BOUTIQUE MATE SOFTWARE AS A SERVICE TERMS & CONDITIONS

THESE SOFTWARE AS A SERVICE TERMS & CONDTIONS (this "T&C") shall govern the use of BM's System (as defined below) by the Provider (as defined below).

1. DEFINITIONS.

The following capitalized terms shall have the following meanings whenever used in this T&C.

1.1. "AUP" means BM's acceptable use policy currently, as set forth in the Terms of Service and Privacy Policy made available to Users (as defined below) on BM's System (as defined below).

1.2. "BM" is defined in the Order.

1.3. "BM Application(s)" means any software applications developed and produced by BM including, without limitation, website, personal computer, and mobile device applications, that utilize the Software as part of the System.

1.4. "Booking Terms & Conditions" means the terms and conditions provided by the System to Customers in the form agreed to by and between BM and Provider annexed as Exhibit A to the Order.

1.5. "Customers" means third party individuals and/or organizations who purchase Provider's services via the System.

1.6. "Documentation" means BM's documentation related to use of the System as provided via the System.

1.7. "Merchant" means the credit card and bank payment processing entity partner that is utilized by BM and Provider through the System for which additional Pass-Through Merchant Terms and Conditions (as defined below) may apply.

1.8. "Non-refundable Fees" means payments made by Customers that are not subject to potential refund.

1.9. "Order" means the Software as a Service Order executed by and between BM and Provider which fully incorporates by reference this T&C.

1.10. "Privacy Policy" means BM's privacy policy as set forth in its AUP (defined above).

1.11. "Provider" is defined in the Order.

1.12. "Provider Content" means content in electronic form input or collected through the System by or from Provider, including without limitation by Provider's Users.

1.13. "Provider Merchant Account" means the credit card and bank payment Merchant subaccount maintained by BM on Provider's behalf for the transacting of payments by Customers via the System.

1.14. "Provider Merchant Terms and Conditions" means those terms and conditions that govern the Merchant subaccount maintained by BM on Provider's behalf for the transacting of payments by Customers via the System as may be amended from time to time in the sole discretion of the Merchant.

1.15. "Provider Application(s)" means any software applications including, without limitation, website, personal computer, and mobile device applications developed and produced by Provider or any third parties hired by Provider that, pursuant to the licenses granted hereunder, utilize the Software as part of the System.

1.16. "Refundable Fees" means payments made by Customers that are subject to potential refund (e.g., refundable deposits, services that may be refunded for non-use, etc.).

1.17. "SLA" means BM's standard service level agreement as annexed hereto at Exhibit A.

1.18. "Software" means BM's downloadable software including, without limitation, computer and mobile software applications, which interacts with BM's System.

1.19. "System" means BM's internet-based software system which is accessible at www.boutiquemate.com; for the avoidance of doubt, the System shall also include any of BM's Software.

1.20. "Term" is defined in Section 11.1 below.

1.21. "User" means any individual who uses the System on Provider's behalf or through Provider's accounts or passwords, as provided to Provider by BM, whether authorized or not. For the avoidance of doubt, it is expressly prohibited for Provider to share its accounts or passwords with Users who are not employees, officers, or directors of Provider.

2. THE SYSTEM.

2.1. Use of the System. During the Term, Provider and its Users may access and use the System pursuant to: (a) the terms of any outstanding Order, including such number of authorized User accounts as the Order requires; and (b) BM's AUP and Privacy Policy, as such policies may be updated from time to time.

2.2. Service Levels. BM shall provide the System in accordance with the SLA and any failures o of the System listed in the SLA shall be subject to the remedies set forth therein. Such remedies are Provider's sole remedy for any failure of the System, and Provider recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this T&C. BM is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this T&C.

2.3. Provider Merchant Account. BM shall create and maintain a Provider Merchant Account for the transaction of payments by Customers for Provider's services. BM agrees that provision of the Merchant services including payment processing and other financial services provided by the Merchant are subject to the Provider Merchant Account Terms and Conditions as may be set forth separately from this T&C and the Booking Terms & Conditions. BM understands that the Provider Merchant Account Terms and Conditions may be updated or amended at the sole discretion of the Merchant and that performance of the Merchant services provided within the scope of the Provider Merchant Account are not subject to the terms of these T&Cs and outside the scope of the relationship between BM and Provider including Provider's Customers.

2.4. Booking Terms & Conditions. The System shall provide to, and require Customers to agree with, the Booking Terms & Conditions upon Customers' purchase of Provider services via the System.

2.5. Documentation: Provider may reproduce and use the Documentation solely as necessary to support Users' use of the System.

2.6. System Revisions. BM may revise System features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Provider may within 30 days of notice of the revision terminate such Order, without cause, or terminate this T&C without cause if such Order is the only one outstanding. If any such revision to the SLA materially reduces service levels provided pursuant to an outstanding Order, the revisions shall not go into effect with respect to such Order until the start of the Term beginning forty-five (45) or more days after BM posts the revision and so informs Provider.

2.7. Software License. During the Term, Provider shall have the non-exclusive, limited, worldwide license to copy, use, and reproduce the Software as part of Provider Applications. For the avoidance of doubt, Provider shall discontinue all use of the Software upon the termination of this T&C. Provider further agrees that BM shall have the right, via the System, to disable the functionality of any Software if used outside of the license hereunder.

3. SYSTEM FEES.

Provider shall pay BM the subscription fee set forth in each Order (the "Subscription Fee") and the processing fee (the "Processing Fee") during the Term. BM will not be required to refund the Subscription Fee under any circumstances.

4. PROVIDER CONTENT & PRIVACY.

4.1. Use of Provider Content. Unless it receives Provider's prior written consent, BM: (a) shall not access, process, or otherwise use Provider Content other than as necessary to facilitate the System; and (b) shall not intentionally grant any third-party access to Provider Content, including without limitation BM's other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, BM may disclose Provider Content as required by applicable law or by proper legal or governmental authority. BM shall give Provider prompt notice of any such legal or governmental demand and reasonably cooperate with Provider in any effort to seek a protective order or otherwise to contest such required disclosure, at Provider's expense.

4.2. Privacy Policy. The Privacy Policy applies only to the System, excluding the Provider Merchant Account, and does not apply to any third-party website or service linked to the System or recommended or referred to through the System or by BM's staff.

4.3. Risk of Exposure. Provider recognizes and agrees that hosting content online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Provider assumes such risks. BM offers no representation, warranty, or guarantee that Provider Content will not be exposed or disclosed through errors or the actions of third parties.

4.4. Content Accuracy. BM shall have no responsibility or liability for the accuracy of content uploaded to the System by Provider, including without limitation Provider Content and any other content uploaded by Users. Provider represents and warrants that the Provider Content is accurate and not in violation of applicable laws including data privacy laws, to the best of its knowledge.

4.5. Content Deletion. Unless otherwise provided in an Order, BM may permanently erase Provider Content if Provider's account is delinquent, suspended, or terminated for thirty (30) days or more.

4.6. Excluded Content. Provider represents and warrants that Provider Content does not and will not include, and Provider has not and shall not upload or transmit to BM's computers or other media, any content ("Excluded Content") that is prohibited in the AUP including, without limitation, any content that may infringe on any third-party intellectual property rights.

4.7. Aggregate & Anonymized Content. Notwithstanding the provisions above of this Section 4, BM may use, reproduce, sell, publicize, or otherwise exploit Aggregate Content in any way, in its sole discretion. ("Aggregate Content" refers to Provider Content with the following removed: personally identifiable information and the names and addresses of Provider and any of its Users or customers.)

4.8. Publicity. Provider hereby authorizes BM, during the term of this T&C, to publicize Provider as a customer of BM's services except that BM may not publicize the terms of this T&C or any information about Provider's or its Users' use of the System.

5. PROVIDER’S RESPONSIBILITIES & RESTRICTIONS.

5.1. Acceptable Use. Provider's Users shall comply with the AUP. Additionally, Provider and its Users shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party who is not an employee, officer, or director of Provider; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, BM may suspend Provider's access to the System without advanced notice, in addition to such other remedies as BM may have. Neither this T&C nor the AUP requires that BM take any action against Provider or any User or other third party for violating the AUP, this Section 5.1, or this T&C, but BM is free to take any such action it sees fit.

5.2. Unauthorized Access. Provider shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Provider shall notify BM immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.

5.3. Compliance with Laws. In its use of the System, Provider shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Provider Content.

5.4. Users & System Access. Provider is responsible and liable for: (a) Users' use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this T&C applicable to Provider; and (b) any use of the System through Provider's account, whether authorized or unauthorized.

5.5. Non-Circumvention, Audit. Provider agrees not to circumvent any obligation under this T&C including, without limitation, charging Customers lower fees than quoted via the System. Provider agrees that BM may, at BM's election, audit the books and records of Provider for the purpose of confirming non-circumvention of this T&C. Provider shall provide BM and/or its representative access with such records as necessary under this paragraph.

6. IP & FEEDBACK.

6.1. IP Rights to the System. BM retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This T&C does not grant Provider any intellectual property license or rights in or to the System or any of its components. Provider recognizes that the System and its components are protected by copyright and other laws.

6.2. Feedback. BM has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Provider or Users provide to BM, and nothing in this T&C or in the parties' dealings arising out of or related to this T&C will restrict BM's right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Provider or the User in question. ("Feedback" refers to any suggestion or idea for improving or otherwise modifying any of BM's products or services.)

6.3. Attorney's Fees and Enforcement Costs. In the event of any breach or threatened breach of BM's intellectual property rights or proprietary information—whether arising under any Agreement, Terms and Conditions, Privacy Policy, Advisor Agreement, Ownership direction or any related agreement—the responsible party shall indemnify and hold harmless BM, its affiliates, and its representatives for all reasonable costs and expenses incurred in protecting or enforcing its rights. This includes, without limitation, attorneys' fees, expert witness fees, court costs, arbitration fees, and any other legal or administrative expenses, whether such enforcement occurs through litigation, arbitration, or alternative dispute resolution. This clause applies broadly to all proprietary assets and intellectual property of BM, including but not limited to: patented methods, patent systems, patent models, patent intelligence, proprietary algorithms, software systems, machine learning models, artificial intelligence applications, source code, trade secrets, data structures, business processes, and any confidential or non-public information created, licensed, or utilized by BM.

6.4. Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. Any legal action, proceeding, or dispute resolution arising out of or relating to this agreement shall be brought exclusively in the state or federal courts located in New York County, New York, and each party hereby irrevocably submits to the jurisdiction and venue of such courts.

7. CONFIDENTIAL INFORMATION.

“Confidential Information” refers to the following items BM discloses to Provider: (a) any document BM marks "Confidential"; (b) any information BM orally designates as "Confidential" at the time of disclosure, provided BM confirms such designation in writing within thirty (30) business days; (c) the Documentation, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by BM, whether or not marked or designated "Confidential." Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Provider's possession at the time of disclosure; (ii) is independently developed by Provider without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Provider's improper action or inaction; or (iv) is approved for release in writing by Provider.

7.1. Nondisclosure. Provider shall not use Confidential Information for any purpose other than in connection with its authorized use of the System pursuant to this T&C (the "Purpose"). Provider: (a) shall not disclose Confidential Information to any employee or contractor of Provider unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Provider with terms no less restrictive than those of this Section 7; and (b) shall not disclose Confidential Information to any other third party without BM's prior written consent. Without limiting the generality of the foregoing, Provider shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Provider shall promptly notify BM of any misuse or misappropriation of Confidential Information that comes to Provider's attention. Notwithstanding the foregoing, Provider may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Provider shall give BM prompt notice of any such legal or governmental demand and reasonably cooperate with BM in any effort to seek a protective order or otherwise to contest such required disclosure, at BM's expense.

7.2. Injunction. Provider agrees that breach of this Section 7 would cause BM irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, BM will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.3. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above ( Nondisclosure ) will indefinitely survive the termination of this T&C. Upon termination of this T&C, Provider shall return all copies of Confidential Information to BM or certify, in writing, the destruction thereof.

7.4. Retention of Rights. This T&C does not transfer ownership of Confidential Information or grant a license thereto. BM will retain all right, title, and interest in and to all Confidential Information.

8. REPRESENTATIONS & WARRANTIES.

8.1. From BM. BM represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this T&C without the further consent of any third party. BM's representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by BM. In the event of a breach of the warranty in this Section 8.1, BM, at its own expense, will promptly take the following actions: (a) secure for Provider the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Provider any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Provider's right to terminate for breach where applicable, the preceding sentence states BM's sole obligation and liability, and Provider's sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.

8.2. From Provider. Provider represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this T&C and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this T&C; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

8.3. Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 above, PROVIDER ACCEPTS THE SYSTEM "AS IS" AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) BM HAS NO OBLIGATION TO INDEMNIFY OR DEFEND PROVIDER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) EXCEPT AS OTHERWISE PROVIDED IN THE SLA BM DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) BM DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT PROVIDER CONTENT WILL REMAIN PRIVATE OR SECURE.

9. INDEMNIFICATION.

Provider shall defend, indemnify, and hold harmless BM and the BM Associates (as defined below) against any "Indemnified Claim," meaning any third party claim, suit, or proceeding arising out of or related to Provider's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Provider's employees, as well as by Provider's own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Provider Content; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Provider's account, including without limitation by Provider Content; and (d) claims that use of the System through Provider's account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Provider's obligations set forth in this Section 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Provider's expense and payment of judgments. BM will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The "BM Associates" are BM's officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.) BM shall defend, indemnify, and hold harmless Provider and the Provider Associates (as defined below) against any "Indemnified Claim," meaning any third-party claim, suit, or proceeding arising out of or related to (a) claims against Provider that the System violates any third party intellectual property rights; and (b) claims against Provider arising out of the gross negligence of BM and its staff. BM's obligations set forth in this Section 9 include retention and payment of attorneys and payment of court costs, as well as settlement at BM's expense and payment of judgments. Provider will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The "Provider Associates" are Provider's officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

10. LIMITATION OF LIABILITY.

10.1. Dollar Cap. BM'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL PAYMENTS MADE TO BM DURING THE TERM OF THIS AGREEMENT.

10.2. Exclusion of Consequential Damages. IN NO EVENT WILL BM BE LIABLE TO PROVIDER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF BM IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF PROVIDER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 10, BM's liability will be limited to the maximum extent permissible. For the avoidance of doubt, BM's liability limits and other rights set forth in this Section 10 apply likewise to BM's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

11. TERM & TERMINATION.

11.1. Term. The term of this T&C (the "Term") shall commence on the Effective Date and continue for the period set forth in the Order.

11.2. Termination without Cause. Either party may terminate this T&C without cause upon 45 days via the termination function provided by the System.

11.3. Termination for Cause. Either party may terminate this T&C for the other's material breach by written notice, effective in 45 days unless the other party first cures such breach.

11.4. Effects of Termination. Upon termination of this T&C, Provider shall cease all use of the System and delete, destroy, or return all copies of the Documentation and Software in its possession or control. The following provisions will survive termination or expiration of this T&C: (a) any obligation of Provider to pay fees incurred before termination; (b) Sections 6 ( IP & Feedback ), 7 ( Confidential Information ), 8.3 ( Warranty Disclaimers ), 9 ( Indemnification ), and 10 ( Limitation of Liability ); and (c) any other provision of this T&C that must survive to fulfill its essential purpose.

Exhibit A: Service Level Agreement

This Service Level Agreement (the "SLA") sets forth the service levels and support service obligations for the System as defined in the foregoing Boutique Mate Software as a Service Agreement ("Agreement") to be provided by Boutique Mate, LLC ("BM").

1. Definitions.

This SLA fully incorporates by reference the definitions set forth in the foregoing Agreement to which it is attached.

In addition to the capitalized terms defined elsewhere in this SLA, the following terms shall have the meanings ascribed to them below:

(a) "Correction" means a modification or addition that, when made in response to an Error, establishes full functionality and availability (and material conformity to the definition) of the System as set forth in the Agreement.

(b) "Downtime" means any Error or variation in the format or delivery of the System that affects the ability of the Provider to use the System in accordance with the Agreement.

(c) "Error" means the failure of any portion of the System to be fully functional and available and to perform in accordance with the Agreement, or any reproducible defect in a feature or function of the System that results in data loss, data corruption, abnormal termination of a program (i.e., a crash, quit, exit or other similar phenomenon), an infinite loop or "hang," and arithmetic or logic error or similar manifest malfunction as a result of any action or omission or circumstance within BM's control (including BM's agents and subcontractors). For purposes of assigning priority to handling of emails received, all Errors shall be classified as one of the following: (i) "Class 1 Error" means any condition that precludes core operation of the System due to suspected or actual Errors in the System, specifically, any issue affecting the encoding capability of the supplied device in a production environment; (ii) "Class 2 Error" shall mean any condition that precludes one or more of the major functions of the System from being performed due to suspected or actual Errors in the System; and (iii) "Class 3 Error" means any condition that precludes one or more non-essential functions of the System from being performed due to suspected or actual Errors in the System.

(d) "Workaround" means a procedure or routine that, when observed in regular operation of the System, eliminates, or mitigates the practical adverse effect of an Error in a commercially reasonable manner.

2. General.

The System shall be provided in a professional manner, consistent with industry standards. BM shall provide the Support Services on a 24 hour a day, 365 days a year basis.

3. Outages Schedule.

The System shall be fully functional, timely and accessible at least 90.00% of the time or better, as measured on a monthly basis, with no unscheduled Downtime to exceed six (6) hours in any calendar month (the "Service Level Requirement").

4. Reports; Response Time.

BM and Provider will jointly report all Errors in the System to the other upon detection of the Error. BM shall respond to Errors in the System as soon as such Error or outage is detected by or reported to BM, but in no event any later than the Response Time set forth in Section 6 below.

5. Provider Service.

BM shall provide timely customer service via email for errors during 9:00 a.m. through 6:00 p.m. Pacific Time, Monday through Friday.

6. Escalation Procedures.

BM shall provide Workaround or Correction for Errors in accordanceance with the timelines in the following table:

7. Scheduled Maintenance.

BM may take down the System for scheduled maintenance from time-to-time ("Scheduled Maintenance"). BM shall notify Provider seventy-two (72) hours in advance of any Scheduled Maintenance.