TERMS AND CONDITIONS OF THE E-COMMERCE MANAGEMENT SOLUTION AGREEMENT

These terms and conditions form part of the Agreement entered into by and between UPD Urns and the Client i.e. the funeral homes agreeing and consenting to the Agreement.

Both UPD Urns and Client may be referred to as a "Party" or collectively as the "Parties".

1. Management Solution.

• Software. Client, who is in the business of providing death care services wishes to have an online portal, by which Client's customers ("Customers") may purchase funeral-related items which include UPD Urns items and third-party products ("Products"), with orders fulfilled by UPD Urns.
  UPD Urns agrees to install, configure, manage, and fulfill orders for Products using its proprietary e-commerce shopping cart software (the "Software") on the terms and conditions set out hereunder. Client agrees to UPD Urns installing, configuring, managing and fulfilling orders of Products using the Software on the terms and conditions set out hereunder.
• Services. UPD Urns agrees to provide an e-commerce solution ("Portal") to sell Products to Client's Customers, which includes, but is not limited to:
  • providing a back-end Software solution;
  • taking and fulfilling Customer orders on behalf of Client;
  • providing payment processing;
  • customizing said Portal with Client's image and branding, "powered by" UPD Urns;
  • listing any and all Products as UPD Urns sees fit
• UPD Urns agrees to:
  • devote as much productive time, energy, and ability to the performance of its duties under this Agreement as may be necessary to provide the required services in a timely and productive manner;
  • communicate with the Client about progress UPD Urns has made in the development and rollout of the Software;
  • supply all tools, hardware, software, and manpower necessary to perform the services, except if UPD Urns work must be performed by using or relying on Client's resources.
• Customer Communications. The Client agrees, and gives permission to, UPD Urns to contact, communicate, and otherwise interact with Client's Customers for the purposes of fulfilling Product orders and advising Customers to contact UPD Urns via the Portal.
• Video. The Client agrees, and gives permission to, UPD Urns to exhibit live or pre-recorded Product demonstration videos on the Portal to provide Customers information about the Products.
• Product Listings. The Client agrees, and gives permission to, UPD Urns to list on, and remove from, the Portal any Products that UPD Urns in its sole discretion deems fit. After the end of each quarter, UPD Urns shall provide a notification to the Client listing all Products available on the Portal during the preceding quarter and the 100 most recent Products added to the Portal.

2. Payment.

• UPD Urns will not charge up-front costs for providing the management solution stated under Section 1. Client agrees that, by using UPD Urns Software to order Products, Customers will pay UPD Urns for purchased Products. After the end of each calendar month, UPD Urns shall provide a summary to the Client listing all Customer purchases of Products through the Portal during the preceding calendar month and all sums due to the Client in respect thereof, which shall be the sum of the amount payable for UPD Urns items and for the third-party products, both of which shall be calculated in the following manner:

   

  Amount payable for UPD Urns items:

  • UPD Urns will retain 20% ([please insert%] in case of busts) of sales price of all UPD Urns items sold through the Portal during preceding calendar month;
  • UPD Urns will retain UPD Urns Item Prices; and
  • The balance sales price of UPD Urns items minus applicable use and sales taxes on such items and value of UPD Urns items returned shall be paid to the Client by UPD Urns.

   

  Amount payable for third-party products:

  • The Client will receive a fixed percentage of the Net Sales Price of all third-party products sold through the Portal during preceding calendar month.

    Third-party product	Percentage of Net Sales Price

    For the purpose of this Agreement, Net Sales Price means sales price of third-party products minus use and sales taxes on third-party products and value of third-party products returned.
• Enclosed with UPD Urns delivered summary shall be a check for payment of the sums due from UPD Urns to the Client.
• For the purpose of this Agreement, UPD Urns Item Prices equals the total number of UPD Urns items purchased by Customers during the month multiplied by the prices for UPD Urns items quoted by UPD Urns to the Client and excludes any discounts on UPD Urns items.

3. Order Fulfillment and Returns.

UPD Urns shall take and process all orders via the Software. UPD Urns also agrees to fulfill all orders via its supply chain. UPD Urns shall not charge a separate shipping fee to the Customer, unless necessary for mitigating the costs of shipping irregular product, expediting shipping, or the like. UPD Urns shall provide returns to the Customer free of charge in accordance with its terms of use. In the event of a return, UPD Urns will return Customer's funds; if Client has already been paid a commission on said order, UPD Urns shall deduct said commission from the next month's payment, and shall include that information on the summary.

4. Intellectual Property Licenses.

• UPD Urns License. UPD Urns owns the intellectual property used in the Software, including, but not limited to, the images and descriptions of said Products. UPD Urns hereby agrees to license to Client, on a revocable, nonexclusive, non-sub licensable and non-transferable basis, its images, and product descriptions used in the Software. The Software used by UPD Urns to provide fulfillment services is, and shall always be, the property of UPD Urns, and UPD Urns hereby agrees to grant to Client a revocable, nonexclusive, non-sub licensable and non-transferable license to said Software.
• Client License. Client owns various pieces of intellectual property, including, but not limited to, names, brands, and copyrighted material. Client hereby agrees to license to UPD Urns, on a nonexclusive basis, that intellectual property which is necessary for UPD Urns to customize Portal for the Client.

5. Independent Contractor Relationship.

UPD Urns and Client are in an independent contractor relationship, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this Agreement. Neither Party may assume or create obligations on the other Party's behalf, except as otherwise noted in this Agreement. Parties shall comply with Federal, state, and local tax laws, social security acts, unemployment compensation acts, and workers compensation acts on their own. UPD Urns shall not hold itself out as an agent of Client, except insofar as it is necessary to effectively contact and communicate with Client's Customers.

6. Privacy Policy and User Agreement.

Client agrees that UPD Urns shall collect, use, store and disclose Customer and other information in accordance with its privacy policy. Client further agrees to comply with UPD Urns privacy policy with regards to all Customer and other data they receive. UPD Urns privacy policy can be found at https://updurns.com/privacy Client agrees that it has read and understands UPD Urns terms of use and further agrees that the arrangement between UPD Urns and the Customer shall be governed by the said terms of use, which can be found at https://updurns.com/terms-of-use.

7. Limitations on Liability.

The Client agrees that UPD Urns shall only be liable for providing Software, order fulfillment, and maintenance of Client's Portal. Client agrees that, to the maximum extent permitted by law, UPD Urns liability under this Agreement is limited, at the option of UPD Urns to order fulfillment and returns and refund of Product price or replacement of Product.

8. Assignment.

UPD Urns may assign or delegate its rights and obligations under this Agreement to a third party with the written consent of the Client, not to be unreasonably withheld or conditioned, and the assignee agreeing in writing to perform and honor all the terms and conditions contained in this Agreement. Nothing herein prevents or precludes UPD Urns from selling its business or entering into similar agreements with other funeral homes. Notwithstanding this Section 8, Client expressly agrees that UPD Urns, shall not require Client's permission, to assign this Agreement, and all rights, benefits, and obligations accrued hereunder, to its own subsidiaries, parent companies, sub-companies, partnerships, joint ventures, or other entities controlled or affiliated by or with UPD Urns.

9. Term and Termination.

• Term. This Agreement will become effective on the Effective Date, for a period of one year, except as otherwise stated in this Section. Either Party may terminate this Agreement, by providing the other Party written termination notice at least 30 days prior to the end of the one-year term. If written notice is not provided in the aforementioned manner, this Agreement will extend for an additional one year, with the same notice requirements for termination, in perpetuity.
• Termination.This Agreement may be terminated:
  • by either Party by 3working days written notice to the other Party, with or without cause at any time during the term of this Agreement; or
  • by either Party for a material breach of any provision of this Agreement by the other Party, if the other Party's material breach is not cured within 30 days of receipt of written notice of the breach.
• Effect of Termination. After the termination of this Agreement for any reason, UPD Urns shall promptly pay the Client for outstanding commissions due, less Products returns and other deductions. Immediately upon termination of this Agreement: (i) the Client shall have no rights to use the Portal and all licenses granted by one Party to the other Party under this Agreement shall cease; and (ii) all of the provisions of this Agreement will cease to have effect, save that Sections 7, 11, 13 and 20 of this Agreement will survive and continue to have effect in accordance with their express terms or otherwise indefinitely.

10. Other Activities.

During the term of this Agreement, UPD Urns is free to engage in other independent contracting activities.

11. Indemnification.

At all times after the Effective Date of this Agreement, the Client shall indemnify UPD Urns and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns (collectively the "UPD Urns Indemnitees") from all Claims that the UPD Urns Indemnitees may incur arising from:

• the Client's operation of its business;
• the Client's breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party; or
• the Client's breach of any of its obligations or representations under this Agreement. However, the Client is not obligated to indemnify UPD Urns if any of these Claims result from UPD Urns own actions or inactions.

For the purpose of this Agreement, "Claim" means a claim, action, proceeding, notice, demand, litigation, investigation, or liability, however it arises and whether it is present or future, fixed or unascertained.

12. Force Majeure.

A Party will not be considered in breach or in default because of, and will not be liable to the other Party for, any delay or failure to perform its obligations under this Agreement by reason of pandemics, epidemics, national health emergencies, total or partial lockdowns, fire, earthquake, work stoppages, communication failure, general failure of postal or logistics services, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party's reasonable control ("Force Majeure Event"). In the event a Force Majeure Event occurs, the affected party shall, as soon as practicable, notify the other party of the event and its impact on performance under this Agreement, and use reasonable efforts to resolve any issues resulting from the event and perform its obligations under this Agreement.

13. Choice of Law.

• The laws of the state of Virginia govern this Agreement, notwithstanding conflicts of law principles.
• The Parties will attempt to settle any claim or cause of action arising out of this Agreement or the subject matter hereof through consultation and negotiation in good faith.
• If the Parties fail to resolve any dispute in the aforementioned manner within thirty days after either Party notifies the other Party, then the dispute shall be resolved exclusively through final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, by one arbitrator, who will be appointed by the CEO of The Foresight Companies, L.L.C or their nominee.
• Each Party shall pay its own legal cost and expenses, provided however, that the Parties agree to share the cost of the arbitrator and of the arbitration equally.
• All such arbitration proceedings will be held in Manassas, Virginia.
• Subject to Section 13(B), both Parties consent to the personal jurisdiction of the state and federal courts in the state of Virginia including for obtaining any restraining order or injunction, where such relief is necessary.

14. Amendments.

No amendment to this Agreement will be effective unless it is in writing and signed by a Party or its authorized representative.

15. Counterparts; Electronic Signatures.

The Parties may execute this Agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument. This Agreement, and ancillary agreements thereto, and all related documents in connection with this Agreement are deemed signed: (a) when a Party's signature is delivered by facsimile, email, or other electronic medium, including .PDF files; or (b) when a Party signs and/or agrees to and accepts the Agreement electronically. The said modes of signatures or acceptance shall be treated in all respects as having the same force and effect as original signatures.

16. Severability.

If any one or more of the provisions contained in this Agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this Agreement, but this Agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this Agreement to be unreasonable.

17. Notices.

• Writing; Permitted Delivery Methods. Each Party giving or making any notice, request, demand, or other communication required or permitted by this Agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this Agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
• Addresses. A Party shall address notices under this Section 17 to a Party at the following addresses:
  • If to UPD Urns:
    Tyler Fraser
  • UPD Urns LLC
    2940 Blystone Lane
    Dallas, TX 75220
    tyler@updurns.com
  • If to the Client:
    Address on file
• Effectiveness. A notice is effective only if the Party giving notice complies with subsections (A) and (B) and if the recipient receives the notice.

18. Entire Agreement.

This Agreement constitutes the final agreement of the Parties. It is the complete and exclusive expression of the Partie's agreement about the subject matter of this Agreement. All prior and contemporaneous communications, negotiations, and agreements between the Parties relating to the subject matter of this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither Party was induced to enter this Agreement by, and neither Party is relying on, any statement, representation, warranty, or agreement of the other Party except those set forth expressly in this Agreement. Except as set forth expressly in this Agreement, there are no conditions precedent to this Agreement's effectiveness.

19. Headings.

The descriptive headings of the sections and subsections of this Agreement are for convenience only, and do not affect this Agreement's construction or interpretation.

20. Confidentiality.

UPD Urns and the Client agree, during the term of this Agreement and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the disclosing party, or to disclose to any person, firm, or corporation without the prior written authorization of the disclosing party, any Confidential Information received by one Party from the other Party. "Confidential Information" means any of the UPD Urns and Client's proprietary information, commercial and pricing information, information relating to Product sourcing, terms of this Agreement, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, Software, Portal, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed by one Party to the other Party either directly or indirectly. UPD Urns may also use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with Client personnel or authorized representatives or for any other purpose the Client may hereafter authorize in writing.