Ephemeral
TERMS AND CONDITIONS FOR LICENSE AND PURCHASE AGREEMENT
TERMS AND CONDITIONS FOR LICENSE AND PURCHASE AGREEMENT
This License and Purchase Agreement, including the Order Form which by this reference is incorporated herein (this "Agreement"), is a binding agreement between Ephemeral Solutions Inc., a Delaware corporation having its principal place of business at 4 Oxford Road Milford, Suite B1, CT 06460 and the individual artist identified on the Order Form as the licensee and purchaser of the Ephemeral Ink ("Licensee").
EPHEMERAL PROVIDES THE EPHEMERAL INK SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON AND SUBMITTING YOUR ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS]. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, EPHEMERAL WILL NOT AND DOES NOT LICENSE THE EPHEMERAL INK TO LICENSEE AND YOU MUST NOT PURCHASE OR USE THE EPHEMERAL INK OR GUIDELINES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY EPHEMERAL INK THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COMPOSITION OF EPHEMERAL'S EPHEMERAL INK.
1. Definitions.
Capitalized terms have the meanings set out in this Section 1, or in the section in which they first appear in this Agreement.
“Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
"Customer" means an individual that may purchase or has purchased an Ephemeral Tattoo from the Licensee.
“Ephemeral Ink” means Ephemeral’s proprietary made-to-fade tattoo ink.
“Ephemeral Tattoo” means tattoos provided utilizing Ephemeral Ink.
“Guidelines” means written instructions and other specifications provided by Ephemeral, including without limitation, the Artist Manual provided by Ephemeral to Licensee in connection with the purchase of Ephemeral Ink.
“Losses” means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers.
"Premises" means a location compliant with all laws, rules, ordinances, and regulations applicable to the provision of tattoos to Customers and Licensee’s obligations under this Agreement.
2. Appointment.
2.1 Non-Exclusive Appointment. Ephemeral hereby appoints Licensee, and Licensee hereby accepts the appointment, to act as Ephemeral's non-exclusive licensee of the Ephemeral Ink solely to market and provide Ephemeral Tattoos to Customers at the Premises during the Term in accordance with the terms and conditions of this Agreement. Licensee shall not sell or offer to sell Ephemeral Tattoos outside the Premises.
3. Licensee Obligations.
3.1 Marketing and Sale of Ephemeral Ink. Licensee shall, subject to Ephemeral’s review and approval, at its expense and in accordance with the Marketing Plan (as defined below):
(a) advertise, market, promote, and sell the Ephemeral Tattoos in a manner that is consistent with the Guidelines and good business practice, using commercially reasonable efforts to maximize the sales volume and expand the sale of Ephemeral Tattoos to Customers;
(b) advertise, market, promote, and sell the Ephemeral Tattoos and conduct business in accordance with applicable law, and in a manner that reflects favorably at all times on the Ephemeral Ink, the Ephemeral Marks, the Ephemeral Tattoos and the good name, goodwill, and reputation of Ephemeral;
(c) have and maintain sufficient knowledge of the industry and the Ephemeral Ink and Ephemeral Tattoo standard protocols and features and differences between the Ephemeral Ink and competing ink;
(d) participate in Ephemeral-led marketing, advertising, promotion, and sales programs and events;
(e) use promotional and marketing materials provided or otherwise approved by Ephemeral without modification and only to market, advertise, promote, or sell the Ephemeral Ink, and not use any other promotional and marketing materials for the Ephemeral Ink without the prior written consent of Ephemeral; and
(f) comply with all directions and instructions from Ephemeral for the marketing, advertising, and promotion of the Ephemeral Ink, including Ephemeral sales and marketing policies.
3.2 Reporting, Records, and Inspection. Licensee shall, at its expense:
(a) report any and all complaints and adverse claims, including without limitation, complaints related to adverse reactions, injuries, and safety issues, made by Customers to Ephemeral (each, a “Complaint”) via electronic mail (hello@ephemeral.tattoo) to the address set forth in the Artist Manual within two (2) business days of becoming aware such Complaint, and provide copies of (i) the applicable Consent, (ii) contact information for the individual making the Complaint, and (iii) any other pertinent information, including but not limited to the date of the Ephemeral Tattoo, location of the Ephemeral Tattoo, lot number of the Ephemeral Ink and images; and
(b) maintain books, records, and accounts of all transactions relating to the Ephemeral Ink and activities covered by this Agreement during the Term and for five (5) years thereafter, including without limitation, detailed marketing, orders, and sales information related of the Ephemeral Ink and Ephemeral Tattoos, Customer information, including name and email address of the
3.3 Customers to whom Ephemeral Ink is sold with corresponding lot number, Consents (as defined below), and any other information relating to the performance of its obligations under this Agreement; and, on Ephemeral's request, promptly provide such information to Ephemeral or allow Ephemeral's authorized representatives to inspect Licensee’s books, records, accounts, and facilities during normal business hours as needed to verify compliance with the terms of this Agreement.
Customers; Consents and Aftercare Instructions. Licensee shall, before providing an Ephemeral Tattoo, require each Customer to review and execute Ephemeral’s standard waiver and release form set forth in Artist Manual (each, a “Consent”) and shall provide appropriate aftercare instructions prior to or immediately after applying an Ephemeral Tattoo.
3.4 Authority to Perform; Personal Data. Licensee shall, at its expense, obtain and maintain all required certifications, credentials, licenses, permits, registrations, authorizations, or approvals from the applicable regulatory authority or authorities necessary to conduct its business in accordance with this Agreement or otherwise required to lawfully sell the Ephemeral Ink and provide Ephemeral Tattoos to Customers at the Premises. In connection with, and for the purpose of carrying out its obligations under this Agreement, Licensee may from time to time disclose Personal Data to Ephemeral. Licensee shall ensure that it has the authority and all necessary and appropriate consents and notices in place to enable lawful disclosure of the Personal Data to Ephemeral in accordance with the terms of this Agreement. For purposes of this section, “Personal Data” means any data relating to an identified or identifiable Customer or Licensee.
3.5 Use of Ephemeral Ink. Licensee shall comply with all instructions provided by Ephemeral regarding the use, storage, and maintenance of Ephemeral Ink and Ephemeral Tattoos, including the instructions set forth in the Artist Manual. Further, Licensee shall follow, in addition to the Guidelines, well-defined processes and current industry best practices when using the Ephemeral Ink and providing Ephemeral Tattoos to Customers. Licensee is responsible for verification of Customers’ age and abiding by all local regulations related to age requirements and restrictions. Ephemeral reserves the right to contact Customers directly to confirm Licensee’s compliance with the terms of this Agreement.
3.6 Publicity Waiver. In the event Licensee provides any photos, videos or other content or materials including the name, image, or likeness of Licensee related to the Ephemeral Ink or Ephemeral Tattoo to Ephemeral, Licensee shall review and execute the Publicity Waiver and Release set forth in Artist Manual (the “Publicity Waiver”) and promptly submit the Publicity Waiver to Ephemeral via electronic link set forth in the Artist Manual.
3.7 Prohibited Acts. Licensee shall not:
(a) Make any false or misleading representations or warranties to any Customer regarding Ephemeral, the Ephemeral Ink or Ephemeral Tattoos;
(b) Make any reference or claim to Customers regarding the specifications, features, or capabilities of the Ephemeral Ink or Ephemeral Tattoos that are inconsistent with the current materials published or provided by Ephemeral;
(c) Make any representation or warranty to Customers regarding the Ephemeral Ink or Ephemeral Tattoos without Ephemeral’s prior written authorization;
(d) engage in any unfair, anti-competitive, misleading, or deceptive practices regarding Ephemeral, the Ephemeral Ink or Ephemeral Tattoos, including the Ephemeral Marks;
(e) make any modifications to the Ephemeral Ink, including its labeling or packaging, or market, distribute, or sell the Ephemeral Ink other than in the form and packaging as delivered by Ephemeral under this Agreement;
(f) sell Ephemeral Tattoos to any individual or entity other than Customers;
(g) provide an Ephemeral Tattoo to a Customer without the required training and Consent;
(h) tattoo any Customer with Ephemeral Ink who has failed to provide Consent;
(i) tattoo any Customer with Ephemeral Ink outside of the recommended and approved placements set forth in the Artist Manual; or
(j) sell, resell, transfer or otherwise use the Ephemeral Ink for any purpose other than to provide Ephemeral Tattoos to Customers at the Premises.
3.8 Limited Customer Support. Following Licensee's sale of an Ephemeral Tattoo to any Customer, Licensee shall, at its expense:
(a) respond with sufficient knowledge to the Customer inquiries on the differences between the Ephemeral Ink and competing ink;
(b) ensure that an adequate number of qualified personnel who are trained on the Guidelines and who have sufficient knowledge of the Ephemeral Ink are available during normal business hours to assist the Customers; and
(c) respond to the Customer regarding the general operation and use of the Ephemeral Ink, including:
(c.i) acting as a liaison between the Customer and Ephemeral in matters requiring Ephemeral participation;
(c.ii) providing general Ephemeral Ink and Ephemeral Tattoo information and features; and
(c.iii)collecting relevant information on technical issues for Ephemeral.
Except as otherwise provided in this Agreement or in a separate written agreement with Ephemeral, Licensee shall not copy, modify, alter, reverse engineer, or otherwise change the Ephemeral Ink it sells to Customers.
4. Ephemeral Obligations.
4.1 Assistance with Marketing, Promotion and Use . Ephemeral shall work with Licensee to develop a marketing plan mutually agreed to by the Parties (the “Marketing Plan”).
4.2 Ephemeral Ink Regulatory Compliance. Ephemeral shall ensure the Ephemeral Ink complies in all material respects with applicable laws affecting the manufacture and sale of the Ephemeral Ink as a cosmetic to Licensee.
5. Agreement to Purchase and Sell Ephemeral Ink.
5.1 Terms of Sale. Ephemeral shall make available and sell Ephemeral Ink to Licensee, and Licensee shall purchase Ephemeral Ink from Ephemeral, on the terms and conditions set out in this Agreement, including the Order Form. The terms and conditions of all orders under this Agreement are limited to the terms of this Agreement and the Purchase Order Transaction Terms (defined below) contained in the applicable Order Form. The terms of this Agreement supersede all terms and conditions contained in any other documentation related to the subject matter of this Agreement.
5.2 Minimum Purchase. During the Term, Licensee shall purchase a sufficient amount of Ephemeral Ink from Ephemeral so as to meet or exceed the minimum purchase requirement set forth in the applicable Order Form, if any.
5.3 Purchase Orders. Licensee shall issue all purchase orders to Ephemeral via an Order Form manner that Ephemeral deems acceptable, which shall specify the following commercial terms (the "Purchase Order Transaction Terms"): (a) a list of Ephemeral Ink and other items to be purchased; (b) the quantities ordered; and (c) the applicable shipping term and delivery point.
5.4 Acceptance or Rejection of Purchase Orders.
(a) Ephemeral shall use its commercially reasonable efforts to fulfill all purchase orders for the Ephemeral Ink and other items in accordance with the terms of this Agreement.
(b) Ephemeral shall confirm to Licensee the receipt of each purchase order properly issued hereunder and respond with its acceptance or rejection within five (5) business days following Ephemeral's receipt of the purchase order (the "Purchase Order Response Period"). If Ephemeral does not accept a purchase order within the Purchase Order Response Period, the purchase order is deemed to be rejected by Ephemeral.
5.5 Order Cancellation or Changes.
(a) Except as provided in 8.3(a), neither party may cancel an accepted purchase order, unless mutually agreed in writing. Licensee may request changes to an accepted purchase order by submitting a written change order request to Ephemeral [via email, hello@ephemeral.tattoo]. Within five (5) business days after receiving a change order request, Ephemeral shall notify Licensee if Ephemeral accepts the change and if accepted, any Purchase Order Transaction Terms impacted as Ephemeral reasonably determines. Licensee may then submit an amended purchase order including the revised Purchase Order Transaction Terms set out in Ephemeral's acceptance.
(b) Licensee may cancel or amend any purchase order before Ephemeral acceptance or rejection by notifying Ephemeral [via email, hello@ephemeral.tattoo][no later than two (2) business days] before the end of the Purchase Order Response Period for the purchase order.
5.6 Shipment and Delivery.
(a) The Ephemeral Ink shall be delivered to Licensee in the quantities as specified in the relevant purchase order or as otherwise agreed in writing by the Parties.
(b) Delivery shall be made at Licensee’s expense in accordance with the shipping terms set out in the relevant purchase order using Ephemeral's standard methods for packaging and shipping, unless otherwise agreed in writing by the Parties.
5.7 Inspection and Acceptance. Licensee shall inspect Ephemeral Ink received under this Agreement and notify Ephemeral within [five (5) days] after delivery if any of the Ephemeral Ink lots are damaged, defective or otherwise do not conform to the specifications listed in the applicable purchase order. If Licensee so notifies Ephemeral and provides evidence of such non-conformity to Ephemeral, Ephemeral shall determine in its sole discretion whether the Ephemeral Ink is nonconforming. If Ephemeral determines the Ephemeral Ink is nonconforming, then Ephemeral shall replace the Ephemeral Ink. Licensee shall ship at Ephemeral’s expense and risk of loss all Ephemeral Ink to be replaced under this Section to 4 Oxford Road, Suite B, Milford, CT 06460 or such other address as specified by Ephemeral. In the event Ephemeral replaces the Ephemeral Ink, Ephemeral shall ship to Licensee, at Ephemeral's expense and risk of loss, the replacement Ephemeral Ink to Licensee. Licensee is deemed to have accepted the Ephemeral Ink upon delivery if notice has not been provided to Ephemeral within five (5) days after delivery. Licensee acknowledges and agrees that the remedies set out in this Section 5.7 are exclusive of all other remedies.
5.8 Title. Title to Ephemeral Ink passes to Licensee on delivery of the Ephemeral Ink to the Premises or other location specified by Licensee in the applicable purchase order.
5.9 Price, Taxes, and Other Costs.
(a) The prices for Ephemeral Ink sold under this Agreement shall be as stated in the Order Form, and all payments by Licensee should be made in U.S. Dollars (USD) Ephemeral may adjust the prices for future orders at any time.
(b) All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes or charges imposed by any governmental authority on any amounts payable by Licensee under this Agreement. Licensee is responsible for payment of all charges, costs, taxes, and other fees imposed by any governmental authority related to its purchase or sale of the Ephemeral Ink. Licensee shall pay for shipping charges and insurance costs in accordance with the commercial terms selected by the Parties under Section 5.6.
(c) Licensee shall unilaterally establish its own sale prices and terms regarding the Ephemeral Tattoos.
5.10 Payment Terms and Invoice Disputes.
(a) Ephemeral shall issue invoices to Licensee, and Licensee shall pay all invoiced amounts due to Ephemeral upon receiving such invoice in accordance with the additional payment terms set forth therein.
(b) Licensee shall pay interest on all late payments, calculated daily and compounded monthly, at the lesser of the rate of two percent (2%) per month or the highest rate permissible under applicable law.
6. Warranty Disclaimer. EPHEMERAL DOES NOT MAKE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING OR PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
IN PARTICULAR, AND WITHOUT LIMITATION, EPHEMERAL MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TO: (1) EPHEMERAL INKS’ FITNESS FOR PURPOSE FOR ANY GIVEN INDIVIDUAL, (2) EPHEMERAL RECOMMENDED AFTERCARE MATERIALS’ FITNESS FOR PURPOSE FOR ANY GIVEN INDIVIDUAL, OR ANY BENEFITS TO HEALING, OVERALL OUTCOME, AND SATISFACTION WITH REGARD TO THEIR USE AND TATTOO(S) RECEIVED, (3) THE ADEQUACY AND COMPLETENESS OF EPHEMERAL EDUCATIONAL MATERIALS, THEIR FITNESS FOR PURPOSE, OR THE BENEFIT(S) THEY MAY PROVIDE (4) ANY INDIVIDUAL’S EXPERIENCES WITH EPHEMERAL INK, ANY TATTOO(S) THEY RECEIVE, OR ATTRIBUTES OF TATTOOS, INCLUDING BUT NOT LIMITED TO DESIGN, COLOR, VIBRANCY, AESTHETICS, FADE TIME, MANNER OF FADING, AND LOCATION OF FADING OVER TIME; AND (5) THE ALLERGENIC POTENTIAL AND LONG-TERM SAFETY OF EPHEMERAL INKS AND THEIR COMPONENTS.
EPHEMERAL INK FORMULATIONS, EPHEMERAL RECOMMENDED AFTERCARE MATERIALS, AND EPHEMERAL EDUCATIONAL MATERIALS MAY BE UPDATED AT ANY TIME AND FOR ANY REASON. EPHEMERAL INK IS UNDER NO OBLIGATION TO PROVIDE NOTIFICATION OF UPDATES.
EPHEMERAL INKS ARE COSMETIC PRODUCTS, AND LIKE OTHER TATTOO INKS, HAVE NOT BEEN REVIEW OR APPROVED BY THE U.S. FOOD AND DRUG ADMINISTRATION.
7. Intellectual Property.
Licensee Marks and Content. Licensee hereby grants to Ephemeral an irrevocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, worldwide, perpetual right to use Licensee’s trademarks in connection with the promotion, advertising, offer to sell, sale and provision of Ephemeral Ink and Ephemeral Tattoos. Licensee hereby grants to Ephemeral an irrevocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, worldwide, perpetual right to use, publish, reproduce, perform, display, distribute, modify, prepare derivative works based upon, and otherwise exploit Licensee’s original works of authorship related to the Ephemeral Ink and Ephemeral Tattoos and all intellectual property rights therein and any other content related to the Ephemeral Ink and Ephemeral Tattoo in which Licensee holds proprietary rights and all derivative works thereof in connection with the promotion, advertising, offer to sell, sale and provision of Ephemeral Ink and Ephemeral Tattoos.
7.1 Ephemeral Marks. Ephemeral hereby grants to Licensee a limited non-exclusive, non-transferable, and non-sublicensable right to use Ephemeral's trademarks set forth on Artist Manual ("Ephemeral Marks") solely in connection with the promotion, advertising, offer to sell, sale of Ephemeral Ink and provision of the Ephemeral Tattoos at the Premises in accordance with the terms and conditions of this Agreement. Licensee acknowledges and agrees that the Ephemeral Marks are the sole and exclusive property of Ephemeral, and that Licensee shall not acquire any right or ownership interest in them or any other intellectual property rights of Ephemeral under this Agreement, except for the right to use the Ephemeral Marks as expressly provided in this Section 7.2. Any goodwill derived from the use by Licensee of the Ephemeral Marks inures to the benefit of Ephemeral. Licensee acknowledges and is familiar with the high standards, quality, style, and image of Ephemeral, and Licensee at all times shall conduct its business and use the Ephemeral Marks in a manner consistent with these standards, quality, style, and image. Upon expiration or termination of this Agreement, Licensee's rights under this Section 7 cease immediately and Licensee shall immediately discontinue all use of the Ephemeral Marks.
7.2 Ownership. Licensee acknowledges and agrees that the Ephemeral Marks, Ephemeral Ink, Ephemeral Confidential Information (as defined below), and other materials, data and information provided by Ephemeral to Licensee under this Agreement are the sole and exclusive property of Ephemeral, and that Licensee shall not acquire any right or ownership interest in and to the Ephemeral Marks or any other of Ephemeral’s intellectual property rights under this Agreement, except for the right to use the Ephemeral Marks as expressly provided in this Section 7.2. Ephemeral will solely own all right, title, and interest in and to all enhancements, variation, modification, derivation, or other improvements to the Ephemeral Ink and use thereof (each, an “Improvement”), regardless of inventorship, authorship, or other origination. If any employee, agent, or independent contractor of Licensee makes any Improvement, whether solely or jointly with Ephemeral, Licensee irrevocably hereby transfers and assigns to Ephemeral, without additional consideration, all of its right, title, and interest in and to such Improvement.
8. Term; Termination.
8.1 Term. The term of this Agreement commences on the Effective Date and, unless earlier terminated as provided under this Agreement, continues for one (1) year and shall thereafter renew for additional successive one (1) year terms unless and until either Party provides notice of its intent not to renew at least [sixty (60)] days before the end of the then-current term (the "Term"). If either Party provides timely notice of its intent not to renew this Agreement, then this Agreement terminates on the expiration of the then-current Term.
8.2 Termination. Notwithstanding anything to the contrary in this Agreement, Ephemeral may terminate this Agreement, without cause, at any time upon notice to Licensee, and such termination shall become effective [thirty (30)] days following the delivery of such notice. This Agreement may be terminated immediately by either Party after notice to the other Party if:
(a) the other Party fails to pay any amount when due under this Agreement and remains in default for more than ten (10) days following that Party's receipt of notice of such nonpayment;
(b) the other Party is in breach of this Agreement (except as set out in Section 8.2(a)) and either the breach cannot be cured or, if the breach can be cured, it is not cured within thirty (30) days following that Party's receipt of notice of such breach; or
(c) the other Party: (i) becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency Law; (ii) makes or seeks to make a general assignment for the benefit of its creditors, seeks reorganization, winding-up, liquidation, dissolution, or other similar relief with respect to it or its debts; (iii) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property; or (iv) is generally unable to pay its debts as they become due.
Any termination under this Section 8.2 does not affect any other rights or remedies to which the terminating Party may be entitled and is effective on the non-terminating Party's receipt of notice of termination or any later date set out in such notice.
8.3 Effect of Expiration or Termination. The expiration or termination of this Agreement does not affect any rights or obligations that are to survive the expiration or termination of this Agreement under Section 13.5 or were incurred by the Parties before the expiration or termination (except as expressly provided herein). On the expiration or termination of this Agreement:
(a) Ephemeral may cancel all purchase orders placed before the effective expiration or termination date if delivery is due thereafter;
(b) Licensee shall cease to represent itself as Ephemeral's authorized licensee of the Ephemeral Ink [and promptly return [or destroy]] any Ephemeral Ink in its possession. Return of Ephemeral Ink pursuant to this Section 8.3(b) shall be at Ephemeral’s expense.
9. Compliance With Laws. Each Party shall at all times comply with all laws and regulations applicable to the operation of its business, this Agreement, and its performance hereunder.
10. Indemnification.
10.1 Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Ephemeral and its Affiliates, and each of Ephemeral’s and its Affiliates’ respective officers, directors, employees, agents, successors, and assigns (“Ephemeral Indemnified Party”) from and against all Losses arising out of or resulting from any Action by a third party related to or arising out of or resulting from: (i) Licensee's breach of any representation, warranty, covenant, or obligation under this Agreement; (ii) Licensee’s acts or omissions in connection with any licenses or rights granted to it or its performance hereunder during the Term; or (iii) any use, sale, transfer, or other disposition of Ephemeral Ink or Ephemeral Tattoos by or on behalf of Licensee, its agents, Affiliates, or contractors, including claims and threatened claims based on product liability, bodily injury, risk of bodily injury, death or property damage.
10.2 Mutual Indemnification. Each Party shall indemnify, hold harmless, and defend the other Party and its officers, directors, employees, agents, successors, and assigns (“Licensee Indemnified Party”) from and against any and all Losses out of or resulting from any Action by a third party related to or arising out of or resulting from: (a) any fraud, willful misconduct or gross negligence of the indemnifying Party; or (ii) failure by the indemnifying Party to comply with any applicable laws.
10.3 Exceptions and Limitations to Indemnification. Notwithstanding anything to the contrary in this Agreement, neither Ephemeral or Licensee (as “Indemnifying Party”) is obligated to indemnify or defend (if applicable) an Ephemeral Indemnified Party or Licensee Indemnified Party (collectively, “Indemnified Party”) against any Action if such Action or corresponding Losses arise out of or result from the Indemnified Party's or its agent's: (a) gross negligence or more culpable act or omission (including recklessness or willful misconduct); (b) bad faith failure to comply with any of its obligations set forth in this Agreement; or (c) use of the Ephemeral Ink or provision of Ephemeral Tattoos in any manner not otherwise authorized under this Agreement or that does not materially conform with the Guidelines.
10.4 Indemnification Procedure. If an indemnified Party becomes aware of any claim, event, or fact that may give rise to a claim by the indemnified Party against the indemnifying Party for indemnification under Sections 10.1 or 10.2, the indemnified Party shall promptly notify the indemnifying Party. The indemnified Party shall give indemnifying Party control over the proceedings and shall reasonably cooperate in the investigation, settlement, and defense of such claims at indemnifying Party's expense; provided that the indemnified Party may, at its own expense, participate in such defense. The indemnifying Party shall not enter into a settlement of such claim that does not include a full release of the indemnified Party or involves a remedy other than the payment of money, without the indemnified Party's consent. If the indemnifying Party does not assume control over the defense of a claim as provided in this Section 10.4, the indemnified Party may defend the claim in such manner as it may deem appropriate, at the cost and expense of the indemnifying Party.
11. Limitation of Liability. IN NO EVENT IS EPHEMERAL LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, LOSS OF DATA, OR DIMINUTION IN VALUE OF BUSINESS ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (I) WHETHER THE DAMAGES WERE FORESEEABLE; (II) WHETHER OR NOT EPHEMERAL WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED. IN NO EVENT SHALL EPHEMERAL'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 TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO EPHEMERAL UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF THE PARTIES' REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. Insurance. During the Term and for a period of two (2) years thereafter, Licensee shall, at its own expense, maintain and carry with financially sound and reputable insurers such types and amounts of insurance as required to comply with all applicable laws, rules, and regulations.
13. Miscellaneous
13.1 Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent the failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake, pandemics, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within fourteen (14) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of the Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of ninety (90) days following notice given by it under this Section 13.1, either Party may thereafter terminate this Agreement on ten (10) days' notice.
13.2 Relationship of the Parties. The Parties to this Agreement are independent contractors and nothing in this Agreement is intended to, or shall be deemed to, create a joint venture, partnership, agency or employment relationship, franchise, or business opportunity between the Parties. Neither Party, by virtue of this Agreement, has any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and is solely responsible for their supervision, daily direction, and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement is to be accomplished. Except as provided otherwise in this Agreement, Licensee has the sole discretion to determine Licensee's methods of operation, accounting practices, personnel practices, and business strategy, practices, and methods.
13.3 Public Announcements. Except as expressly set forth herein, neither Party shall (orally or in writing) publicly disclose, issue any press release or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, without the prior written approval of the other Party.
13.4 Entire Agreement. This Agreement, including and together with any related exhibits, schedules, and attachments and the Order Form, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained in this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral.
13.5 Survival. Subject to the limitations and other provisions of this Agreement, Sections 3, 5, 6, 7, 10, 11, 12, and 13 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or termination of this Agreement.
13.6 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at the addresses set forth on the first page of this Agreement (or to any other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail (in each case, return receipt requested and postage prepaid), or email. Except as otherwise provided in this Agreement, a notice is effectively and validly given only (a) if sent by personal delivery or courier on receipt by the receiving Party, (b) if sent by certified or registered mail, return receipt requested, postage prepaid on the third day after the date mailed; and (c) if sent by email upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “read receipt” function, as available, return email or other form of written acknowledgment).
13.7 Headings. The heads in this Agreement are for reference only and do not affect the interpretation of this Agreement.
13.8 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement; provided, however, that if any fundamental term or provision of this Agreement is invalid, illegal, or unenforceable, the remainder of this Agreement is unenforceable. On a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to achieve the intended commercial result of the original provision to the greatest extent possible.
13.9 Amendments. No amendment to this Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each Party.
13.10 Waiver. No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement, and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement: (a) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or (b) any act, omission, or course of dealing between the Parties.
13.11 Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at law, in equity, by statute, in this or any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Licensee's rights under 5.9 are Licensee's exclusive remedies for the events specified therein.
13.12 Assignment. Licensee may not assign any of its rights or delegate or subcontract any of its obligations under this Agreement without the prior written consent of Ephemeral. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement.
13.13 Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
13.14 No Third-Party Beneficiaries. Subject to the next sentence, the Parties do not confer any rights or remedies upon any other individual or entity except the Parties to this Agreement and their respective successors and permitted assigns. The Parties hereby designate the Indemnified Parties (other than Ephemeral and Licensee) as third-party beneficiaries of 10 with the right to enforce such Section 10.
13.15 Governing Law. This Agreement, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflict of laws provisions thereof to the extent these principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.
13.16 Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and each Party waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, or the transactions contemplated hereby.
13.17 Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The place of arbitration shall be New York, New York, and the arbitration shall be conducted in the English language. There shall be three (3) arbitrators agreed to by the Parties within thirty (30) days of receipt by respondent of the request for arbitration or, in default of such agreement, by the AAA. The award rendered by the arbitrators shall be final and binding on the Parties, and may be entered and enforced in any court having jurisdiction, and any court where a party or its assets is located (to whose jurisdiction the Parties consent for the purposes of enforcing the award).The arbitrators will also be empowered to determine the arbitrability of any controversy or claim. All arbitrations will be conducted on an individual basis, and there shall be no class or collective actions in arbitration. Either Party may apply to the arbitrators seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either Party also may, without waiving any remedy under this agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that Party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy).
13.18 Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions of this Agreement in any other language shall be for accommodation only and shall not be binding upon the parties. All communication, notices, or other documents to be made, given, or approved pursuant to this Agreement shall be made in the English language. Licensee acknowledges that Licensee’s authorized representatives are proficient in the English, so as to allow Licensee and its authorized representatives to understand the terms of this Agreement or any other document related to this Agreement.
13.19 Ambiguities. This Agreement shall be deemed to have been drafted jointly by both Parties; and ambiguities, if any, shall not be construed against either Party, irrespective of which Party may have actually drafted the ambiguous provision. Each Party has had an opportunity to consult independent legal counsel in reaching this Agreement.