Webstore agreement.

Prodigy shall provide to Customer the specific services described in the Explanation of Services attached hereto as Schedule C and selected by Customer in the Order Form set forth in Schedule B (the “Services”). Prodigy shall provide the Services in accordance with the terms and subject to the conditions set forth in this Agreement.

Ecommerce. At your election, Prodigy will (a) design, host, and operate a custom web store on a platform hosted and administered by Prodigy (a “Custom Store”) through which you offer and sell Goods, or (b) provide fulfillment services for a WooCommerce or Shopify web store that you own, host, operate, and maintain, whether built by you or built for you by Prodigy under the Build & Connect plan (a “Third Party Store”). “Goods” means the goods Prodigy produces for you and any other goods you deliver to Prodigy for storage and fulfillment under this Agreement. In each case, you are the seller of the Goods to your buyers, and Prodigy produces (where applicable), stores, and fulfills the Goods and administers any Custom Store on your behalf.

Fulfillment.

Customer Support. Prodigy provides customer support only to Customer, and not to Customer’s customers or end buyers.

You must create a Customer account with Prodigy, through which you can contact Prodigy, manage Services, and receive customer support. In addition, you may create individual user accounts at your discretion. You shall be responsible for keeping all passwords and access credentials associated with such accounts confidential, and you shall promptly notify Prodigy about any unauthorized access to passwords or access credentials associated with your Customer account or any individual user account.

You are responsible and liable for all uses of the Services, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you will be responsible for all actions taken through your Customer account or any individual user accounts, whether authorized by Customer or not.

You may not use the Services for unlawful, fraudulent, or obscene activity. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be implemented by Prodigy from time to time.

You acknowledge and agree that any contract of sale through your Custom Store or Third Party Store, as applicable, is directly between you and the buyer, and that Prodigy is not a party to any such contract.

For the Services performed hereunder, Customer shall pay to Prodigy the fees set forth in the Fee Schedule attached hereto as Schedule A and in the Order Form (Schedule B), including recurring monthly fees, setup fees, and per-order fulfillment and other variable fees (collectively, “Fees”). Prodigy will deliver monthly invoices for all Fees due hereunder, and Customer shall pay all Fees pursuant to the terms set forth in the Order Form (Schedule B) or otherwise agreed upon by the Parties in writing. Prodigy may update the Fees and the Fee Schedule in accordance with Section 11.

Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Prodigy’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

Except for invoiced payments that you have successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. You shall also reimburse Prodigy for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Prodigy does not waive by the exercise of any rights hereunder), we shall be entitled to suspend the provision of any Services if you fail to pay any undisputed Fees when due hereunder and such failure continues for thirty (30) days following written notice thereof.

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Prodigy in the course of performing the Services (collectively, the “Deliverables”) shall be owned exclusively by Prodigy, subject to Section 4.2.

All Intellectual Property Rights in and to the Customer’s Confidential Information and copyrights, trademarks, and trade names (“Customer IP”) shall remain the exclusive property of Customer and its licensors. You hereby grant Prodigy a license to use all Customer IP free of charge and on a non-exclusive, worldwide, royalty-free basis throughout the Term, solely to the extent necessary to enable Prodigy to provide the Services and to fulfill its obligations hereunder.

For the avoidance of doubt, all Custom Stores, including all design elements and underlying code thereof, are the property of Prodigy; provided however that any Customer Domain, Customer IP, and any Third Party Store (including one built for you by Prodigy under the Build & Connect plan, which becomes your property upon launch and payment of the applicable setup fee) are the property of Customer, subject to Sections 1.1.3, 4.5, and 4.6.

Customer represents and warrants that it owns or otherwise holds all rights, licenses, and permissions necessary to provide the Customer IP to Prodigy and to authorize Prodigy’s use of the Customer IP as contemplated by this Agreement, and that Prodigy’s use of the Customer IP in accordance with this Agreement will not infringe, misappropriate, or otherwise violate the Intellectual Property Rights or other rights of any third party.

Notwithstanding Section 4.1, Customer owns its Customer IP and its data, including its logos, content, product information, customer and end-buyer information, and order and transaction data (collectively, “Customer Data”). Prodigy owns its platform, software, and templates, and the Custom Stores as described above, and Customer receives no rights in Prodigy’s source code. On request following termination, Prodigy will provide Customer a commercially usable export of its Customer Data.

Customer has a non-exclusive, perpetual, royalty-free license to use any Deliverables created specifically for Customer (such as custom designs incorporating Customer IP) for its business purposes, including after termination of this Agreement, provided all undisputed Fees related to that work have been paid. Prodigy may continue to use underlying templates, techniques, and design elements that do not include Customer IP.

From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) non-public, proprietary, and confidential information of Disclosing Party, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 5; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.

The Receiving Party shall (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. For purposes of this Section 5.2 only, Receiving Party’s Group shall mean the Receiving Party’s employees, officers, directors, managers, agents, independent contractors, service providers, attorneys, accountants, and financial advisors.

If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirement to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.

Data Protection. To the extent Prodigy processes personal information on Customer’s behalf in connection with the Services, Prodigy acts as Customer’s service provider or processor and will process such personal information only to provide the Services and in accordance with Customer’s reasonable written instructions and applicable data protection laws, including the Utah Consumer Privacy Act to the extent applicable. Customer is responsible for providing all notices to, and obtaining all consents from, individuals as required by applicable law for the collection and processing of personal information through the Services. Each party will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect personal information in its possession or control. If required by applicable law, the Parties will negotiate in good faith and execute a data processing addendum.

This Agreement shall commence as of the Effective Date and shall continue on a month-to-month basis until terminated pursuant to this Section 6 (the “Term”). There is no minimum term, minimum commitment, or minimum purchase requirement under this Agreement.

Either party may terminate this Agreement for any reason or for no reason by providing thirty (30) days’ written notice to the other Party. No early termination fee or penalty applies to termination under this Agreement, and neither party will owe the other any further amounts as a result of such termination other than Fees accrued and unpaid as of the effective date of termination.

Either party may terminate the Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

Upon termination of the Agreement, any licenses granted herein (other than the license granted in Section 4.6, which survives) shall be terminated immediately, you shall cease all use of the Services, and all Fees accrued and unpaid as of the effective date of termination shall be immediately due and payable. For the avoidance of doubt, no early termination fee, penalty, or unaccrued or future Fees will be charged as a result of termination, though Customer remains responsible for Fees for Services actually rendered, including any applicable store close-out and shipping Fees set forth in Schedule A. We will ship, at your expense, all Goods warehoused or stored on your behalf to the location specified by you; provided, however, that if you fail to provide shipping instructions or collect any such Goods within thirty (30) days of the termination of the Agreement, Prodigy may, in its sole discretion, sell or dispose of any such Goods. Any provision of this Agreement that, in order to give proper effect to its intent, should survive the termination of this Agreement will survive such termination.

The details of the method and manner for performance of the Services by Prodigy shall be under our control, and Customer is interested only in the results thereof. Prodigy is for all purposes hereunder an independent contractor, and in no event will Prodigy be considered an agent or employee of Customer or any of its subsidiaries or affiliates for any purpose.

Prodigy warrants that it shall perform the Services in a timely and professional manner in accordance with generally recognized industry standards for similar services. PRODIGY (a) MAKES NO WARRANTIES EXCEPT FOR THAT SET OUT ABOVE; AND (b) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Our sole and exclusive liability and your sole and exclusive remedy for breach of the limited warranty set out in this Section 8 shall be re-performance of the affected Services.

IN NO EVENT SHALL PRODIGY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT PRODIGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL PRODIGY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PRODIGY PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Customer is responsible for ensuring that its Customer IP, artwork, products, product specifications, and advertising are lawful and do not infringe or violate the rights of any third party, and Customer is responsible for its sales, promotions, and other dealings with its buyers. Prodigy is responsible for performing the Services with reasonable care and for its own acts and omissions, including any defect Prodigy introduces in producing or decorating the Goods. If a third-party claim arises from a matter within a party’s area of responsibility described in this Section, that party will be responsible for that claim, subject, in the case of Prodigy, to the limitations set forth in Section 9.

We may modify or discontinue the Services, in whole or in part. We will provide at least thirty (30) days’ notice of any material discontinuation of the Services or any change in Fees, except where a change is required by law or by security needs or results from a change by a third-party platform. Any Fee increase will not apply retroactively or to orders already accepted, and you may terminate this Agreement before a Fee increase takes effect.

Each of the parties hereto shall use commercially reasonable efforts to, from time to time at the request of the other party, without any additional consideration, furnish the other party such further information, execute and deliver such additional documents, instruments, and conveyances, and take such other actions and do such other things as may be reasonably necessary or appropriate to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby.

Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by email (with confirmation of transmission), or by recognized overnight courier service, and addressed to the other party at the addresses set forth in this Agreement (or to such other address that the receiving party may designate from time to time in accordance with this section). Notices to Customer may also be sent to [Customer Notice Email]. Notices to Prodigy may also be sent to legal@prodigypromos.com.

This Agreement and all matters arising out of or relating to this Agreement shall be governed by, and construed in accordance with, the laws of the State of Utah, including its statutes of limitations, without giving effect to any conflict of laws provisions thereof. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts, in each case located in Salt Lake City, Utah. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; AND (C) WAIVES ANY RIGHT TO TRIAL BY JURY.

This Agreement, together with any documents referenced herein, contains the entire understanding of Prodigy and Customer with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. In the event of a conflict among the documents that make up the Agreement, the terms of this Master Service Agreement control, except that (a) the Order Form (Schedule B) controls as to any commercial terms it expressly addresses (such as the selected Services, pricing, and payment terms), and (b) Schedule A controls as to the amount of Fees. The Explanation of Services (Schedule C) is incorporated by reference and describes the Services; the terms of this Master Service Agreement control over it in the event of a conflict.

Subject to Section 11, Prodigy and Customer may not amend this Agreement except by written instrument signed by both parties. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right.

The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise; provided that the parties intend that the remedy set out in Section 8 is Customer’s exclusive remedy for Prodigy’s breach of the limited warranty set out in Section 8.

Neither party may directly or indirectly assign, transfer, or delegate any or all of its rights or obligations under this Agreement, voluntarily or involuntarily, including by change of control, merger (whether or not such party is the surviving entity), operation of law, or any other manner, without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section 12.7 shall be null and void. Notwithstanding the foregoing, (a) Prodigy may, without Customer’s consent, subcontract the performance of any Services, and (b) either party may, upon written notice to the other party and without the other party’s consent, assign this Agreement in its entirety to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity.

This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Except for Prodigy and Customer, their successors and permitted assigns, there are no third-party beneficiaries under this Agreement.

Prodigy shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Prodigy including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.

Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which is deemed an original and all of which together constitute one and the same instrument. The Parties agree that this Agreement may be executed and delivered by electronic signature and through electronic signature services (including Zoho Sign), and that any such electronic signature is valid and binding and has the same force and effect as a manual signature. Delivery of an executed counterpart of this Agreement by electronic transmission (including in PDF form) is as effective as delivery of a manually executed counterpart.