Effective March 1, 2011

  1. Scope
      1. QLess, Inc. (the “Company”) shall provide the Customer listed below with those services (“Services”) set forth in a service order or orders executed (“Service Order(s)”) by the Company and Customer. Unless otherwise agreed in writing, any conflict between the terms of a Service Order and these terms and conditions shall be resolved in favor of the Service Order.
      2. Customer shall not resell the Services or nor enter into any relationship whereby a third party can purchase or use the Services through Customer.
  2. Term. The term for the provision of Services by the Company shall be as set forth in the applicable Service Order. Termination of an individual Service Order shall not terminate any other Service Order.
  3. Termination
    1. Either party may terminate a Service Order if the other materially breaches the terms of such Service Order, and does not cure such breach within thirty days of notice. In addition to any other remedies, the Company may suspend the provision of Services under all Service Orders upon twenty-four hours notice in the event that payment has not been received within ten business days of the due date for such payment.
    2. Except for a termination of a Service Order by Customer (i) based upon a breach of such Service Order or these terms and conditions by the Company, or (ii) pursuant to Section 3(c) or 6(c) below, in the event a Service Order is terminated prior to the end of its term, Customer shall pay the Company a termination charge equal to 100% of the fees that would have become due for the remainder of such term, in addition to all unpaid fees outstanding as of the date of termination. Customer agrees that such termination charge is a reasonable measure of the damages incurred by the Company and is not a penalty.
    3. The Company may modify components of, or the method of providing, its Services, upon thirty days notice, or a shorter period if such change is due to compliance with applicable laws or regulations. In such case, the terms and conditions and applicable Service Order(s) shall be modified solely to the extent necessary to reflect such modification(s); provided, that if such modification results in a material decrease in the functionality of the Services, then Customer may terminate the applicable Service Order if such material decrease is not remedied within thirty days notice from Customer.
  4. Payment. All payments shall be made in U.S. dollars. Payment for Services is due within thirty days after the date of invoice. Late payments hereunder will accrue interest at a rate of one and one-half percent (1-1/2%) per month, cumulated daily, or the highest rate allowed by applicable law, whichever is lower. The Company reserves the right to have Customer complete a credit application to determine Customer’s creditworthiness.
  5. Confidentiality; Data
    1. This Section 5 shall not apply at such times as the Company and Customer are parties to a non-disclosure agreement that governs the disclosure of confidential information by either party to the other.
    2. Each party acknowledges that it will have access to certain confidential information of the other party, including the term, fees and commissions and other terms and conditions of this Agreement (“Confidential Information”), and . agrees that it will not use in any way, for its own account or the account of any third party, such Confidential Information, nor disclose to any third party (except to that party’s attorneys, accountants and other advisors as necessary), any of the other party’s Confidential Information. Information will not be deemed Confidential Information if it (a) is or becomes known to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; (c) is independently developed by the receiving party without reference to the Confidential Information; or (d) is required to be disclosed by law, a court, governmental agency or any applicable rules and regulations.
    3. The Company may, with the prior written consent of Customer, refer to Customer by name and trademark in the Company’s marketing materials and web site, and in press releases, customer references and case studies, with a description of the relationship.
    4. Use of the data supplied by the end users of the Services shall be governed by the applicable privacy policy under which an end user supplies the data.
  6. Indemnification
    1. The Company shall indemnify and hold harmless Customer from and against any and all claims and suits, (including reasonable attorney’s fees and costs) brought against Customer alleging that a Service infringes or misappropriates any intellectual property rights in a country in which such Service is provided by the Company to Customer.
    2. If a Service is held to infringe and injunction against its use finally adjudicated, the Company may, at its expense and in its sole discretion, either (i) obtain the right for Customer to continue using such Service, (ii) modify or replace in its entirety such Service so that it is no longer infringing; or (iii) (z) refund to User an amount equal to the pro rated value for use of the Software and Services.
    3. If the Company is unable to provide one of the foregoing remedies, Customer may terminate its use of the infringing Service without payment of the termination fee provided in Section 3(b).
    4. The Company shall have no liability for any infringement or misappropriation of intellectual property rights resulting from Customer’s supplied content or trademarks, improper use of the Service or not in accordance with applicable documentation, or from products or services not supplied by the Company.
    5. Customer shall indemnify and hold harmless the Company from and against any and all claims and suits, (including attorney’s fees and costs) brought against the Company resulting from Customers (i) alleging that Customer-supplied content or trademarks infringe or misappropriate any intellectual property right, or (b) resulting from improper use of the Service or not in accordance with applicable documentation.
    6. When a claim is made against a party who is thus entitled to be indemnified, such party shall promptly notify the indemnifying party, and allow the indemnifying party to assume sole control of the defense of such claim or suit; provided, that the indemnifying party shall not enter into a settlement imposing liability on the indemnified party without the indemnified party’s prior written consent.
  7. Warranty Disclaimer; Limitation of Liability. Except as specifically provided herein, Customer’s use of the services is “as-is,” and the Company does not make, and hereby disclaims, any and all other express and implied warranties, including, but not limited to, warranties of merchantability or fitness for a particular purpose, and any warranties arising from a course of dealing, usage, or trade practice. except as provided in a service order, the company does not warrant that the use of the services will be uninterrupted, error-free or completely secure. Except with respect to the indemnification provisions of Section 6, in no event shall either party be liable for any special, incidental or consequential damages, including but not limited to loss of profits or income, whether or not such party had knowledge, that such damages might be incurred.
  8. Miscellaneous
    1. Notices under these terms and conditions and under any Service Order shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by registered or certified mail (return receipt requested) or sent via facsimile (with acknowledgment of complete transmission) to the parties at the addresses set forth above such other address for a party as shall be specified by like notice.
    2. Neither party may assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other party; provided, that such consent shall not be required if the Company assigns its rights and obligations to an assignee that acquires all or substantially all of the Company’s stock or assets. Any attempted assignment in violation of the foregoing shall be void. The rights and obligations of the parties shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and permitted assigns.
    3. These terms and conditions and all Service Orders shall be governed by the English language and by the laws of the state of California. The parties consent to the jurisdiction of the courts of the county of Los Angeles, California.
    4. All prior agreements and understandings are hereby superseded by these terms and conditions and the applicable Service Orders. If any provision is held unenforceable, these terms and conditions and Service Order(s) shall be deemed to be modified so as to render the remainder of the parties’ agreement enforceable. Section 3-8 of these terms and conditions shall survive termination. These terms and conditions and Service Orders may only be amended in writing by both parties. No failure or delay of either party to exercise or enforce is rights shall operate as a waiver. Time is of the essence in the performance of obligations. If either party’s performance is delayed to a force majeure event, such party’s performance shall be excused during the appropriate period due to such event. Section 3-8 of these terms and conditions shall survive termination.
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