Fourth Floor – MERCH PROCUREMENT AGREEMENT – TERMS & CONDITIONS

The Supplier shall be deemed to have accepted these terms and conditions by accepting the Purchase Order. Defined terms are in clause 13 (Interpretation) of these Terms & Conditions

1. KEY TERMS

1.1 Services. Supplier agrees to provide the Services under this Agreement. If the supplier has provided any Services before any Statement Start Date, they will also be governed by this Agreement.

1.2 Statement of Work. The parties can agree one or more Statements of Work regarding specific work. Once a Statement of Work is signed by both parties, it will start on its ‘Statement Start Date’ and legally form part of this Agreement. If there is a dispute or discrepancy between what the Terms & Conditions say and what a Statement of Work says, the Terms & Conditions will prevail. If the parties for any reason do not enter into a Statement of Work regarding any Services, those Services will nonetheless be governed fully by this Agreement unless the parties agree otherwise in writing.

2. SUPPLIER’S OBLIGATIONS

2.1 General. Supplier is free to decide how to provide the Services but generally Supplier agrees to: (a) perform the Services to the best of his/her/its ability with all reasonable skill and care and in accordance with best practice in his/her/its industry; (b) act in accordance with all relevant laws and regulations; (c) comply with Fourth Floor’s reasonable requests; (d) create Products that are of quality and standard equal to best industry practice; and (e) keep Fourth Floor reasonably informed about progress of the Services (in a manner/format requested by Fourth Floor and agreed with Supplier).

2.2 Product Production. Fourth Floor and Supplier will mutually agree the design and content of the Products and its packaging. Supplier will be responsible for and bear the costs of the manufacture and production of the Products. Supplier will ensure the labelling of the Products contains all legally required information.

2.3 Products Fulfilment and Distribution. Supplier will be responsible for and bear the cost of the fulfilment of the Products to a specified warehouse, unless different terms are agreed and stated in the Purchase Order.

3. FOURTH FLOOR’S OBLIGATIONS

3.1 Store. As between the Fourth Floor and Supplier, the Fourth Floor will be responsible for: (i) the management of the Store, including the managing customer payments for the Products; and (ii) any customer queries about the Products.Product Refunds. Refund requests from customers will be taken on a case by case basis. If there is a recurring issue with products in the order, Fourth Floor has the right to request a refund for the faulty stock from the Supplier. The cost of any stock returned to the Supplier will be reimbursed to Fourth Floor.

4. INTELLECTUAL PROPERTY TERMS

4.1 Fourth Floor Property. Supplier acknowledges that this is a ‘work for hire’ matter and accordingly: (a) Fourth Floor will be the sole and exclusive owner of any and all Services, the Deliverables, the Products, all Intellectual Property Rights, exploitation rights and economic rights in them (together the "Fourth Floor Property"), whether or not they are stated in a Statement of Work, from their creation; and (b) that Supplier will have no rights or interest in Fourth Floor Property whatsoever.

4.2 Transfer. Therefore, Supplier assigns (by way of future assignment where necessary) to Fourth Floor, absolutely with full title guarantee any and all right, title and interest it has or may have from creation in Fourth Floor Property including without limitation the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of Fourth Floor Property whether occurring before, on, or after the date of this Agreement. For the avoidance of any doubt, this will extend to any historic and future Services provided by Supplier to Fourth Floor. Supplier waives and releases any claim regarding moral, personal, publicity or other similar rights which it may have regarding Fourth Floor Property anywhere in the world. Supplier will take any steps required by Fourth Floor to ensure Fourth Floor’s full ownership and unencumbered use of Fourth Floor Property. If for any reason Fourth Floor Property is not assignable to Fourth Floor then Supplier hereby grants to Fourth Floor an exclusive, royalty-free, permanent, irrevocable, sub-licensable, transferable and worldwide right and licence over Fourth Floor Property and agrees not to carry out any exploitation, usage or enforcement of the same without Fourth Floor’s express written consent.

4.3 Fourth Floor Licence. Fourth Floor grants to Supplier a limited, worldwide, terminable, sub-licensable and non-exclusive licence during the Term to use, copy, modify and create derivative works from Fourth Floor IP for the purposes of fulfilling Supplier’s obligations under this Agreement.

4.4 Supplier Licence. Supplier grants to Fourth Floor a limited, worldwide, terminable, sub-licensable and non-exclusive licence during the Term to use, copy, modify and create derivative works from the Supplier IP for the purposes of fulfilling Fourth Floor’s obligations under this Agreement. The licence will survive the termination or expiry of the Agreement in respect of any existing Products, its packaging and marketing materials (including without limitation any Fourth Floor YouTube videos).

4.5 Reservation of Rights. All rights in the Services, Products, its packaging and Fourth Floor IP not expressly granted or licensed to Supplier are reserved to Fourth Floor. For avoidance of doubt, Supplier is only granted rights under this Agreement for Fourth Floor IP for the purpose of the Services.

5. FINANCIAL TERMS

If applicable, the parties will agree Payment Terms in a Statement of Work. All amounts are stated exclusive of VAT. The parties will be responsible for payment of their own taxes and bank charges in respect of the Services and this Agreement. If Supplier owes any amounts to Fourth Floor, then Fourth Floor can set them off or deduct them from any amounts which Fourth Floor owes Supplier.

6. RISK AND TITLE

6.1 Property. Property and title in the Products vests in Fourth Floor on payment of the fees set out in the Payment Terms. Supplier will ensure that: (a) Supplier and any subcontractors or partners acting on its behalf will hold the Products as Fourth Floor’s fiduciary agent and bailee; (b) Supplier and any subcontractors or partners acting on its behalf will keep the Products separate from those of third parties and properly stored, protected, insured and identified as Fourth Floor’s property; (c) Supplier and any subcontractors or partners acting on its behalf will be entitled to resell or use the Products in the ordinary course of its business (unless Fourth Floor revokes such entitlement in writing); (d) Fourth Floor may enter any premises where the Products are stored to inspect them; and (e) 6.1.5 Fourth Floor may at any time require Supplier to deliver up the Products to Fourth Floor and, if Supplier fails to do so, to enter upon any premises of Supplier or any third party where the Products are stored and repossess the Products.

6.2 Securities. Supplier will not pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of Fourth Floor, but if Fourth Floor does so all monies owing by Supplier to Fourth Floor will (without prejudice to any other right or remedy of Fourth Floor) immediately become due and payable and Fourth Floor may immediately at its discretion terminate this Agreement.

7. CONTRACT TERM AND TERMINATION

7.1 Term. This Agreement starts from the first Statement Start Date until all Statements of Work have been terminated or expired, or if the parties agree otherwise in writing.

7.2 Fourth Floor’s Termination Rights. Fourth Floor may terminate this Agreement immediately without notice or pay in lieu of notice and with no liability to make any further payment to Supplier (except any amounts that accrued before and are independent of the termination of the Agreement) if Supplier: (a) commits a material breach of its obligations under this Agreement (or any number of individual breaches which in Fourth Floor’s reasonable view amounts to a material breach) and if the breach is capable of remedy, fails to remedy it during the period of 20 (twenty) days starting on the date of receipt of notice from Fourth Floor requiring it to be remedied; (b) is in Fourth Floor’s reasonable opinion negligent and incompetent in the performance of the Services; (c) fails to perform substantially any or all of his/her/its obligations under this Agreement in a manner satisfactory to Fourth Floor; (d) agrees to carry out work which in the reasonable opinion of Fourth Floor gives rise to a conflict of interest with or presents a risk to Fourth Floor’s business; (e) is guilty of any fraud or dishonesty or acts in any manner which in Fourth Floor’s opinion is likely to bring Supplier or Fourth Floor into disrepute or is materially adverse to Fourth Floor’s interests; or (f) goes bankrupt or insolvent or enters bankruptcy or other insolvency proceedings (whether on his/her/its own motion or by the order of a court of competent jurisdiction), or any steps are taken to achieve the same. In addition, Fourth Floor can terminate this Agreement with immediate effect for any or no reason on 30 (thirty) days prior written notice to Supplier..

7.3 Mutual Termination Rights. Either party can terminate this Agreement on 30 (thirty) days prior written notice to the other party (“Notice Period”) if at that time of the termination notice and during the Notice Period there are no outstanding Statements of Work or payments and Supplier has fully delivered all Services to Fourth Floor.

7.4 Effect of Expiry or Termination. All rights and obligations of the parties will cease to have effect immediately upon termination or expiry of this Agreement except for: (a) any and all accrued rights and obligations of the parties at the termination date; (b) the Fourth Floor at its sole discretion may elect to buy any remaining Products at cost price or be destroyed; and (c) those rights and obligations of the parties under this Agreement which are expressed to survive termination and any provisions necessary for the interpretation and enforcement of it. If the Agreement is terminated for any reason, Supplier must immediately return to Fourth Floor all Confidential Information of Fourth Floor, the Fourth Floor Property and all other Fourth Floor property, assets and materials in his/her/its possession or control or, at Fourth Floor’s election, destroy them permanently, not retain any copies, versions or extracts and (on request) provide a signed certificate confirming the same. Termination of this Agreement by Fourth Floor will immediately terminate all incomplete Statements of Work.

8. LIABILITY

8.1 Supplier Warranties. Supplier warrants and represents to Fourth Floor that: (a) it has not given and will not give permission to any third party to use the Services or Intellectual Property Rights in them; (b) it is unaware of any use by any third party of any of the Services or Intellectual Property Rights in the Services; (c) the use of the Services or the Intellectual Property Rights in them or any Confidential Information by Fourth Floor will not infringe the rights of any third party; (d) the Services will be his/her/its own, original work and not been copied wholly or substantially from any other source; (e) any other materials or assets to be created by Supplier will be of satisfactory quality, fit for Fourth Floor’s purposes, free from defects in material and workmanship and work fully in accordance with Fourth Floor’s requirements and Fourth Floor’s products.

8.2 Mutual Warranties. The parties warrant and represent to each other that they have all necessary power to enter into this Agreement and that they are not a party to any arrangements which could reasonably be expected to hinder or prevent the performance of their obligations under this Agreement.

8.3 Liability. The maximum and total aggregate liability of Fourth Floor in connection with this Agreement will be an amount equal to the payments from Fourth Floor actually received by Supplier under this Agreement at the date of any formal proceedings brought against Fourth Floor. In no event will Fourth Floor be liable to Supplier for any loss of earnings, profits, charges or expenses, loss of data or any corruption or loss of information, loss of business opportunity, reputational loss or harm, or any special, indirect or consequential or punitive loss or damage or disruption of any kind, in any case, whether based on breach of contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise whether or not the relevant party has been advised of the possibility of such damage. Nothing in this Agreement purports to limit or exclude any party’s liability for fraud, fraudulent misrepresentation or wilful misconduct or exclude or limit liability for death or personal injury caused by that party’s negligence or to the extent otherwise not permitted by law.

8.4 Indemnity. Supplier will indemnify and hold harmless Fourth Floor and its officers, directors, employees and agents (and keep them indemnified and held harmless) on demand from and against any and all damages, claims, suits, actions, judgments, contributions, fines, penalties, costs and expenses whatsoever, including legal fees and costs, arising out of: (i) the Services or Deliverables; (ii) any actual or alleged unauthorised use by Supplier of the Fourth Floor Property or Fourth Floor’s Intellectual Property Rights or Confidential Information; (iii) any actual or alleged claim by a third party of Intellectual Property Rights infringement or unauthorised Confidential Information usage in connection with Services or Deliverables; (iv) any product liability claims regarding the Products; or (v) any challenge by HM Revenue & Customs or other appropriate regulator or tax authority regarding the employment or tax status of Supplier; (vii) any claim based on employment and/or worker status brought by Supplier (if applicable); and/or (viii) any material breach by Supplier of the terms of this Agreement.

8.5 Notification of Indemnity Claims. Supplier will promptly notify Fourth Floor as soon as it becomes aware of any third party claims against Fourth Floor under clause 7.4 (Indemnity) above, following which Fourth Floor may elect that Supplier undertake and conduct the defence of any such claim at its expense and (to the extent practicable) in Fourth Floor’s name. Supplier will make no attempt to settle any such claim in whole or in part without Fourth Floor’s prior written consent.

9. SUPPLIER RELATIONSHIP

Nature of Consultancy. This Agreement is a contract for services and not a contract of employment. Supplier is an independent contractor of Fourth Floor. Supplier will not: (a) hold out to be an officer, employee, worker, agent or partner of Fourth Floor; (b) have authority to incur any expenditure by Fourth Floor or otherwise hold out as having authority to bind Fourth Floor in any way (unless authorised by Fourth Floor in writing). Supplier acknowledges it is not entitled to employee rights or benefits (including but not limited to sick leave, holiday entitlement, other employee benefits or maternity/paternity leave).

10. REGULATION

10.1 Data Protection. Supplier agrees to comply with the Data Processing Agreement when handling personal data. Failure to comply with the data protection policy or any of the policies listed in this clause may be dealt with under our disciplinary procedure and, in serious cases, may be treated as material breach of this Agreement.

10.2 Anti-Bribery. Supplier will: (a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the UK’s Bribery Act 2010; and (b) not engage in any activity, practice or conduct which would constitute an offence under the UK’s Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK. Breach of this clause 10 (Regulation) will be deemed a material breach of this Agreement.

11. CONFIDENTIAL INFORMATION

Confidential Information. Each party undertakes that it will not at any time use or communicate to any person, except to their professional representatives or advisers or as required by law, any Confidential Information of the other party which may come to its knowledge. Each party will use reasonable endeavours to prevent any publication or disclosure concerning such matters. Neither party will during the Statement Term either directly or indirectly publish any opinion, fact or material on any matter connected or relating to the business of the other party (whether confidential or not) without prior written approval of that other party.

12. GENERAL. (i) This Agreement is a commercial bargain agreed on an arms’ length basis following negotiation by the parties. Each party has had the opportunity for legal advice prior to executing this Agreement. (ii) This Agreement does not create any exclusive relationship between the parties nor any partnership, joint venture, employment or agency between them. (iii) No failure or delay by a party to exercise any right under this Agreement or at law will be a waiver of that right. (iv) Any variation of this Agreement must be in writing and signed by the parties. (v) No assignment, sub-contracting or transfer of this Agreement by Supplier is possible without Fourth Floor’s prior written consent. (vi) Only a party to this Agreement can enforce it (whether under the UK’s Contracts (Rights of Third Parties) Act 1999 or otherwise). (vii) If any part of this Agreement is found to be invalid or unenforceable, that will not affect the rest of the Agreement. (viii) This Agreement can be executed in multiple counterparts. (ix) Any notices under this Agreement must be in English and sent to the other party’s registered office. (x) This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between them regarding its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. Nothing in this Agreement will limit any liability for fraud. (xi) Each party is responsible for its own costs regarding this Agreement. (xii) This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England. The parties agree that the courts of England will have exclusive jurisdiction to settle any dispute or claim in connection with this Agreement.

13. INTERPRETATION

This clause 13 (Interpretation) explains the meaning of the most frequently encountered or important terms in this Agreement:

“Agreement” means this agreement, any and all Statements of Work and any schedules and annexures to them.

“Confidential Information” means this Agreement and any information or materials in whatever form which is disclosed by one party to the other party and which would be regarded as confidential by a reasonable business person including all business, technical, statistical, financial, marketing and personnel information, customer or supplier details, know-how, designs, trade secrets, creative information or materials or software of the disclosing party or any information that is identified as "Confidential".

“Data Processing Agreement” means the processing agreement between Fourth Floor Limited and Supplier Ltd.

“Deliverables” means any product or work (including but not limited to drawings, documents, designs, photos, graphics, artwork, models, videos, logos, typographical arrangements, software, source code and object code, audio, audiovisual, mechanics, user interface, text, characters, story, plot, setting and all other materials in whatever form) created or carried out by Supplier for Fourth Floor as part of the Services, whether in physical or digital form of any kind, and including preparatory materials, drafts, work in progress and completed versions, modifications and updates, including without limitation the work detailed in a Statement of Work.

“Intellectual Property Rights” means any and all copyright, trade marks, service marks, trade dress, brand names, logos, goodwill, get up, trade, business or domain names, design rights, database rights, patents, rights in inventions, know-how, trade secrets and confidential information, rights in databases, rights in computer software, moral rights, publicity rights, performance rights, synchronisation rights, mechanical rights, publishing, rental, lending and transmission rights and other intellectual property and exploitation rights of a similar or corresponding character which may now or in the future subsist in any part of the world, in all cases whether or not registered or registrable including all granted applications and all applications for registration, division, continuation, reissuance, renewals, extensions, restorations and reversions regarding any of the same.

“Payment Terms” has the meaning set out in a Statement of Work.

“Supplier IP” means any pre-existing Supplier Intellectual Property Rights.

"Services” means the services provided by Supplier to Fourth Floor (including provision of any Deliverables) as may be set out in a Statement of Work.

“Statement of Work” means any statement of work between the parties in the form annexed to this Agreement, as varied or amended from time to time, and “Statements of Work” means all of them.

“Statement Start Date” means the start date of a Statement of Work as stated at the top of it.

“Statement Term” means the duration of a Statement of Work as stated in its ‘Statement Term’ box.

“VAT” means value added tax and any similar consumption or sales taxes in the world.

“Fourth Floor IP” means any pre-existing Fourth Floor Intellectual Property Rights.