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Letter of Agreement Terms and Conditions

These Letter of Agreement Terms and Conditions (“Terms”) are entered into by Sustainable Life Media, Inc. (“SLM”), dba Sustainable Brands (“SB”), and the counterparty identified in the applicable Letter of Agreement (“LOA”) referencing and incorporating these Terms (“Client”). The effective date (“Effective Date”) of these Terms shall be the date the last party executes the applicable LOA.

RECITALS

WHEREAS, Client wishes to obtain from SLM, and SLM wishes to provide to Client, the products and services specified in the applicable LOA (the “Offerings”); and

WHEREAS, these Terms set forth the terms and conditions under which SLM will provide the Offerings to Client and under which Client will use the Offerings;

NOW THEREFORE, in consideration of the premises, mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.1. “Confidential Information” means information disclosed pursuant to these Terms whether in written, oral, electronic, website-based or other form, including, but not limited to, trade secrets, software, strategies, techniques, drawings, specifications, technical or know-how data, research and development, ideas, inventions, patent disclosures, product roadmap and testing information (including, but not limited to, any beta testing products and any results of any penetration testing on any products and/or services), marketing information, financial information, pricing information, customer/vendor related data, security policies and procedures, services and support information and other business information including, but not limited to, information that has been made available to Discloser by third parties that Discloser is obligated to keep confidential.

1.2. “Discloser” means the party disclosing Confidential Information to the Recipient.

1.3. “Intellectual Property Rights” means all existing and future worldwide copyrights (including, without limitation, rights in audiovisual works and moral rights), trademarks, service marks, trade names, patents, patent applications (including, without limitation, all reissues, divisions, renewals, extensions, continuations and continuations-in-part), inventions (whether patentable or not), trade secrets, know-how, Confidential Information and any other proprietary information whether arising under the laws of the United States, or any other country, state or jurisdiction.

1.4. “Marks” mean all trademarks, service marks, trade names, logos or other words or symbols identifying or associated with either (i) the Client’s products and services or the business of Client or (ii) SLM’s Offerings or the business of SLM, as applicable.

1.5. “Recipient” means the party in receipt of Confidential Information of the Discloser.

2.1 Client hereby engages SLM to provide the Offerings specified in the applicable LOA and SLM hereby accepts such engagement. In consideration of Client’s payment of the applicable Fees and performance of its obligations herein, SLM shall provide Client with the Offerings specified in the applicable LOA.

3.1 Client shall pay SLM the fees specified in each LOA (“Fees”). Unless otherwise specified in the LOA, payment for all Fees will be invoiced upon mutual execution of the LOA and all Fees are due in advance, payable in U.S. dollars upon Client’s receipt of invoice. For event sponsorships, all invoices must be paid in full five (5) business days prior to the relevant event start date, and Client will not be allowed to set up on site at the event if full payment has not been received.  For digital programs, all invoices must be paid in full prior to SLM’s commencement of the digital benefits.

3.2 Unless otherwise stated on an LOA, Client may cancel an LOA with written notice to SLM provided that notice of such cancellation is received by SLM within thirty (30) days of the Effective Date; in such case, prepaid fees will be reimbursed to Client less (i) a twenty percent (20%) cancellation fee and (ii) the value of any Offerings (including, but not limited to, services and advertising) delivered by SLM to Client as of the notice of cancellation date. Notwithstanding the foregoing, for event sponsorship event Offerings only, (x) event sponsorships are not eligible for either cancellation or refund after thirty (30) days from the Effective Date and/or within thirty (30) days of the relevant event start date; and (y) if the LOA is executed less than thirty (30) days prior to the relevant event start date, the LOA is not eligible for either cancellation or refund.

3.3 Fees are exclusive of all taxes other than taxes on SLM’s net income, and Client shall pay (and SLM shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with these Terms or the applicable LOA, including, without limitation, any federal, provincial, state and local sales, use, goods and services, value-added, withholding, and personal property taxes on any payments due in connection with the Offerings provided hereunder and under such LOA.

3.4 In the event that a payment by Client is not received within two (2) business days of its due date, SLM shall be entitled to interest on the amount owing at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is less, from the due date of payment until the date of actual receipt by SLM and, if necessary, Client shall bear all reasonably attorneys’ fees actually incurred by SLM in collecting any such overdue amounts. SLM may, without limiting its other rights and remedies, suspend access to, availability or use of the Offerings until all Fees are paid in full.

4.1 Client Rights.  Client owns and retains all right, title, and interest (including, without limitation, the Intellectual Property Rights and Confidential Information) in and to Client’s products and services. Except as provided in these Terms, Client does not convey to SLM any rights in Client’s products or services, express or implied, or ownership in Client’s products or services or any Intellectual Property Rights thereto.  Any rights in the Client’s products or services not expressly granted to SLM under these Terms are reserved by Client, its licensors, and suppliers. Any and all third-party participation or pass through of rights is prohibited except where authorized in writing by SLM.

4.2 SLM Rights.  SLM owns and retains all right, title, and interest (including, without limitation, the Intellectual Property Rights and Confidential Information) in and to the SLM Offerings, and any enhancements of, modifications to, or derivative works based upon, the SLM Offerings.  Except as provided in these Terms, SLM does not convey to Client any rights in the SLM Offerings, express or implied, or ownership in the SLM Offerings or any Intellectual Property Rights thereto. Any rights in the SLM Offerings not expressly granted to Client under these Terms are reserved by SLM.

4.3 No Rights in Existing Intellectual Property; No Joint Development.  For purposes of clarity, in no event will either party be granted any Intellectual Property Rights in the other party’s products or services in existence immediately prior to the Effective Date of these Terms except for those rights expressly granted by these Terms.  The parties further agree that these Terms do not contemplate any joint development activities.  In the event the parties desire to pursue joint development activities, such activities, including the associated intellectual property rights of any resulting creations, shall be handled in a separate written agreement.

5.1 License. Subject to these Terms, each party (“Mark Owner”) hereby grants the other party (“Mark Licensee”), a limited, revocable, worldwide, non-exclusive, nontransferable, royalty-free license to use its Marks, solely during the Term as necessary to perform the obligations in the applicable LOA and as authorized herein. By way of illustration, inclusion of Client’s company name and logo and/or likeness in editorial material, promotional materials, press releases, ads and/or other related media will commence upon execution of the applicable LOA, and Client’s name and logo may be referenced in pre- and post-event related media and materials. Any use of the other party’s Mark(s) (i) shall be subject to the Mark Owner’s right to review and approve or reject in advance each proposed use of Mark Owner’s Mark(s), (ii) shall indicate that such Marks are the property of the Mark Owner, (iii) shall bear a legal notice in such form as may be prescribed by law and (iv) shall conform with any other trademark usage guidelines, polices, or requirements provided by the Mark Owner.  Any rights not expressly licensed herein are reserved by the Mark Owner, and all use by the Mark Licensee of the Mark Owner’s Mark(s), (including all goodwill associated therewith), shall be on behalf of and accrue to the benefit of the Mark Owner. Nothing contained herein shall be deemed to grant either party any right, title or interest in or to the other’s Marks other than the limited license rights granted herein. As between the parties, Client acknowledges that SLM is the sole and exclusive owner of SLM’s Marks, and SLM acknowledges that Client is the sole and exclusive owner of the Client Marks. Both Client and SLM reserve the right to change their Marks at any time.  Upon termination of these Terms, Mark Licensee shall immediately cease to use all Mark Owner Marks except as permitted pursuant to another agreement between the parties.

5.2 Restrictions to Trademark Use.  Client and SLM agree not to: (i) take any action that (A) would conflict with or be contrary to the other party’s rights and interest in its Marks or (B) would be deemed by the other party as damaging to the goodwill associated with its Marks; (ii) modify or remove any Marks incorporated in, marked on, or affixed materials provided; (iii) challenge the other party’s ownership or rights to use its Marks; or (iv) adopt, use or attempt to register, whether as a corporate name, domain name, trademark, service mark or other indication of origin, (A) the other party’s Marks, (B) any mark that is confusingly similar to or will dilute the distinctive nature of the other party’s Marks or (C) combination marks with the other party’s Marks.  The parties agree to provide the other with samples of all materials that use the Marks prior to their public use or display for quality control purposes. Client and SLM shall have the right to audit the use of the Marks for such purposes and to require modification of such use.  Client or SLM may terminate, in whole or in part, the license to use the Marks upon written notice to the other regardless of whether the Terms remain in effect.

6.1 Protection Period and Return of Information. Unless the parties otherwise agree in writing, a Recipient’s duty to protect Confidential Information expires two (2) years from the date of disclosure.  Notwithstanding anything to the contrary herein, a Recipient’s duty to protect information constituting a trade secret shall never expire.  A Recipient, upon Discloser’s written request, will promptly return all Confidential Information received from the Discloser, together with all copies, or certify in writing that all such Confidential Information and copies thereof have been destroyed.

6.2 Permitted Use. A Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar information to protect the Confidential Information and to prevent (i) any use of Confidential Information not authorized in these Terms; (ii) dissemination of Confidential Information to any employee, contractor, and/or agent of Recipient without a need to know and who is not subject to legally binding obligations of confidentiality with respect to the Confidential Information that are no less restrictive than those imposed by these Terms; (iii) communication of Confidential Information to any third party; or (iv) publication of Confidential Information.

6.3 Markings. A Recipient will have a duty to protect Confidential Information (i) if it is marked or accompanied by documents clearly and conspicuously designating them as “confidential” or the equivalent; (ii) if it is identified by the Discloser as confidential before, during or promptly after the presentation or communication; or (iii) if it is of such a nature that a reasonable person would consider such information to be confidential.

6.4 Exclusions. These Terms impose no obligation upon a Recipient with respect to Confidential Information that (i) the Recipient can demonstrate was already in its possession before receipt from the Discloser; (ii) is or becomes publicly available through no fault of the Recipient; (iii) is rightfully received by the Recipient from a third party without a duty of confidentiality; (iv) is disclosed by the Discloser to a third party without a duty of confidentiality on the third party; (v) is independently developed by the Recipient without a breach of these Terms; or (vi) is disclosed by the Recipient with the Discloser’s prior written approval.  If a Recipient is required by a government body or court of law to disclose Confidential Information, the Recipient agrees to give the Discloser prompt advance notice and reasonable assistance so that Discloser may have a reasonable opportunity to object to the disclosure and seek a protective order or appropriate remedy.

6.5 Remedies.  Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party may be entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available at law or in equity.

6.6 Disclaimers.  Each Discloser warrants that it has the right to disclose its Confidential Information. No other warranties are made, and no responsibility or liability is or will be accepted by either party, as to the accuracy or completeness of the Confidential Information. All Confidential Information is provided “As Is”.

6.7 Feedback. Providing any suggestions, enhancement requests, recommendations, corrections, or other feedback to SLM (collectively, “feedback”) is strictly voluntary.  If Client provides any feedback to SLM, orally or in writing, Client hereby grants to SLM a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license to use and incorporate into the Offerings any feedback relating to the Offerings.

7.1 SLM will maintain the security, integrity, and privacy of information collected through the Offerings. SLM also will maintain appropriate administrative, technical, and physical safeguards for all information it collects.

7.2 SLM’s Privacy Policy is available at https://sustainablebrands.com/corporate/privacy and is incorporated into these Terms by this reference.  For purposes of these Terms only, in the Privacy Policy all references to “you” or “your” shall mean “Client”; all references to “us”, “we”, or “our” shall mean “SLM”; and all references to “Service” shall mean “Offerings”.  In the event of any conflict between these Terms and the Privacy Policy, these Terms shall prevail.

8.1 CLIENT ACKNOWLEDGES THAT THE OFFERINGS ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SLM DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, REGARDING THE OFFERINGS, RELATED DOCUMENTATION OR INFORMATION, AND OTHER MATERIALS AND OFFERINGS, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT AND THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. SLM DOES NOT WARRANT THAT THE OFFERINGS WILL MEET THE REQUIREMENTS OF CLIENT OR THAT THE OPERATION OF THE OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE FROM OTHER LIMITATIONS. SLM PROVIDES NO WARRANTY REGARDING ANY USE OF THE OFFERINGS NOT IN ACCORDANCE WITH THESE TERMS OR FOR PURPOSES NOT INTENDED BY SLM OR NOT SPECIFICALLY PERMITTED BY THESE TERMS. IN NO EVENT, SHALL SLM OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY PENALTIES, CLAIMS FOR LOST DATA, REVENUE, PROFITS, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR OFFERINGS OR BUSINESS OPPORTUNITIES, ARISING OUT OF THESE TERMS OR ANY ADDENDUM THERETO, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, EVEN IF SLM HAD BEEN ADVISED OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SLM’S MAXIMUM AND AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE AMOUNTS PAID BY CLIENT TO SLM HEREUNDER DURING THE PRECEDING 6 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

8.2 Client represents and warrants that the licensed Marks and SLM’s use thereof without alteration and otherwise strictly in accordance with the LOA and these Terms will not infringe, misappropriate, or otherwise violate any rights of any third party. Client shall indemnify and hold harmless SLM and its licensors, subsidiaries, and affiliates, and each of their respective officers, directors, employees, attorneys and agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any claim that the licensed Marks infringe the rights of, or have caused harm to, a third party.

8.3 SLM shall indemnify and hold Client and its licensors, subsidiaries and affiliates, and each of their respective officers, directors, employees, attorneys and agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any claim that any SLM modification, translation, or derivative works of the licensed Marks infringe the rights of, or have caused harm to, a third party.

9.1 Term.  These Terms are effective as of the Effective Date and will continue until expiration or termination of the applicable LOA (“Term”), unless otherwise terminated as provided herein. 

9.2 Termination.  Either party may terminate these Terms and the applicable LOA if the other party (i) breaches any material provision of these Terms and does not cure such breach (provided that such breach is capable of cure) within thirty (30) days after being provided with written notice thereof, (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days).  Termination is not an exclusive remedy and the exercise by either party of any remedy under these Terms will be without prejudice to any other remedies it may have under these Terms, by law, or otherwise.

9.3 Effects of Termination.  Upon expiration or termination of these Terms or the applicable LOA for any reason: (ii) all licensed rights granted in these Terms will immediately cease to exist; and (ii) a Recipient of Confidential Information must promptly discontinue all use of the Confidential Information, erase all copies of the Confidential Information from the party’s computers whether or not modified or merged into other materials, and return to the Discloser, or at Discloser’s request, destroy, all copies of the Confidential Information in Recipient’s possession or control and certify in writing to Discloser that Recipient has fully complied with these requirements.  

9.4 Survival.  Expiration or termination of these Terms shall not relieve the parties of any obligation accruing prior to such expiration or termination and shall not preclude either party from claiming any other damages, compensation, or relief that it may be entitled to upon such termination.

10.1 Non-Exclusive.  The rights granted to each party hereunder are non-exclusive and nothing under these Terms will prohibit a granting party from entering into any similar type of agreement with any other party.

10.2 Governing Law and Venue.  These Terms will be construed and governed by the laws of the State of California, without giving effect to its conflicts of law principles. The parties hereby submit to the personal jurisdiction of, and agree that any legal proceeding with respect to or arising under these Terms will be brought solely in, the state courts of the State of California for the county of San Francisco or the United States District Court for the Northern District of California, if such court has subject matter jurisdiction. Notwithstanding the foregoing, either party will at all times have the right to commence proceedings in any other court of its choice with the appropriate jurisdiction for interim injunctive relief. 

10.3 Attorneys’ Fees and Costs.  If any legal action or proceeding is commenced in connection with any dispute arising under, relating to or otherwise concerning these Terms, the prevailing party, as determined by the court, will be entitled to recover its attorneys’ and experts’ fees and all costs and necessary disbursements actually incurred in connection with such action or proceeding.

10.4 Assignment.  Neither party may assign or transfer, by operation of law or otherwise, any of its rights or obligations under these Terms to any third party without the other party’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.  Notwithstanding the foregoing, either party may assign its rights or obligations under these Terms to any successor to its business or assets to which these Terms relate, whether by merger, sale of assets, sale of stock, reorganization or otherwise without the other party’s consent.

10.5 Relationship Between the Parties. Client and SLM agree that this is a non-exclusive relationship and that the parties to these Terms are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.  References in these Terms to “partner” or “partnership” merely reference a spirit of cooperation between the parties and are not a reference to any legal form of partnership or any responsibility of one party for the obligations or liabilities of the other party.

10.6 Force Majeure.  Neither party will be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent such failure or delay is caused by any: (i) acts of God; (ii) epidemic, pandemic, flood, fire or explosion; (iii) war, terrorism, invasion, riot or other civil unrest; (iv) embargoes or blockades in effect on or after the Effective Date; (v) national or regional emergency; (vi) quarantines, lockdowns, strikes, labor stoppages or slowdowns or other industrial disturbances; (vii) passage of law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition; or (viii) national or regional shortage of adequate power or telecommunications or transportation facilities (each of the foregoing, a "Force Majeure"), in each case, provided that (A) such event is outside the reasonable control of the affected party; (B) the affected party provides prompt notice to the other party, stating the period of time the occurrence is expected to continue; and (C) the affected party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure.

10.7 Amendments; Waivers.  No supplement, modification, or amendment of these Terms will be binding, unless executed in writing by a duly authorized representative of each party to these Terms; provided, however, SLM may update these Terms from time to time by providing Client with at least thirty (30) days’ prior written notice of such changes. No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.

10.8 Severability.  If any provision of these Terms is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in force and effect.

10.9 Notices.  Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if: (a) personally delivered to the address in the applicable LOA, upon receipt; (b) sent by e-mail (if to SLM, to [email protected]; if to Client, to the e-mail address in the applicable LOA), on the date transmitted; or (c) sent by registered mail upon delivery and only if sent to the address in the applicable LOA.

10.10 Entire Agreement. These Terms, including the applicable LOA incorporating these Terms, constitutes the final agreement between the parties, and is the complete and exclusive expression of the parties’ agreement on the matters contained in these Terms.  All prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter contained into these Terms are expressly merged into and superseded by these Terms.  In entering these Terms, neither party has relied upon any statement, representation, warranty, or agreement of the other party except for those expressly contained in these Terms.  To the extent of any conflict or inconsistency between the provisions in the body of these Terms and any LOA, these Terms shall prevail unless expressly stated otherwise. No provision of any purchase order or any other business form employed by Client will supersede, contradict, vary or modify the terms and conditions of these Terms, and any such document issued by a party hereto relating to these Terms will be for administrative purposes only and have no legal effect.

10.11 Authority; Counterparts and Exchanges by Electronic File. Each party represents and warrants that the person executing the LOA incorporating these Terms is the authorized representative of each party, is legally competent to execute the LOA, and has the full right and authority from all necessary sources to enter into and fully perform the LOA and these Terms. The LOA may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.  The exchange of a fully executed LOA (in counterparts or otherwise) by an electronic .pdf file shall be sufficient to bind the parties to the terms and conditions of the LOA and these Terms.