and all consents and authorizations as may be necessary for theClient to receive the Subscription Service and/or Professional Services;(ii) each of the sites where the Subscription Service is deployedcontains a privacy policy that discloses the usage of third-partytechnology and the data collection and usage resulting from theSubscription Service (it being understood that this clause will not bedeemed to require those privacy policies to expressly identify AZKE BRANDS CORPORATIONor any Subscription Service, unless otherwise required by law, rule orregulation) and complies with all applicable privacy laws, rules andregulations; (iii) Client's websites upon which the Subscription Serviceis deployed do not contain any material which is defamatory, promotesillegal activity, or contains hate speech; and (iv) Client have legallyobtained necessary ownership or license rights to any Client Data,including Personal Data, and that Client have any waivers and/or opt-inagreements in place with authorized users and Client customers that arerequired by applicable law in relation to the communications to be sentto such users and customers by AZKE BRANDS CORPORATION and the Subscription Serviceunder this Terms.

4.3 Warranty Disclaimer. EXCEPT AS SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING. AZKE BRANDS CORPORATION DOES NOT WARRANT, OR OTHERWISE PROMISE, THAT THE USE OF ITS SERVICES WILL INCREASE CLIENT’S RANKING POSITIONS ON GOOGLE OR ANY OTHER SEARCH ENGINE.

4.4 Limitations of Liability. EXCEPT AS SET FORTH BELOW, THE LIMITATIONS OF LIABILITY IN SECTIONS 4.4.1 AND4.4.2 WILL APPLY IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANYLIMITED REMEDY, AND ALSO APPLY REGARDLESS OF THE LEGAL OR EQUITABLETHEORY ON WHICH DAMAGES ARE SOUGHT. IN NO EVENT WILL THE LIMITATIONSAPPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THE TERMS. BOTH PARTIESSHALL USE REASONABLE EFFORTS TO MITIGATE THE DAMAGES FOR WHICH THE OTHERPARTY IS RESPONSIBLE. HOWEVER, IN NO EVENT WILL THE LIMITATIONS APPLYTO THE EXTENT PROHIBITED BY APPLICABLE LAW.

4.4.1 No Special Damages. EXCEPT FOR CLAIMS ARISING OUT OF GROSS NEGLIGENCE OR WILLFULMISCONDUCT, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDINGWITHOUT LIMITATION LOST PROFITS, LOSS OF GOODWILL, BUSINESSINTERRUPTION, OR LOSS OF INFORMATION, OF ANY PARTY, INCLUDING THIRDPARTIES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITYOF THE FOREGOING.

4.4.2 Liability Cap. EXCEPT FOR CLAIMS ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, INDEMNITY OBLIGATIONS OF THESE TERMS WITH RESPECT TO CLIENT'S OBLIGATION TO PAY UNDISPUTED FEES UNDER THESE TERMS, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THIS Terms EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY EITHER PARTY UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.If Client is located in Australia, pursuant to section 64A of theAustralian Consumer Law (as set out in Schedule 2 to the Competition andConsumer Act 2010 (Cth) (“CCA”)), if and to the extent that Client haveacquired the Service as a ‘consumer’ (as defined in section 3 of theAustralian Consumer Law), AZKE BRANDS CORPORATION’s liability to Client under each ofsections 60, 61 and 62 of the Australian Consumer Law is limited toeither supplying the Services again or payment of the cost of having theServices supplied again. Nothing in these Terms excludes, restricts ormodifies or purports to exclude, restrict or modify any guarantee thatapplies pursuant to the Australian Consumer Law or any other provisionof the CCA which cannot be lawfully excluded, restricted or modified.

4.5 Client's Indemnity. Client shall indemnify, defend, and hold harmless AZKE BRANDS CORPORATION, its officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding,or any settlement Terms, from a third party’s claim that arises out of athird party’s claim that Client's website on which the SubscriptionService is provided or any application Client develop infringes anyintellectual property rights.

4.6 AZKE BRANDS CORPORATION Indemnity. AZKE BRANDS CORPORATION shall indemnify, defend, and hold harmless Client, Client's officers, agents, and employees against all losses, damages, liabilities, costs, andexpenses (including but not limited to reasonable attorneys’ fees),resulting from any judgment or proceeding, or any settlement Terms, froma third party’s claim that the Subscription Service, as provided byAZKE BRANDS CORPORATION to Client within the scope of this Terms, infringe anyintellectual property rights. AZKE BRANDS CORPORATION has no obligation to indemnifyClient for a claim of infringement to the extent it arises from: (i)infringing matter supplied or developed solely by Client; (ii)unauthorized modifications or uses of the Subscription Service; or (iii)Client's acts or omissions not in accordance with the terms of thisAgreement. If Client's use of the Subscription Service is enjoined or islikely to be enjoined due to a third party claim of infringement forwhich AZKE BRANDS CORPORATION is required to indemnify Client under these Terms thenAZKE BRANDS CORPORATION may, at its sole cost and expense and within its solediscretion, do one of the following: (x) procure for Client the right tocontinue using the Subscription Service; (y) replace or modify theenjoined Subscription Service to make it non-infringing but functionallyequivalent; or (z) terminate the enjoined Subscription Service andreturn any fees paid for enjoined Subscription Service not yet rendered.

4.6.1The indemnification obligations set forth in this Section 4.6 areAZKE BRANDS CORPORATION’s sole and exclusive obligations with respect to anyinfringement claims.

4.7 Indemnification Conditions. The indemnification obligations contained in these Terms are conditionedupon: (a) prompt notice by the indemnitee to the indemnitor of anyclaim, action or demand for which indemnity is claimed (failure to meetthis condition does not exempt the indemnitor of its indemnificationobligation, except to the extent that failure has materially prejudicedthe indemnitor’s ability to defend the claim); (b) sole control of thedefense and settlement by the indemnitor; and (c) reasonable cooperationby the indemnitee in the defense as the indemnitor may request. Theindemnitee has the right to participate in the defense against theindemnified claims with counsel of its choice and at its own expense butmay not confess judgment, admit liability or take any other actionsprejudicial to the defense. Further, the indemnitee may not settle anindemnified claim unless the indemnitor has declined to defend.

4.8 Proportional Liability. Each indemnitor’s liability to pay or reimburseany indemnified claim is limited to the extent of the indemnitor’sproportional contribution. Neither party has any liability to the extentthat any losses in conjunction with indemnified claims are attributableto acts or omissions of the other party or its indemnities.

5. TERM AND TERMINATION5.1 Term. These Terms commences on the Effective Date of the first Order Form and shall remain effective as long as any Order Form referring to this Terms remains in effect. Except as specifically set forth to the contrary in these Terms, all payment obligations under any and all Order Forms or Statements of Work are non-cancelable and all payments madeare non-refundable.

5.2 Termination for Breach. In addition to any other remedies it may have, if either party breaches any of thematerial terms or conditions of these Terms and fails to cure suchbreach within thirty (30) days after written notice from thenon-breaching party, the non-breaching party may terminate these Termsor a specific Order Form or Statement of Work upon written notice. Upontermination of these Terms or a Order Form or Statement of Work due toClient's material breach, Client will pay for the Subscription Serviceand Professional Services that have been rendered through thetermination date plus all other charges that would have been due underthe remaining term of each affected Order Form or Statement of Work.Upon termination of these Terms or an Order Form or Statement of Workdue solely to a breach by AZKE BRANDS CORPORATION, AZKE BRANDS CORPORATION shall refund a pro rataportion of any fees paid for services not yet rendered as of the date ofTermination.

6. INNOVATION FEEAt the time of any auto renewal, AZKE BRANDS CORPORATION will apply a 5% fee on allrecurring Services fees to cover product innovations, enhanced servicesand inflation (“Innovation Fee“). The Innovation Fee shall applyautomatically upon any auto renewal of this Agreement and apply to allServices covered by this Agreement at the time of the auto renewal. TheInnovation Fee will be applied to the Services fees including anyadditional fees incurred during the term. The Innovation Fee will beincluded in the annual invoice to Client due according to the paymentterms set forth above or as other specifically stated in the Order Formor Statement of Work.

7. AZKE BRANDS CORPORATION PAYMENTSStripe Terms of Service: Client agrees to be bound by Stripe Terms of Service located at:https://stripe.com/ssa. The Stripe Terms of Service may be modified periodically by Stripe in its sole discretion. No PCI DSS Liability: Client understands, acknowledges and agrees that allpayment transactions processed through AZKE BRANDS CORPORATION Payments are donethrough a third party payment processor which is Level 1 PCI DSScompliant. Since AZKE BRANDS CORPORATION does not store any payment card information, itis not subject to PCI DSS and, as a result, AZKE BRANDS CORPORATION shall be releasedfrom any and all liability or claims related to or arising out of PCIDSS.No Refunds of Payment Fees; Client Liability to Its Customersfor Refunds: AZKE BRANDS CORPORATION will not refund any Payment Fees upon a refund,chargeback or other reversal of a transaction. The amount of the refundtransaction will be sent to Client's customer directly but Client shallremain liable to AZKE BRANDS CORPORATION for the Payment Fees which AZKE BRANDS CORPORATION will deduct from Client's payment account for the original transaction. Clientagrees to indemnify AZKE BRANDS CORPORATION against any claims related to or arising outof any claims by Client's customer related to the amount of any refund,chargeback or similar issue. In the event Client's payment account doesnot contain the funds required to process the refund or cover thePayment Fees, Client gives AZKE BRANDS CORPORATION the right to debit Client's bankaccount directly to cover the shortfall.Right to Cancel or AdjustPricing: AZKE BRANDS CORPORATION reserves the right to terminate Client's access to anduse of Payments if AZKE BRANDS CORPORATION, in its sole discretion, determines thatClient pose too great of a risk to continue using the Payments service.In addition, AZKE BRANDS CORPORATION reserves the right to modify the Payment Fees, uponwritten notice (for which an email will suffice), in its solediscretion, if AZKE BRANDS CORPORATION determines that different Payment Fees arerequired to cover the risk posed by Client's use of the Paymentsservice.Hardware/Terminals: Client may be provided with hardware(ie, a “terminal”) to assist with point of sale purchases using thePayments service. Client will at all times be responsible formaintaining the terminal and will, upon termination of the Paymentsservice or upon reasonable request from AZKE BRANDS CORPORATION, return all terminals ingood condition and good working order.Disputes: For disputedtransactions (including allegedly fraudulent transactions), Client isresponsible for providing evidence of the relevant transaction(s),through the tools provided by AZKE BRANDS CORPORATION. AZKE BRANDS CORPORATION is not responsible for providing the evidence, nor is it or will it be liable to Client forlost disputes or any and all losses or damages arising out of or related to a lost dispute.

8. MISCELLANEOUS8.1 Independent Contractors. In performing under these Terms, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint ventures, or agents of one another in any respect.

8.2 Subcontractors. If AZKE BRANDS CORPORATION subcontracts any portion of the Professional Services to a third party, AZKE BRANDS CORPORATION (i) shall require such subcontractor to comply with the material terms and conditions of these Terms and (ii) remains responsible for any acts or omissions of its subcontractors as if such acts or omissions were performed byAZKE BRANDS CORPORATION.

8.3 Export. Client may not export or re-export any software included within the Subscription Service, either directly or indirectly, without receiving AZKE BRANDS CORPORATION’s written consent and any required license from the applicable governmental agency.

8.4 Force Majeure. Neither party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including withoutlimitation acts of God, civil commotion, Third Party Sites, strikes, terrorism, failure of third party networks or the public Internet, power outages, industry-wide labor disputes or governmental demands or restrictions.

8.5 Assignment. Either party may assign these Terms in connection with (i) a merger where the contracting entity does not survive such merger, or (ii) the sale of all or substantially all of the contracting entity’s assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under the Terms without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection is void.

8.6 Travel & Expense Reimbursement. Each applicable Order Form or Statement of Work will set forth any reasonable and necessary travel expenses that will need to be incurred in performance of the Professional Services under these Terms.

8.7 Notice and Delivery.Except as otherwise provided herein, all notices, statements and other documents, and all approvals or consents that any party is required or desires to give to any other party will be given in writing and will be served in person, by express mail, by certified mail, by overnightdelivery, by facsimile, or by electronic mail at the respective addresses set forth below, or at such other addresses as may be designated by such party. If to AZKE BRANDS CORPORATION: AZKE BRANDS CORPORATION, Inc.

AZKE BRANDS CORPORATION 

If to Client: To the contact information stated in the Order Form or Statement of Work.Notices to Client will be addressed to the contact designated in writing by Client to AZKE BRANDS CORPORATION for Client's relevant account, and in the case of billing-related notices,to the relevant contact designated by Client.

8.8 Compliance with Laws and Regulations. Each party shall in good faith perform its obligations hereunder in a manner that complies with all applicable laws, regulations, ordinances and codes, including identifying and procuring required permits, certificates, approvals and inspections. If either party receives any notice, summons, or complaint regarding its non-compliance with any such laws, regulations, ordinances, or codes, itshall promptly notify the other party of such matter

8.9 Governing Law and Jurisdiction. These Terms and all acts and transactions pursuant hereto and the rights and obligations of theparties hereto shall be governed by the laws of the State of California, without giving effect of principles of conflicts of law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction, will not apply to the Terms. Any disputes, actions, claims or causes of action arising out of or in connection with the Terms shall be subject to the exclusive jurisdiction of the state or federal courts in Texas.

8.10 Entire Understanding; Order of Precedence. These Terms represent the parties' entire understanding relating to the Subscription Services and Professional Services, and supersedes any prior or contemporaneous, conflicting or additional, communications. Any conflict between these Terms, any addendum or attachment and any Order Form or Statement of Work shall be resolved in favor of the Order Form or Statement of Work followed by the addendum or attachment over the Terms. These Terms or an Order Form may be executed by electronic signature. Except as otherwise provided in an Order Form or Statement of Work or other agreement of the parties, these Terms may only be amended by a duly executed agreement between the AZKE BRANDS CORPORATION and Client. If any provision of the Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

8.11 Severability; Waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

8.12 Survival. All sections of this Terms that by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

Appendix A: Additional Terms for Clients or Partners Contracting with AZKE BRANDS CORPORATION

A1.SMS Services Requirements. Client understands and accepts that in order to use SMS-based Services, it will be required to register a mobile phone number on its behalf. In order to obtain a registered number, AZKE BRANDS CORPORATION will require a copy of Client’s business registration and a utility bill or equivalent that is in the name of the business.

A2. Use of Collections Agencies. Client acknowledges that if a payment issue cannot be resolved through good faith efforts, AZKE BRANDS CORPORATION may submit a Client’s overdue account to an external collections agency.

Questions, Complaints and Contacts.Please visit our website