Brand Program Agreement

ATFLOWERS

This BRAND PROGRAM AGREEMENT (this “Agreement”) is made and entered into as of  the date on the insertion agreement (the “Effective Date”) by and between Padnick Group, LLC, a Delaware limited liability company (“Atflowers”) and (“Partner”) with reference to the following mutual understandings:

RECITALS

  1. Partner operates a retail business establishment (each a “Partner Location”);
  2. Atflowers has developed, owns and/or controls the intellectual property relating to certain Atflowers Brands (as defined below) in connection with the operation of Atflowers Branded Stores (as defined below);
  3. Atflowers and Partner desire to enter into an arrangement whereby Partner shall have the exclusive rights within the Protected Territory to prepare, sell and fulfill certain Atflowers Brands and products as more specifically set forth on Schedule A hereto (the “Licensed Products”), for delivery through Delivery Platforms as directed by Atflowers.

NOW, THEREFORE, for the mutual promises, representations and warranties and other good and valuable consideration set forth herein, the receipt and sufficiency of which is hereby acknowledged and shall not be disputed, the Parties hereby agree as follows:

AGREEMENT

  1. Definitions. In addition to other terms defined elsewhere in this Agreement, the following terms shall have the meaning set forth below:
  1. “Additional Fees” means any additional fees which Atflowers may implement from time to time upon written notice to the Partner, including but not limited to upfront fees, annual fees, retention fees or other fees collected by Atflowers to cover costs of operating the Atflowers platform, including delivery platform fees, commissions, or related charges collected by the Delivery Platform.
  1. “Applicable Law” means any applicable federal, state, local, or other law, rule, regulation, ordinance, or the like whatsoever, including, without limitation, all applicable health and safety and employment and labor laws.
    1. “Collected Revenue” means the amount collected by Atflowers or Partner from (i) the Delivery Platform for consumer’s purchase of the Products, excluding delivery fees, sales and similar taxes, or (ii) in the case of the Product Integration Model set forth in Section 2.4 below, by Partner from any in-person dining at the Partner Location(s).
  1. “Confidential Information” means any and all technical and non-technical information disclosed by Atflowers or its affiliates to Partner, or otherwise acquired by Partner in connection with this Agreement, including, without limitation: (a) the terms and conditions of this Agreement; (b) trade secrets; (c) business or operational information, ideas, techniques, business methods, business plans, know-how, processes, procedures, software programs, customer lists,

marketing plans, information regarding future products and/or services, specifications, vendors, business relationships, and (d) all other information that Partner knew or should have reasonably known under the circumstances was Confidential Information.

  1. “Deemed Aggregate Revenue” means the Collected Revenue for all Products sold by Partner during the prior month from a Atflowers Branded Store. Deemed Aggregate Revenue excludes any taxes collected from the consumer.
    1. “Delivery Platform” means the applicable third-party online food ordering or delivery platform
  1. “Intellectual Property” shall mean all worldwide rights in and to intellectual property, including without limitation rights to inventions, trade secrets, know-how, technology, research tools, data, software, improvements and rights of authorship and attribution, whether or not protected by patents or copyrights, and including, without limitation, any Recipes, trade secrets, vendor information, methods, processes, training techniques, patent applications, patents, trade secret rights, copyrights, trademarks, good will and other exclusive or non-exclusive rights pertaining to intellectual property owned or controlled by Atflowers.
    1. “License Fee” means an amount equal to (a) 7.5%, multiplied by (b) the amount of Deemed Aggregate Revenue (as defined above) achieved with respect to sales of Products from a Atflowers Branded Store.
    1. “Marketing Fee” means an amount equal to (a) 2.5%, multiplied by (b) the amount of Deemed Aggregate Revenue (as defined below) achieved with respect to sales of Products from a Atflowers Branded Store.
  1. “Network Partner” means a third party that has contracted with Atflowers to prepare Atflowers Branded Products.
  1. “New Products” means the products and services offered for sale (including recipes for such products or services, as applicable) by (a) Atflowers, including by any Atflowers Branded Store (but excluding the Partner Products) or (b) any Branding Partner other than Partner.
  1. “Partner Products” means collectively and as applicable, the products and services offered for sale (including recipes for such products or services, as applicable) on Partner’s menu from time to time.
  1. “Protected Territory” means an area within a two (2) mile radius of Partner’s

Location.

  1. “Atflowers Branded Products” means the products and services offered for sale (including Recipes for such products or services, as applicable) by (a) Atflowers, including by any Atflowers Branded Store or (b) any Network Partner.
  1. “Atflowers Brands” means all Intellectual Property, proprietary, and other property rights owned or used by Atflowers or its affiliates in connection with a Atflowers Branded Stores, and the products and services marketed and distributed thereunder.
  1. “Atflowers Branded Store” means a virtual store or restaurant marketed and distributed by Atflowers (or another Network Partner) under one or more Atflowers Brands on one or more

online ordering and delivery platforms that feature one or more third-party products and sometimes sold as a single unit.

  1. “Atflowers Fees” means the License Fee, the Marketing Fee and any Additional Fees which may be prescribed by Atflowers from time to time as set forth herein.
    1. “Recipes” means Atflowers’ proprietary recipes and food preparation knowledge for the Licensed Products.
  1. “Refunds” means refunds, credits, chargebacks, penalty charges, or any retrieval costs incurred by Atflowers in connection with an order issue (including, order delay or error). Refunds excludes any issue caused solely by Atflowers’s gross negligence or willful misconduct.
  1. “Partner Assets” means (a) Partner’s Intellectual Property (b) Partner’s name and description, (c) Partner’s photos or other images; (d) the nutritional and caloric information and data, in, to and for Partner Products.
    1. “White-label Products” means Partner Products that have been rebranded by Atflowers as part of the White Label model set forth in Section 2.2 herein, in accordance with this Agreement.
  • Partnership Models. Subject at all times to the License granted below and other restrictions and limitations herein, Partner shall have the right to prepare, package, sell and/or fulfill the Licensed Products by means of one or more of the various partnership models as set forth below, in each case at the direction of Atflowers as more specifically set forth next to each Licensed Product on Schedule A hereto or as may be communicated by Atflowers to Partner in writing from time to time during the Term:
    • Fully Integrated Model. Partner shall utilize all of and only the Atflowers

Intellectual Property relating to such Partner Product, including but not limited Atflowers’ Recipes, ingredients, vendors, process, and packaging and must strictly adhere to Atflowers instructions in connection with the preparations and packaging thereof. Partner shall prepare package and fulfill orders only through Delivery Platforms.

  • White Label Model. Partner shall utilize Partner’s own products, ingredients, recipes and processes (the “Partner Products”) to prepare the ordered Atflowers items but must package such products in the applicable Atflowers packaging.
    • Fulfillment Only Model. Partner shall utilize the Partner Products to prepare the ordered items but must package such products in non-branded plain packaging (no Atflowers or Partner Branding).
    • Product Integration Model. Partner shall, in addition to the requirements of any other model herein, include the Licensed Products on their own menu both for (i) delivery through Delivery Platforms and (ii) in person dining at the Partner Location.

3.                            Licensed Rights; Use of Marks, Quality Control.

  • License. Subject to the terms and conditions contained in this Agreement, and to all restrictions and limitations herein, Atflowers hereby grants to Partner a limited and specific license, during the Term and in the Territory to utilize the Atflowers Intellectual Property only to prepare, package, sell and/or fulfill orders of the Atflowers Brands included in the Licensed Products as set forth herein. Partner shall not utilize the Atflowers Intellectual Property in any manner not specifically authorized under

this Agreement, and all other rights not specifically granted herein, shall not be included in the License and are hereby expressly reserved by Atflowers.

  • Use of Marks. All uses by Partner of the Atflowers Intellectual Property, along with the trademarks, service marks and logos (collectively, the “Marks”) shall be in strict compliance with all rules established by Atflowers and in a manner designed to enhance the good will associated with the Intellectual Property. Partner shall only utilize the Marks in the exact form and design provided to Partner by Atflowers, and Partner shall not change, alter or modify the Marks without the prior written approval of Atflowers in each instance. Subject to the Atflowers approval rights herein, the Marks may be displayed in all advertising, promotional and marketing materials (“Advertising Materials”) whether in print or digital form, in a manner to be approved by Atflowers. All Advertising Materials shall be submitted to Atflowers for prior written approval before dissemination to the public. In the event Atflowers does not respond in writing to any approval request hereunder within ten (10) days of receipt of the request, Atflowers shall be deemed to have dis-approved of such use.
  • Quality Control. In order to maintain the standards of quality associated with the Marks, Recipes an d other Atflowers Intellectual Property, Partner shall strictly adhere to all quality standards communicated by Atflowers during the Term. In connection with any partnership model that requires Partner to prepare the Licensed Products utilizing the Atflowers Intellectual Property, Partner shall only purchase ingredients and supplies designated and approved by Atflowers. Partner shall not deviate from any Recipe in any manner without the prior written consent of Atflowers. Atflowers or any representative thereof shall have the right to inspect the Location from time to time during regular business hours, without prior notice, to ensure that Partner is maintaining all standards of quality associated with the Marks and the Recipes. To the extent that Partner does not adhere to quality standards hereunder, upon written notice by Atflowers to Partner detailing such non-adherence, Partner shall as soon as commercially reasonable, address and cure such non-adherence issues. If Partner fails to cure such non-adherence issues hereunder, such failure shall be deemed a material breach of this Agreement.
  • Partner hereby appoints Atflowers as its agent for the purposes of advertising, marketing, and facilitating the sale and delivery of Partner Products as set forth in this Agreement. Partner hereby grants to Atflowers an irrevocable, worldwide, royalty-free, non-exclusive right to (a) sell the Partner Products and (b) use any Partner Assets in connection with such marketing and electronic distribution of the Partner Products. Each Partner Product may be marketed and distributed by Atflowers, as an agent for Partner, in Atflowers’s sole discretion under any Atflowers Branded Store and at such price as Atflowers sets from time to time (the “Retail Price”). Atflowers may, but is not required to, use any of the Partner Assets in connection with marketing such Partner Product.
  • Partner shall promptly prepare, cook and package each Licnesed Product so ordered in the same manner as Partner prepares, cooks and packages sales of the same products by Partner directly, subject in all cases to such alterations with respect to preparation and packaging (including without limitation recipes and ingredients) as Atflowers may prescribe to Partner in writing from time to time. To the extent required by applicable law, Partner will provide all necessary ingredient, allergen and caloric information for each Licensed Product.
  • In addition to requesting Partner prepare, cook and package Licensed Products, Atflowers may request Partner prepare, cook and package New Products which are then sold by a Atflowers Branded Store. Partner shall promptly prepare, cook and package each New Product in accordance with Atflowers’s instructions. Atflowers may, but is not required to, use any of the Partner Assets in connection with such New Products. Atflowers hereby grants to Partner a revocable, royalty-free, non-exclusive right under Atflowers’s Intellectual Property in New Product, during the Term, solely to prepare, cook and package the New Product for the benefit of Atflowers. In the event Partner needs to purchase ingredients or other

supplies in order to prepare, cook or package any New Products pursuant to this paragraph and this Agreement, then Partner must purchase the same directly from the Atflowers or third party vendors identified to Partner.

  • Partner shall not change any of the Licensed Products (including with respect to the ingredients, composition thereof, or the Retail Price prescribed by Atflowers), add or remove products or services from Partner’s menu, or the Partner Assets, except with 30 days’ prior written notice to Atflowers. Partner is solely responsible for all Refunds. The parties agree that although Atflowers may operate the Atflowers Branded Store as a platform for the sale of Partner Products, Atflowers is merely an agent of Partner in connection with such sale.
  • Partner shall have the exclusive rights to the Licensed Products in the Territory, such that Atflowers will not allow another Network Partner to sell the Licensed Products within the Territory during the Term, provided however, that Partner understands and agrees that nothing herein shall restrict Atflowers from contracting with Network Partners to sell any other Atflowers Brands, Atflowers Branded Products or other products, or entering into the same or similar agreements with other Network Partners within the Territory.
  • Term; Termination. The initial term of this Agreement shall commence on the Effective Date and shall continue for one (1) year unless earlier until terminated in accordance with this Agreement (the “Initial Term”). Unless earlier terminated by either party as set forth herein, the Initial Term shall automatically renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”). Atflowers may terminate this Agreement for any or no reason with twenty four (4) hours’ notice to the Partner (email sufficient). Either party may terminate this Agreement in the event of a material breach by the other party, which remains uncured after thirty (30) days’ written notice of such breach. Upon termination of this Agreement, Partner shall (a) return all Atflowers property and Confidential Information in Partner’s possession, and (b) submit a final invoice to Atflowers. Outstanding payment obligations and Sections 1, 7, 8, 9, 11, 12, and 13-21 of this Agreement shall survive any termination of this Agreement.

5.                                Payments to Partner; Fees to Atflowers.

  • As consideration for the License and other rights granted hereunder, Partner shall pay the Atflowers Fees to Atflowers as set forth in this Agreement. The specific Atflowers Fees owed in connection with the products hereunder are more specifically set forth on Schedule A hereto.
    • Revenue from sales of the products through the Delivery Platforms may be collected by Atflowers, on behalf of Partner, or directly by Partner. Atflowers shall endeavor to have all payment for any Products sold by Partner pursuant to this Agreement to be paid directly to Atflowers by the Delivery Platforms, and Partner shall take whatever steps necessary to authorize and effect the same. All Collected Revenue from In-Person dining shall be collected by Partner directly. On a monthly basis, the party that received payment form the Delivery Platform shall pay to the other the Fees required herein. In the event Atflowers receives payment from the Delivery Platform, Atflowers shall pay Partner an amount (hereinafter, the “Partner Payment”) equal to (a) the Deemed Aggregate Revenue plus any taxes collected by Atflowers from the Delivery Platform (which Partner is responsible for paying pursuant to this Agreement), minus (b) Refunds; and (c) the Atflowers Fees (which Atflowers shall be entitled to receive and retain from the amounts payable to Partner). In the event the Partner receives the payment for the Products directly from the Delivery Platform or In-Person Dining, it shall remit the Atflowers Fees to Atflowers as set forth herein. The Partner Payment is exclusive of all applicable taxes. Partner shall be the seller with respect to the sale of any Partner Products, Licensed Product or New Product, and Partner agrees to be responsible for the payment of any taxes assessed in connection therewith, including, but not limited to, all sales, use, VAT or similar taxes. Upon Atflowers’s request, Partner shall provide Atflowers with copies of evidence of remittance to the appropriate agency(ies) of all sales, use, VAT and similar taxes. Subject

to the foregoing, each party shall be responsible for the payment of its own tax liability arising from this Agreement. Atflowers shall have the right to immediately terminate this Agreement in the event Partner failed (or there is a credible allegation that Partner failed) to pay any such taxes.

  • Payments by Atflowers. Promptly following the end of each month, the Atflowers shall pay the Partner Payment to Partner along with reasonable documentation of the Products sold during the prior month together with its calculation of the Partner Payment (the “Payment Notice”). Partner shall have five (5) business days to object to the Partner Payment received in any month or the calculations set forth in the Payment Notice. Absent written notice from Partner within this five (5) day period of any objection, they shall be deemed to have accepted the Partner Payment and waived any claims with respect to any deficiencies therewith. In the event of an objection by Partner within the 5 day period, the parties shall work together in good faith to resolve any such dispute.
  • Payments by Partner; Accounting Statement; POS. On a monthly basis, as promptly as possible but within ten (10) business days after the conclusion of the previous monthly period, Partner shall furnish to Atflowers an accounting statement (“Statement”) directly from Partner’s point of sale system, reflecting the latest information available from the previous monthly period as to the total sales of the Partner Products including specificity as to each Partner Product. Each Statement shall set forth a detailed account of the Calculation of all of the inputs in the calculation of the Atflowers Fee, including but not limited to, Deemed Aggregat Revenue, Taxes, Refunds, taxes and Delivery Platform Fees. Any delay by Partner in furnishing a given Statement shall constitute a material breach of this Agreement.
  • Inspection and Audit: Atflowers shall have the right up to four (4) times per year during the Term and one (1) time upon the expiration of the Term and for one (1) year thereafter in each case upon fourteen (14) days written notice to inspect the books and records of Company insofar as same pertains to the Products only, including Collected Revenue, calculation of Atflowers Fees and other matters hereunder. Not more than twice per year during the Term and once thereafter, Atflowers shall have the right to audit such books and records at Partner’s principal place of business, upon fifteen (15) calendar days’ prior written notice to Partner. The cost and expense of any such audit shall be borne by Atflowers, unless such audit reveals any underpayments by Partner to Atflowers in excess of five percent (5%) of the actual amounts due to Atflowers, in which event Partner shall pay for the reasonable documented costs and expenses of such audit. In the event of any underpayment being determined, then, without prejudice to or limitation of any of Atflowers’ other rights and remedies, Partner shall promptly pay to Atflowers the amount underpaid.
  • Operating Expenses: For the avoidance of doubt, Atflowers shall not be liable for any costs or expenses of Partner in connection with Partner’s performance under this Agreement or otherwise, including, without limitation, legal fees and court costs relating to operations; computer hardware and software acquisition costs; license fees and other maintenance and consulting fees; wages, salary and fringe benefits costs for employees; insurance premium payments; accounting, legal, and consulting fees, including fees related to preparation of tax returns, financial and tax audits, investigations and other claims; lease expenses and real estate obligations; equipment acquisition, lease and maintenance costs; product and supply costs; and utilities.
  • Right to Offset; Deduction. Without prejudice or limitation of Atflowers’ other rights and remedies, Atflowers shall have the right to withhold, deduct and offset any amounts it may owe to Partner hereunder for any shortfalls or other amounts owed by not paid by Partner to Atflowers hereunder.
  • Representations and Warranties by Partner. Partner represents and warrants to Atflowers that: (a) it has the full right, power and authority to: (i) enter into this Agreement, (ii) grant all licenses and other rights it has granted under this Agreement to Atflowers, and (iii) perform its obligations under this Agreement; (b) each Product shall be prepared with high quality ingredients in accordance with

all applicable food safety standards and regulations, and will conform to the samples to which Partner provided to Atflowers; (c) the Products are not and will not be adulterated or misbranded within the meaning of Applicable Law and will be merchantable; (d) the weights, measures, sizes, nutritional, allergen and caloric information (to the extent applicable), and other particulars stamped or printed on the Products and/or their containers or accompanying the Products on or in connection with all menus shall comply with all Applicable Laws and regulations; (e) without limiting the foregoing, the Partner Assets that depict, describe or analyze Products are accurate, correct and complete in all material respects; (f) the Products and Partner Assets do not and will not infringe upon any patent, trademark, copyright, publicity right, or other similar right of any other person; (g) entering into and performing under this Agreement will not cause Partner to violate any law, rule, regulation, third-party right, or contract by which it is bound; and (h) Partner will comply with all Applicable Laws in its performance of the Agreement, including, without limitation, all tax, consumer privacy and data protection laws.

  • Indemnification. Partner shall, at its sole expense, indemnify, defend and hold Atflowers and its parent, affiliates, and subsidiaries, and their respective employees, agents, directors, officers, shareholders, members, and representatives (collectively, “Indemnitees”) harmless from and against any and all losses, damages, liabilities, costs, and expenses (including attorneys’ fees and costs) (collectively, “Losses”) incurred in connection with any judicial or non-judicial claim, action, demand, suit or proceeding (collectively, “Claims”) brought against an Indemnitee insofar as such Claim is based upon allegations: (a) relating to the Partner’s business, the Products or the Partner Assets (including, without limitation, claims relating to food safety or taxes owed in connection with the sale of the Products); (b) of illness, injury, death, or damage as a result of the consumption or use of any Product; (c) risks against which Partner is insured or required to be insured against hereunder, pursuant to insurance policies carried by Partner which are in force or are required to be in force at the time of the loss or damage; or (d) that, if true, would constitute a breach of this Agreement by Partner. Partner may not settle or otherwise dispose of any Claim against an Indemnitee without Atflowers’ prior written approval. Partner hereby releases Atflowers, Atflowers’s employees and representatives, or anyone claiming by, under or through them, by way of subrogation or otherwise, for any loss or damage to Facility caused by or resulting from risks against which Partner is insured or required to be insured against hereunder, pursuant to insurance policies carried by Partner which are in force or are required to be in force at the time of the loss or damage, and to the full extent possible waives all rights of subrogation which may pass to its insurance underwriters. This Section 6 does not affect Atflowers’s liability for death or personal injury arising from its own negligence, nor its liability for any other liability which cannot be excluded or limited under applicable law.
  • Insurance. Partner, at its sole expense, agrees that throughout the Term, and for six months thereafter, to maintain: (a) commercial general liability insurance policy in the amount of at least $1,000,000 per occurrence and $2,000,000 in the annual aggregate; and (b) food borne illness insurance in such amounts as Atflowers shall require from time to time. All insurance maintained by Partner shall (i) name Atflowers as an additional insured under such policies; (ii) be in a form reasonably satisfactory to Atflowers, with an insurance carrier reasonably satisfactory to Atflowers; and (iii) be primary insurance and any insurance carried by Atflowers or its affiliates shall be excess insurance only. All such insurance shall be subject to modification or cancellation only upon ten (10) days’ notice to each certificate holder. Partner, promptly following Atflowers’s request, shall furnish Atflowers with a certificate of insurance in such coverage, such certificate to be in a form acceptable to Atflowers.
  • Confidentiality. Partner acknowledges that it may learn Confidential Information (as defined below) prior to or after the date of this Agreement. Partner agrees that it will hold in strict confidence and not disclose to any third party any Confidential Information and will use the Confidential Information for no purpose other than in connection with its business dealings with Atflowers and its affiliates. Partner shall protect the confidentiality of the Confidential Information with the same degree of care used to protect Partner’s confidential information, but no less than a reasonable degree of care and Partner shall limit access to the Confidential Information to only those of its employees,

lawyers and accountants having a need to know the Confidential Information and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein. Partner shall be responsible for any breach of this Section by its employees, lawyers and accountants. Partner may disclose the Atflowers’s Confidential Information if required by applicable law or regulation, provided that Partner, to the extent legally permissible, gives the Atflowers written notice of such required disclosure and reasonably assists the Atflowers in protecting, preventing or limiting such disclosure at the Atflowers’s expense. The Partner shall only disclose that portion of the Confidential Information as legally required for disclosure, and shall exercise all reasonable efforts to receive confidential treatment for such Confidential Information. The terms of this Section shall survive the expiration or termination of this Agreement.

  1. No Franchise Intended. The Parties agree and acknowledge that both the state and federal governments have laws, rules and regulations concerning the establishment of franchises. The rights granted to Partner hereunder have been drawn without any intent that the grant of such rights constitutes a franchise under applicable California or federal law. It is the intent of this Agreement merely to grant Partner a right to sell a product under a trade name and mark, and that the Location shall be independently owned and operated by Partner and Partner further acknowledges that there have been no representations or warranties whatsoever by Atflowers that the rights granted herein shall be profitable. In the event that either state or federal laws or regulations require that, in order for the Parties to be incompliance therewith, this Agreement shall be amended to conform to any such laws or regulations, then the Parties hereto agree that each will execute any such required amendments to this Agreement. If Atflowers desires to file a Notice of a Transaction Exempt under Corporations Code Section 31106, Partner shall fully cooperate with Atflowers and execute and deliver all reasonable documents necessary or appropriate to support such exemption. In the event that any government agency or person alleges or it is determined that this Agreement and the transactions subject hereto require compliance with state or federal laws or regulations regarding franchises, then either Party shall have the right, upon written notice to the other, to terminate this Agreement and each Party shall waive and release any and all claims it or he may have against the other arising out of any non-compliance.
  1. Exclusion of Damages; Limitation of Liability. COMPANY WILL NOT BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR SIMILAR DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE CAUSE OF ACTION UPON WHICH THEY ARE BASED, INCLUDING CLAIMS FOR LOSS OF GOODWILL OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. THE TOTAL, AGGREGATE LIABILITY OF COMPANY IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE COMPANY COMMISSION RETAINED BY COMPANY IN THE THREE MONTHS PRECEDING THE CLAIM.

12.             Intellectual Property.

  1. Partner acknowledges that, as between Partner and Atflowers, Atflowers owns all right, title, and interest, including all Intellectual Property, in and to the Confidential Information, Atflowers Brands, Atflowers Branded Stores, New Products (including, without limitation, any Recipes, trade secrets, vendor information, methods, processes, training techniques and otherwisewhich shall constitute a Atflowers trade secret), technology and systems underlying such Atflowers Branded Stores, and any suggestions, ideas, enhancement requests, feedback, recommendations and/or other data or information provided by Partner or any other party relating to Atflowers Branded Stores (collectively, the “Atflowers IP”). Partner will, and hereby does, assign any right, title, or interest in or to the Atflowers IP to Atflowers.
  1. Partner hereby grants to Atflowers, under Partner’s Intellectual Property, a perpetual, nonexclusive, paid-up, royalty-free, transferable, irrevocable and worldwide right and license, including the right sublicense, to use, modify, and otherwise exploit in any manner, Partner Products

and Partner Assets in connection with the sale and distribution of New Products, including future products, services or business derived therefrom.

  1. For clarity, Section 10.2 shall grant Atflowers the perpetual right to make (or have made) and sell any New Product (or variations thereof), and Atflowers shall have the right to license or disclose any Partner Intellectual Property to Partner in order to have such New Products (or variations thereof) made and sold. This Section 12.3 shall survive any termination or expiration of this Agreement.
  1. Applicable Law. This Agreement shall be deemed to have been made and entered into in the State of California, United States of America, and shall be interpreted, construed and governed by the laws of the State of California, applicable to agreements entered into and wholly performed in California. If any legal proceeding or action is necessary for the enforcement or interpretation of the terms of this Agreement, the Parties hereby agree that the courts of competent jurisdiction in the State of California shall have exclusive jurisdiction thereof and each Party hereby agrees to submit to the jurisdiction of such courts. In the event of any legal proceeding or action arising between the Parties from this Agreement, the prevailing Party shall be entitled to an award of reasonable attorneys’ fees and court costs in addition to and without limitation of any award of damages or other relief awarded by the applicable court or adjudicative body.
  1. Notices. Any notice or other communication permitted or required under this Agreement shall be given in writing and: (a) delivered in person; (b) delivered by an overnight commercial delivery service to the party to which such notice or communication is to be given, at the address set forth below their signature hereto or to such other address as either party shall have last designated by such notice to the other party; or (c) delivered via email if specified in the Agreement. Each such notice or other communication shall be effective: (i) if given by overnight commercial delivery service, one business day after such notice or communication is deposited with such service and (ii) if given by personal delivery, when actually received. All email notices to Atflowers shall be sent to [email protected]
  1. Assignment. Partner shall not by operation of law or otherwise, without Atflowers’s prior written consent, assign, hypothecate, mortgage, encumber or convey this Agreement or any interest in or under it. For the purposes of this Section any transfer of stock in a corporation, any transfer of an interest in a partnership, or a transfer of membership interest in a limited liability company, in which a transfer of control of the corporation, partnership or limited liability company occurs shall be deemed to be an assignment of this Agreement requiring the prior written consent of Atflowers. Atflowers may freely assign or otherwise this Agreement in whole or in part upon without written notice to Customer and freely engage subcontractors.
  2. Integration. This Agreement constitutes and contains the entire fully-integrated agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous oral or written agreements, with the exception of the Management Agreement. Each of the Parties acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as may be expressly set forth herein. This Agreement will be binding upon each party and its successors and permitted assigns.
  1. Relationship of the Parties. Nothing herein shall be deemed or construed to create any partnership, joint venture or any other entity or relationship of agency, fiduciary or employment between the Parties, and no act or omission of one Party shall be binding on any other party. Neither Party shall have the right to create or assume any obligation of any kind, express or implied, for or on behalf of the other party in any way whatsoever, and neither Party shall present itself as the agent or legal representative of the other Party for any purpose whatsoever.
  2. Waiver: No waiver of any default or breach of this Agreement by either Party shall be

deemed a continuing waiver or a waiver of any other breach or default, no matter how similar.

  1. Severability: If for any reason any provision or portion of this Agreement is adjudged by a court, arbitrator, or any other adjudicative body to be unenforceable, invalid, void or voidable, such adjudication shall in no way affect any other provision or portion of this Agreement or the validity or enforcement of the remainder of this Agreement, and the affected provisions or portions shall be modified or curtailed only to the extent necessary to bring this Agreement into compliance with applicable law.
  • Headings: The paragraph headings used in this Agreement are for convenience only and shall have no legal effect or significance whatsoever.
  • Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.