DATE OF LAST UPDATE: June 16, 2020

This COVID-19 Emergency Supply Chain Participation Agreement (this “Agreement”) is made and entered into by and between the account creator (“Participant”) and REFASHIOND OS Inc., a Delaware corporation with business offices at 114 John St, #956, New York, NY 10038 (“rOS”).  Each of Participant and rOS are a “Party” and together are the “Parties”.

WHEREAS, The Worldwide Supply Chain Federation (“TWSCF”), using its extensive supply chain industry connections, has initiated an Emergency Supply Chain service (the “ESC”) whereas TWSCF has asked rOS to lead and manage the ESC including onboarding participant organizations and vetting, technology and marketplace development, and implementation;

WHEREAS, Participant and its Affiliates engage in some aspect of the business of manufacturing, distributing, selling, purchasing, and transporting various items of personal protective equipment (“PPE”); and

WHEREAS, rOS engages in the business of designing, developing, distributing, marketing and selling software, systems and other solutions to help transform and optimize manufacturing and supply chain logistics.

NOW, THEREFORE, and in consideration of the mutual agreements, covenants and promises herein contained, it is mutually agreed and promised as follows:

1.     Definitions; Construction

1.1  Definitions. For the purposes of this Agreement, the following terms shall have the meanings assigned to them in this Agreement unless the context otherwise requires. 

1.1.1   “Affiliate” shall mean any corporation, company, or other entity which directly or indirectly controls, is under common control with, or is controlled by another entity.  An entity is considered an “Affiliate” hereunder only so long as such entity meets the foregoing definition.  For purposes of this Agreement, “control” means that more than fifty percent (50%) of an entity’s shares or other ownership interests are owned or controlled by the controlling person or entity. For purposes of this Agreement, TWSCF shall be considered an “Affiliate” of rOS.

1.1.2  “Confidential Information” shall mean all information of a confidential or proprietary nature disclosed by one Party to the other Party hereunder, including, without limitation the terms and conditions of this Agreement and any information relating to a Party’s products, customers, operations, processes, plans or strategies, technology, know-how, IPR (as defined below), market opportunities, and any other business affairs.

1.1.3 “Intellectual Property Rights” or “IPR” shall mean all patents, patent applications, utility models, designs, design rights, copyrights (and associated moral rights), trademarks, database rights, service marks, trade names, trade secrets, know-how, and any other intellectual property or proprietary rights whatsoever and wherever in the world existing, whether registered or unregistered, as well as applications for any such rights.

1.1.4  “rOS Platform” shall mean any software, systems and other solutions to help transform and optimize manufacturing and supply chain logistics for Participants in the ESC, including those that may have broader application to customers within and outside the apparel, fashion, beauty and related businesses. The “rOS Platform” shall include beta or similar versions and prototypes as well as any other related software or system products and solutions that are developed by, for or in association with rOS prior to and during the performance of this Agreement, or otherwise, whether or not contemplated on the date hereof.

1.2  Construction. In this Agreement the singular shall include the plural and vice versa and words importing any particular gender include the other.  Any schedules, attachments or exhibits to this Agreement shall be deemed part of this Agreement.

2.     rOS Platform and Participation Requirements

2.1  rOS Platform Development and Implementation.

2.1.1 rOS has been, and will continue, designing, developing, testing and delivering the rOS Platfom, all using commercially reasonable diligence and efforts.

2.1.2 As part of the rOS Platform process, rOS follows a vetting process to provide a general confirmation of participant identity, items of PPE authorized, certifications and official affiliation, and services offered. rOS may modify or amend its vetting process at any time, and rOS may engage third parties to provide higher levels of certification, provided that any third-party certifications are the responsibility of the third party providing such certifications and not rOS. Participant understands and agrees that, neither the vetting provided by rOS nor any certifications provided by third parties as part of the rOS Platform are intended as exhaustive and are not a substitute for Participant’s own policies, procedures and standards, and Participant takes full responsibility for ensuring that all products and services transacted through the rOS Platform conform to its own such policies, procedures and standards.

2.1.3 Participant acknowledges that rOS is not a health care professional or expert and that the rOS Platform is intended only as an informational and transactional marketplace for potential sellers, buyers and transportation services companies to interact and make their own commercial decisions. While rOS may take steps to make the rOS Platform function more efficiently and ethically, rOS provides no warranty or guarantee that a participant may not comply with relevant laws, rules and regulations, as well as PPE manufacturer requirements.

2.1.4 rOS may implement additional policies and terms of use for the rOS Platform at any time and from time to time and Participant’s continued use of the rOS Platform after receiving notice of such policies and terms of use (which notice may be by email) shall constitute Participant’s consent and agreement to such policies and terms of use.

2.2  Participation Requirements and Parameters.

2.2.1 The rOS Platform is a private platform and participation in the rOS Platform is at the sole and complete discretion of rOS, which discretion may be exercised with or without notice to Participant. Subject to Participant’s compliance with the terms and conditions of this Agreement and the initial and continuing approval of Participant by rOS, during the term of this Agreement, rOS grants to Participant a non-exclusive, limited, non-transferable, non-sublicensable right and license to access and use the rOS Platform, provided such use may also be subject to any terms and conditions of third parties (each an “rOS Platform Partner”) that rOS has engaged with to provide certain features and/or functionality of the rOS Platform. Any terms and conditions of such rOS Platform Partner’s are in addition to, and not in substitution for, this Agreement.

2.2.2 Participant acknowledges and agrees that rOS may assess an rOS Platform fee or may assess a fee on each transaction conducted within the rOS Platform in exchange for making the rOS Platform available to Participant and other participants. Participant’s continued use of the rOS Platform shall be subject to timely payment of any such fees or assessments as rOS shall instill from time to time.

2.2.3       Participant shall not (and shall not permit any third party to) use the rOS Platform in any way that: (1) infringes or violates any patent, trademark, trade secret, copyright, right of publicity or other proprietary right of any other person or entity; (2) breaches a contractual duty to any other person or entity; (3) makes any representation that Participant knows is false, misleading, untruthful or inaccurate; or (4) would be unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, unfairly competing, tortious, obscene, vulgar, pornographic, offensive, profane, contain or depict nudity, contain or depict sexual activity, violate any regulation or judicial or administrative order, or is otherwise inappropriate; in each case as determined by rOS in its sole discretion. Any breach of this paragraph by Participant shall entitle rOS to immediately suspend Participant’s usage of the rOS Platform, in addition to all rights and remedies under this Agreement and at law. In addition, Participant agrees that it will not alter or amend any information it provides in or through the rOS Platform that rOS has previously vetted unless and until rOS has specifically agreed to such alteration or amendment.

2.2.4 Participant represents and warrants that it has all corporate power to enter into this Agreement and that the person signing this Agreement on behalf of Participant has the requisite authority to do so. Participant further represents and warrants that it will comply with all applicable laws, rules and regulations, as well as restrictions and limitations imposed by PPE manufacturers, in its performance of this Agreement and its use of the rOS Platform.

3.     License of Marks; Relationship between the Parties

3.1  Neither Party grants the other Party any right or interest in the images, names and logos of the other Party, except as agreed by the Parties from time to time in writing. Notwithstanding the foregoing, during the term of this Agreement Participant grants to rOS, TWSCF and each rOS Platform Partner a limited, worldwide, non-exclusive, royalty-free license to use and display Participant’s name(s), trademark(s) and logos in the rOS Platform and/or on any website operated by any of such entities and in certain other sales and marketing contexts, all as related to Participant’s participation in the rOS Platform.

3.2  Other than the rights provided in Section 3.1 of this Agreement, neither Party shall, without prior consent of the other Party, in any manner publish or make known to any third party or the public in general that the Parties have entered into this Agreement or make any statement about the Parties’ relationship.

3.3  Nothing contained herein shall be construed to give either Party any authority to negotiate, settle, or compromise any claims or disputes, or to make any representations, agreements or commitments on behalf of the other Party.

3.4  Each Party certifies that it is engaged in an independent business and will perform its obligations pursuant to this Agreement as an independent contractor and not as the agent or employee of the other Party. This Agreement does not create a partnership, joint venture or similar relationship between the Parties.

4.     Intellectual Property Rights (IPR)

4.1  Except as expressly provided in this Agreement, no license of, or any other interest in, the IPR owned by a Party is granted to the other Party.

4.2  All IPR owned by a Party prior to the commencement of this Agreement shall continue to be the sole property of that Party. Notwithstanding anything herein to the contrary, and as between Participant and rOS, rOS shall own, and Participant hereby assigns to rOS, all right, title and interest in and to all designs, specifications, drawings or other intellectual property designed or developed by either Party hereunder and any and all IPR with respect thereto as any such IPR relates to the development, design, testing or implementation of any aspect of the rOS Platform.

5.     Confidentiality

5.1  Each Party and their respective Affiliates are allowed to share Confidential Information with their officers, directors, controlling shareholders, employees, and contractors solely on a need-to-know basis, provided such persons and entities are bound by duties of confidentiality no less restrictive than those contained herein.  Confidential Information of a Party or its Affiliates is proprietary to that Party and each Party agrees to maintain the same in confidence and not disclose the Confidential Information to any third party or use the same for any purpose other than as expressly permitted pursuant to this Agreement.

5.2  All limitations on use and disclosure of the Confidential Information in this Agreement shall continue so long as the Agreement remains effective and for a period of five (5) years thereafter, except that the commitment to confidentiality shall continue in perpetuity with respect to Confidential Information that is a trade secret.

5.3  The foregoing restrictions on disclosure and use of Confidential Information shall not apply (or shall cease to apply) to information which:

5.3.1 at the time of disclosure is or which after disclosure becomes part of the public domain other than by a breach of this Section;

5.3.2  the recipient can show was in its possession prior to disclosure;

5.3.3  is received from a third party without a known restriction on disclosing the same;

5.3.4  the recipient can show has been developed by or for the recipient at any time independently of the Confidential Information disclosed to it by the disclosing Party; or

5.3.5  the recipient is required to disclose by a judicial, legislative or administrative body, provided, however, that if the recipient receives such a request, the recipient will provide prompt written notice of such requirement to the other Party and will take reasonable steps to limit the scope of the required disclosure.

6.     Term and Termination

6.1 This Agreement shall commence as of the date first written above and, subject to the remaining provisions of this section, shall continue in full force and effect unless and until one Party provides the other Party with ten (10) days’ advance notice of termination.

6.2  In the event either Party materially breaches any term, condition, covenant, obligation or agreement contained herein, the non-breaching Party may give the breaching Party a written notice of such breach, and, if the breaching Party does not affect an adequate cure thereof within ten (10) days or upon such later date agreed to by the non-breaching Party in writing, the non-breaching Party may terminate this Agreement immediately with written notice of termination to the breaching Party. Despite such termination, the breaching Party shall be and remain liable to the non-breaching Party for damages or losses resulting from such breach to the extent provided for in this Agreement.

6.3  This Agreement may be terminated immediately by a Party upon the filing by or against the other Party of voluntary or involuntary petition for bankruptcy or financial reorganization or for any similar relief, the execution of an assignment by the other Party for the benefit of creditors, or the appointment of a receiver of the other Party for any reason.

6.4  The expiration or termination of this Agreement shall be without prejudice to the rights of either Party to payment or other claims for funds due or accrued, up to the date of termination of this Agreement. All payment obligations and the rights and obligations of the Parties that by their nature or terms survive the termination of this Agreement shall survive and continue in effect after any expiration or termination of this Agreement.

6.5  In the event of the termination or expiration of this Agreement, each Party shall promptly return to the other Party all documents, designs, specifications, materials, Confidential Information and other property belonging to the other Party.

7.     Warranty; Limitation of Liability

7.1  Warranty. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2.1 ABOVE, THE rOS PLATFORM IS PROVIDED “AS IS” AND rOS DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, HEREUNDER, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE ARISING FROM COURSE OF DEALING OR USAGE IN TRADE, AND ANY AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. rOS DOES NOT WARRANT THAT THE rOS PLATFORM WILL RUN UNINTERRUPTED OR BE ERROR-FREE.

7.2  Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR RELIANCE DAMAGES; OR (II) ANY DAMAGES EXCEEDING THE GREATER OF (A) THE AMOUNTS ACTUALLY PAID TO rOS IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, AND (B) $5,000. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OR IPR OBLIGATIONS HEREUNDER, OR EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR CRIMINAL ACT.

8.     Indemnification

8.1  Each Party shall, at its own expense, indemnify, defend, and hold harmless the other Party, the other Party’s Affiliates, and their respective officers, directors, controlling shareholders, employees, contractors and agents from and against any and all damages, losses, liabilities, fines, costs and expenses (including reasonable attorney fees and amounts paid in defense and settlement) arising out of third party claims, allegations, demands, actions, lawsuits, judgments, and/or decrees to the extent arising out of any:

8.1.1  Breach of this Agreement by the indemnifying Party;

8.1.2  Any grossly negligent or intentionally wrongful act, omission or misrepresentation by the indemnifying Party;

8.1.3  Use of the indemnifying Party’s IPR as authorized in this Agreement,

8.1.4  Alleged or actual infringement of any IPR of a third party resulting from, use of the rOS Platform (when rOS is the indemnifying Party), or use and/or sale of Participant’s products, services or information provided by Participant hereunder (when Participant is the indemnifying Party); and

8.1.5  Actual or alleged death or injury to any person or damage to property, whomsoever or whatsoever suffered, resulting or alleged to have resulted in whole or in part from actual or alleged defect(s) in any Participant products or services, or any information proved by Participant hereunder (when Participant is the indemnifying Party) or the functioning of the rOS Platform (when rOS is the indemnifying Party), including without limitation defects arising out of the improper manufacture or design of such products or services, the failure of such products or services, product markings, labeling, warnings or lack thereof, or any printed materials or written information supplied or that should have been supplied with each product or service no matter what theory of liability or responsibility.

8.2  Where a Party is required to indemnify the other Party pursuant to the above provisions, such Party: (i) shall, and shall have the sole and exclusive right to, assume the defense and settlement of any claim, suit, allegation, demand, action, dispute, or proceeding as to which such indemnification obligation applies, (ii) shall retain mutually agreed (such agreement not to be unreasonably withheld, delayed or conditioned) counsel at the indemnifying Party’s sole expense, and (iii) shall pay any damages assessed against or otherwise payable by the indemnified Party as a result thereof, provided that the indemnifying Party has received notice of the claim, suit, allegation, demand, action, dispute, or proceeding within two (2) weeks thereof or as soon thereafter as reasonably practicable.  The indemnified Party shall reasonably cooperate with the indemnifying Party in the resolution of any such matter.

9.     Governing Law; Arbitration

9.1  Governing Law. The validity and enforcement of this Agreement shall be determined under, governed by and construed in accordance with the laws of the State of Delaware, United States of America, without regard to the conflicts of law provisions thereof.

9.2  Arbitration. Other than with regard to the exceptions identified in this Section 9.2, each Party agrees to resolve any disputes arising under this Agreement through final and binding arbitration.

9.2.1  The American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the arbitration will be held in New York, New York, or any other location agreed to by the Parties.

9.2.2  Subject to any contrary rule of the AAA, the prevailing Party in any arbitration shall be entitled to payment of all arbitration fees.

9.2.3  Either Party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the rOS Platform, or infringement of Intellectual Property Rights without first engaging in arbitration.

9.2.4  Participant may bring any action against rOS only on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under this Agreement.

9.2.5  In the event that this agreement to arbitrate is found not to apply to any claim under this Agreement, and with regard to claims brought under Section 9.2.3, each Party agrees that any judicial proceeding will be brought in the federal or state courts of New York, New York. Each Party hereby consents to venue and personal jurisdiction there, and service of process through first class or overnight mail. Each Party agrees to waive its right to a jury trial.

10.  Miscellaneous

10.1  This Agreement and every term and condition hereof shall inure to the benefit of the Parties and shall be binding upon any successors and permitted assigns of the Parties. Neither Party may assign this Agreement, or any of its rights or obligations hereunder, to a third party without the prior express written permission of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement and its respective rights and obligations hereunder to any successor in interest in a corporate acquisition or other transaction or to a purchaser of all or substantially all of the assets of such Party.

10.2  All notices given or made under this Agreement shall be in writing and shall be deemed to have been duly given or made: (i) when hand delivered; (ii) three (3) business days after being mailed, postage prepaid, by registered or certified mail, return receipt requested, (iii) the next business day after such notice is delivered to an overnight delivery service of prominent national reputation (such as Federal Express or DHL), or (iv) when confirmation is received when delivered by electronic mail with receipt verification or a URL-based confirmation, in each case to the addresses listed in the opening paragraph of this Agreement, or to such other address as a Party may designate by written notice to the other Party delivered in accordance with this Agreement. Notwithstanding the foregoing, rOS may issue, update, amend, or otherwise modify any policies and terms of use of the rOS Platform, including but not limited to pricing charges, by email notice to Participant's provided email address and without the need to receive any type of delivery receipt.

10.3  If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, then such illegality, invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render illegal, invalid, or unenforceable any other provision of this Agreement, and this Agreement shall be carried out as if any such illegal, invalid or unenforceable provision were not contained herein. 

10.4  No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any subsequent or additional breach or condition, whether of like or different nature.

10.5  This Agreement (together with any other polices and/or terms of use issued by rOS) embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof. The Agreement may not be changed or modified except by written amendment executed by an authorized representative of each Party, provided, however that rOS may, in its sole and complete discretion, change, modify or amend any other polices and/or terms of use issued by rOS pursuant to the terms of this Agreement.

10.6  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each Party agrees that the delivery of the Agreement by facsimile shall have the same force and effect as delivery of original signatures and that each Party may use such facsimile signatures as evidence of the execution and delivery of the Agreement by all Parties to the same extent that an original signature could be used.

10.7  The headings used in this Agreement are for convenience only and are not to be considered in construing or interpreting any term or provision of this Agreement.