NEW PRODUCT MARKETPLACE TERMS OF SERVICE

These New Product Marketplace (defined below) Terms of Service (the “Agreement”) are hereby entered into by and between Gembah, Inc. (“Company”) and you for the provision of the services related to Company’s New Product Marketplace (the “Services”) described herein. Any supplement or change order entered into between or otherwise adopted by the Parties is incorporated herein and shall form part of this Agreement and govern the provision of all such Services. This Agreement shall commence on the date accepted by the Parties (the “Effective Date”) and shall continue until terminated in accordance with Section 11 (the “Term”).  You and Company are referred to individually as a “Party” and collectively as the “Parties.”  

1. Description of Services and Fees.
1. New Product Marketplace. Company has created a catalog of unique product designs coupled with product development offers from selected factories within Company’s network (each a “Factory”). This catalog shall be referred to as the New Product Marketplace or “NPM”. 
2. Subscription Fee, Reservation Fee and Product Offer. Upon receipt of payment of a subscription fee (the “Subscription Fee”), Company will provide you with access to high-level information related to new product designs in the NPM. In order to access the full research and product information related to a new product listed in the NPM (the “Product Offer”), you must pay a Reservation Fee for each Product Offer in the amount of five hundred U.S. dollars ($500). Upon receipt of a Reservation Fee for a Product Offer, Company shall provide you with (1) an introduction to the Factory; (2) exclusive access to the categories of information set forth on Exhibit A attached hereto and incorporated herein by reference, and (3) access to the Gembah platform so you can track your progress with respect to the Product Offer. 
3. Review Period. You will have two (2) weeks to review the Product Offer and decide whether to proceed (the “Review Period”). If you do not accept the Product Offer during the Review Period, then (1) the Product Offer will become non-exclusive and will return to the NPM, and (2) you will receive a Credit equal to the amount of your Reservation Fee for such Product Offer that can be used to reserve another Product Offer. If not used within 30 days his Credit will expire. If you choose to accept the Product Offer, then (A) you must provide Company with written notice of your acceptance during the Review Period; (B) the Reservation Fee becomes non-refundable, and (C) you agree to pay Company a service fee (the “Service Fee”) in exchange for exclusive access to the product described in the Product Offer (the “Product”) in an amount equal to either (1) an annual fee, or (2) a percentage of each Product purchase order (the “PO”). The amount of the Service Fee will be defined in the Product Offer. Your Service Fee payment obligations shall continue for a period of three (3) years after the first PO. The Service Fee shall apply solely to your access to the Product Offer, and shall not apply to any Product production costs.
4. Sample Orders and Production. You will have thirty (30) days from payment of a Reservation Fee to either (1) place a sample order with the Factory for the Product; and/or (2) enter into a PO with the Factory for Product production. If you fail to act in accordance with option (1) or (2) in the preceding sentence, then the Product Offer will become non-exclusive and will return to the NPM. Once you have placed a Product sample order, you will have an additional thirty (30) days to enter into a PO with the Factory for Product production. 
5. Annual Volume Commitment. Once you have entered into a PO with the Factory for Product production, you will be subject to annual volume commitment (“Annual Volume Commitment”) in an amount defined in the Product Offer. If you fail to meet the Annual Volume Commitment, then the Product Offer will become non-exclusive and will return to the NPM.
6. Retraction of Product Exclusivity. 
1. Failure to Meet Product Milestones. Your failure to meet any one (1) of the milestones listed in Sections 1(c) through 1(e) above, or in Section 8 below, shall result in a loss of Product exclusivity, and the Product Offer will be returned immediately to the NPM. 
2. Communication with Factory Outside of Company Platform. Any and all communication between you and the Factory must take place on the Company platform. Your failure to comply with this subsection after one (1) warning from Company shall result in loss of Product exclusivity, and the Product Offer shall be returned immediately to the NPM.
3. Failure to Pay Additional Design Modification Fees. Any modifications to the Product design will incur additional fees, which shall be provided to you in a separate proposal. Your failure to pay the additional fees for your requested Product design modifications upon receipt of invoice shall result in a loss of Product exclusivity, and the Product Offer will be returned immediately to the NPM. 
2. Payment of Fees.  You agree that any and all fees set forth herein shall be due upon your receipt of an invoice for those Services performed by Company in accordance with this Agreement. You agree to pay all Product sampling, molding, tooling and other similar costs and expenses directly to the Factory. All undisputed amounts invoiced to you that remain unpaid after thirty (30) days shall accrue interest at a rate of one percent (5%) per month until paid. Itemized invoices shall be e-mailed to the address associated with your account.  Failure to timely pay any amount properly invoiced shall result in the termination of your Services.
3. Warranties.  Company represents and warrants that: (a) it has the right and authority to enter into and perform the Services contemplated by this Agreement; (b) there shall be no material decrease in the Services during the Term; and (c) the Services shall be performed in a workmanlike manner in conformance with generally accepted industry standards.  THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, AND COMPANY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED.
4. Indemnification.  You agree to release, defend, indemnify and hold Company, its affiliates, and its and their owners, members, managers, shareholders, directors, officers, employees, agents, and contractors harmless from and against any and all losses, damages, liabilities, penalties, claims and judgements of any kind or character arising either directly or indirectly from the performance (or nonperformance) of the Services, except where such claims are caused solely by the gross negligence or willful misconduct of Company or Company’s breach of Section 3.
5. Limitation of Liability.  Except for your indemnification obligations under Section 4, or breach of Section 7 or Section 8, no Party to this Agreement shall be liable to the other Party for any indirect, special, consequential, or punitive damages resulting either directly or indirectly from the performance (or non-performance) of the Services.  Notwithstanding anything to the contrary in this Agreement, Company’s liability under this Agreement is limited to the amount you have actually paid for the Services. 
6. Amendments to Terms.  This Agreement may only be amended by a written amendment signed by authorized representatives of the Parties. 
7. Proprietary Information.  Neither Party shall be entitled to use the other Party’s operational, technical, business and/or financial information (collectively, “Proprietary Information”) except to the extent its use is required for the performance of the Services; and neither Party shall disclose any Proprietary Information or details of the Services to any third party, except to the extent that such disclosure is required to perform the Services and the third party agrees to keep such Proprietary Information confidential.  All specifications, designs and technical data, reports, blueprints, drawings, schematics, patterns, tooling prototypes, any products produced but not delivered, etc. (the “Service Documents”) prepared by Company or on behalf of Company as a result of its Services shall be your property and shall be released to you upon: (i) the completion of the Services; and (ii) timely payment of all fees due hereunder.  Service Documents shall not include any information, procedures, know-how, technology or other intellectual property owned or created by Company prior to the effective date of this Agreement or otherwise developed by Company independent of the Services. All Service Documents and any other information or materials, whether or not furnished by you, not already in the public domain shall remain your Proprietary Information and shall not be disclosed to any third party without your prior written consent. Notwithstanding anything herein to the contrary, you acknowledge and hereby consent to the use by Company of all non-Proprietary Information.  Such non-Proprietary Information shall not be considered “Work for Hire” under applicable U.S. Copyright Laws.
8. Non-circumvention. All Product Offers are exclusive to the Factory (as defined in Section 1(a)). You agree that during the Term and for one (1) year thereafter (the “Period”):  (a) you will work only with the Factory on a Product Offer, and (b) you will not directly or indirectly employ, hire, contract or otherwise engage, solicit, or recommend any other factory on any Product Offer that has been provided to you under this Agreement.  The actual damages that would be sustained by Company as a result of breaching this Section 8 are uncertain and difficult to ascertain.  Therefore, you agree that, in the event of such a breach, (x) you shall, immediately upon written demand, pay Company fifty thousand and No/100 dollars ($50,000.00), in addition to any legal costs and expenses necessary to enforce this Section 8, as liquidated damages for such breach, and (y) you will lose Product exclusivity, and the Product Offer shall be returned immediately to the NPM.  You acknowledge that this sum is a reasonable approximation of the damages likely to result from the breach and represents liquidated damages rather than a penalty for such breach.
9. Non-solicitation. During the Term of this Agreement, and continuing for the Period, you shall not, either directly or directly recruit, engage, or otherwise solicit for employment any person employed by Company, whether or not they participated in the performance of Services.  Nothing in this Section 9 shall prohibit a Company employee from responding to public employment announcements, posting or advertisements, provided such response has not been prompted by you to intentionally circumvent this Section 9.
10. Independent Contractor.  Company shall be an independent contractor with respect to the Services.
11. Term and Termination.  You may stop using the Services at any time; provided, however, that your non-use will have no impact on any rights or obligations that accrue prior to such discontinuance.
12. Rebates and Kickbacks.  No Party or affiliate thereof, shall pay any illegal or otherwise improper commission, rebate, fee, or other remuneration to any employee, representative or agent of the other Party, in connection with the Services. 
13. Import/Export Compliance.  Each Party shall comply with all applicable import, export laws and regulations, including, without limitation, those of the Export Administration Regulations of the U.S. Department of Commerce, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.
14. Waiver.  If Company does not act in the event you fail to comply with this Agreement, such inaction on the part of Company shall not be construed as a waiver of such breach and all rights of Company pursuant to this Agreement shall remain in full force and effect. 
15. Applicable Law.  THESE TERMS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PROVISIONS.  Any judicial proceeding brought hereunder shall be brought exclusively in Travis County, Texas.  Each Party hereby consents to the jurisdiction of such court and waives any defense or objection to such jurisdiction and/or venue. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
16. Entire Agreement.  This Agreement is the entire agreement between the Parties and supersedes all prior and contemporaneous negotiations, understandings, and amendments between the Parties concerning the performance of the Services.