Referral Program - Terms and Conditions (Last Updated: July 18, 2024)

• APPLICABILITY. The Referral Program Terms and Conditions set forth herein (the "Referral Program Terms and Conditions"), together with participation terms set forth in the applicable Referral Program Agreement (the "Participation Terms," together with the Referral Program Terms and Conditions, this "Agreement") set forth the rights and obligations of Global Sticks Express, LLC, a Delaware limited liability company, or any of its parent, subsidiaries, or affiliates (collectively, "Ship & Play") and the entity set forth in the applicable Referral Program Agreement ("Referral Partner") with respect to the referral and co-branding services further described in the Participation Terms (the "Services"). Ship & Play and Referral Partner may each be referred to herein as a "Party" and collectively as the "Parties" to this Agreement.
• RIGHTS; OBLIGATIONS. During the Term, as defined below, Referral Partner shall be a non-exclusive referral partner with respect to the marketing and referring of Ship & Play' shipping logistic services (the "Shipments") to customers of Referral Partner (the "Customers") with each of Ship & Play and Referral Partner having such rights and obligations as more particularly set forth in the Participation Terms of the applicable Referral Program Agreement.
• SHIP & PLAY SHIPPING SERVICES. As between Ship & Play and the Customers, the Shipments shall be governed by the terms of service set forth at https://www.shipplay.com/terms (the "Shipment Terms"). The Shipment Terms may be modified from time to time without notice. The applicable Shipment Terms shall be those posted on the above listed website at the time of Shipment. Referral Partner acknowledges that Ship & Play utilizes third-party shipping companies to fulfill the Shipments.
• INTELLECTUAL PROPERTY. Each Party (as "Licensor") hereby grants to the other Party (as "Licensee") a limited, revocable, non-exclusive, non-transferable, worldwide license to use Licensee's trademarks, tradenames, or other indicia of source, whether or not capable of registration (collectively, "Intellectual Property") solely to the extent necessary to fulfill the Licensee's respective obligations under this Agreement. Licensor hereby reserves all rights not expressly granted to Licensee under this Agreement. Licensee acknowledges and agrees that, as between the Parties: (a) Licensor owns and will retain all right, title, and interest in and to its Intellectual Property; (b) all use by Licensee of Licensor's Intellectual Property under this Agreement, and all goodwill accruing therefrom, will inure solely to the benefit of Licensor and will not create in Licensee, nor will Licensee represent that it has, any right, title, or interest in or to Licensor's Intellectual Property other than the limited license expressly set forth herein. Licensee shall strictly comply with all standards and other directions concerning the use of Licensor's Intellectual Property as may be provided by Licensor from time to time. Licensee shall not alter Licensor's Intellectual Property in any manner. Licensee shall ensure that Intellectual Property is marked with or otherwise displays proper trademark or other proprietary notice symbols as may be specified by Licensor. Licensee shall not make any use of any Intellectual Property that is disparaging or derogatory toward Licensor, or otherwise take or cause to be taken any action that could adversely affect the goodwill associated with Licensor's Intellectual Property or reputation. Upon expiration or termination of this Agreement for any reason: (x) all licenses granted hereunder will automatically terminate; and (y) Licensee shall immediately cease all use of Licensor's Intellectual Property.
• RELATIONSHIP. This Agreement shall not constitute or create a partnership, joint venture, or agency relationship between Ship & Play and Referral Partner. Each Party shall pay any and all employment taxes of its employees, and agents, and shall indemnify and hold the other Party and its respective directors, officers, employees, members, and agents harmless from any and all losses or liabilities, therefore.
• EXCUSABLE DELAYS. Neither party shall be liable for any default or delay in the performance of its obligations if and to the extent such default or delay is caused by any of the following: an act of God, fire, casualty, flood, war, terrorist act, failure of public utilities, injunction or any act, exercise, labor or civic unrest, assertion or requirement of any governmental authority, epidemic or pandemic, or destruction of production facilities, or other circumstances beyond the reasonable control of the affected party (each, a "Force Majeure Event"). The Party who has been so affected shall immediately give written notice to the other Party and shall do everything reasonably practicable to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended for the period of such Force Majeure Event. If the period of non-performance exceeds sixty days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may give written notice to terminate this Agreement.
• LIMITED LIABILITY.  IN NO EVENT SHALL SHIP & PLAY BE LIABLE TO REFERRAL PARTNER OR TO ANY THIRD PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, OR OTHER THEORY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES, EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL FOR THEIR ESSENTIAL PURPOSE AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES OR THE FOREGOING DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. IN NO EVENT SHALL SHIP & PLAY TOTAL LIABILITY HEREUNDER BE IN EXCESS OF THE LESSER OF: (I) THE ACTUAL AMOUNT OF INSURANCE PROCEEDS RECEIVED BY SHIP & PLAY IN CONNECTION WITH A CLAIM GIVING RISE TO LIABILITY HEREUNDER, OR (II) THE ACTUAL AMOUNT OF CONSIDERATION PAID BY SHIP & PLAY TO REFERRAL PARTNER PURSUANT TO THE APPLICABLE PARTICIPATION TERMS DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
• INDEMNIFICATION. Each Party (as the "Indemnifying Party") shall indemnify, defend, and hold harmless the other Party and such Party's owners, affiliates, subsidiaries, officers, directors, employees, representatives, and agents (collectively, the "Indemnified Party") from and against any and all liabilities, losses, damages, claims, costs, or expenses (including reasonable attorneys' fees and costs) incurred by the Indemnified Party arising from or pertaining to gross negligence, Intellectual Property infringement, intentional or willful misconduct, violation of applicable law, any breach of any representation or warranty by the Indemnifying Party hereunder, or material breach of this Agreement on the part of the Indemnifying Party, its officers, directors, agents, servants, or employees while performing the Services.
• TERMINATION. The term of this Agreement shall commence on the date of the applicable Referral Partner Agreement and shall continue for a period of two years, unless earlier terminated in accordance with the terms of this Agreement (the "Term"). Either Party shall have the right to terminate the applicable Referral Partner Agreement upon 30 days prior written notice of termination to the other Party.
• REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to the other as follows: (a) that it has full and absolute legal right, power, and authority to enter into and deliver this Agreement and to perform the transactions contemplated with respect to it hereby; (b) this Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with the terms hereof; and (c) neither execution and delivery of this Agreement, nor performance by it of the transactions contemplated hereby, nor compliance by it with any provision hereof, will conflict with or violate or constitute a material default under or a material breach of: (i) any provision of any contract, indenture, or other instrument or obligation, whether written or oral, to which it is a party or by which it or any of its properties or assets are bound, (ii) any provision of applicable law the violation of which would adversely affect in any material respect the transactions contemplated hereby, or (iv) any judgment, decree, writ, injunction, or order of any court or administrative or governmental authority or any arbitration board to which it is a party or by which it or any of its properties or assets are bound; that it has the right to grant a license to any Intellectual Property licensed herein.
• CHOICE OF LAW & VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its choice of law principles. Any action brought by either party to enforce this Agreement shall be brought in a court of competent jurisdiction in Palm Beach County, Florida. If a Party commences any action against the other Party with respect to enforcement or interpretation of this Agreement, then the prevailing Party shall be entitled to recover its expenses in bringing or defending the action, including attorneys' fees and costs.
• INSURANCE. During the Term, each Party shall, at its own expense, maintain and carry insurance in full force and effect that includes, but is not limited to, commercial general liability with financially sound and reputable insurers.
• MISCELLANEOUS. Each Party shall at all times perform their obligations and duties in compliance with all laws, rules, and regulations. This Agreement (which for the avoidance of doubt includes the Referral Program Terms and Conditions, the Participation Terms included in the applicable Referral Program Agreement) sets forth the entire agreement and understanding of the Parties relating to the subject matter contained herein and supersedes any and all prior agreements and/or understandings, whether written or oral, between the Parties relating to the subject matter contained herein. No failure or delay on the part of any Party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to any party at law or in equity or otherwise. If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. All provisions expressly stated to survive termination of this Agreement (as well as all provisions which by their nature are clearly intended to survive termination) shall survive termination. This Agreement may be executed in one or more counterparts, each of which shall be regarded as an original and all of which shall constitute but one and the same instrument. The Parties shall cooperate with each other to execute and deliver (or cause to be executed and delivered) such instruments and documents and take such actions as may be required, or as a party may reasonably deem desirable, to effectuate the provisions and intent of this Agreement. Neither Party may assign this Agreement without the other Party's prior written approval. Notwithstanding the foregoing, either Party may assign this Agreement upon written notice to the other Party in connection with the sale of all or substantially all of its assets or equity.