Additional Terms of Retail Sales Agreement

These Additional Terms of Retail Sales Agreement (as amended, modified or supplemented from time to time, these “Additional Terms”) apply to and constitute part of the Retail Sales Agreement (as amended, modified or supplemented from time to time, the “RSA”) between the Retailer and Vice Golf. Each reference in these Additional Terms to this “Agreement” means, collectively, the RSA and these Additional Terms.

1. DEFINED TERMS. If a capitalized term that is used but not defined in these Additional Terms is defined in the RSA, that term has the meaning assigned to it in the RSA.

2. TERM AND TERMINATION. The term of this Agreement begins on the Effective Date and shall continue until the first anniversary thereof (the “Initial Term”) and will automatically renew for successive one-year terms (each a “Renewal Term” and, together with the Initial Term, the “Term”) unless a party provides a written notice of non-renewal to the other party at least ten (10) days prior to the end of such Initial Term or Renewal Term, as the case may be. A party may, at any time and for any reason or no reason, terminate this Agreement by providing ten (10) days’ written notice to the other party. In addition, Vice Golf may terminate this Agreement immediately upon written notice if (a) Retailer breaches any term of this Agreement, (b) Retailer becomes insolvent or the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, winding up/composition or assignment for the benefit of creditors, in each case whether under state or federal law (a termination under clause (a) or clause (b) of this sentence, a “Termination for Cause”) or (c) permitted under Section 15 of these Additional Terms.

3. PURCHASE ORDERS.

1. Ordering Directly Via an Order Document. Subject to the other terms of this Section 3 and Section 5 of these Additional Terms, if Retailer desires to order Products, retailer shall place an order (each an “Order”) for such Products by delivering a purchase order or similar document to Vice Golf (each an “Order Document”). Each Order Document must include the following (the “Basic Terms”): (i) a description of each of the Products ordered and their respective stock keeping unit codes (“SKUs”); (ii) the quantity of each of the Products ordered; (iii) the U.S. address to which Retailer desires the Products to be shipped (each a “Retailer Location”) and the date on which Retailer desires such Products to be delivered to a Retailer Location (the “Requested Arrival Date”); and (iv) the billing address. Each Order is subject to acceptance or rejection (in whole or in part), for any reason or no reason, by Vice Golf for thirty (30) days after Vice Golf receives the Order Document (the “Acceptance Period”). Notwithstanding the foregoing, if Vice Golf from time to time provides a form Order Document for Retailer’s use in placing Orders, Retailer shall thereafter solely use such Order Document to place Orders.
2. Ordering Via Sales Agents. Retailer may also place an Order through a Vice Golf sales representative (a “Sales Agent”). To do so, Retailer shall instruct or authorize, orally or via any other means of communication, such Sales Agent to place an Order on Retailer’s behalf (an “Order Request”). Any request or other communication from Retailer to such Sales Agent that indicates Retailer wants such Sales Agent Place an Order for Retailer shall constitute an Order Request. Retailer shall provide such Sales Agent with the Basic Terms of such Order to the extent Retailer did not include the Basic Terms in the Order Request. Once a Sales Agent receives an Order Request, such Sales Agent may place an Order through Vice Golf’s then-current online ordering platform (the “Platform”) or may place an Order by submitting an Ordering Document to Vice Golf (in each case for and on behalf of Retailer and in relation to the Order Request). The information submitted or delivered to Vice Golf through the Platform shall be deemed to constitute an Order Document for purposes of this Agreement. Retailer may not modify an Order Request once a Sales Agent has submitted an Order in response to such Order Request. Retailer acknowledges and agrees that (i) Sales Agents are not Vice Golf employees, are not authorized to bind Vice Golf and cannot negotiate prices or other terms on Vice Golf’s behalf, (ii) each Order placed in response to a Sales Request shall be fully binding on Retailer and shall be subject to all other terms of this Agreement (including those applicable to Retailer-placed Orders under Section 3(a) of these Additional Terms) and (iii) no terms in an Order Request other than the Basic Terms and the terms of this Agreement shall apply to an Order a Sales Agent places in response to such Order Request. Sales Agents are authorized to ignore such other terms in an Order Request.
3. Ordering Directly Via the Platform. Vice Golf may notify Retailer in writing that Retailer may place Orders directly through the Platform, and Retailer may do so to the extent Vice Golf Permits. Each Order placed through the Platform shall be fully binding on Retailer and shall be subject to all other terms of this Agreement (including those applicable to Retailer-placed Orders under Section 3(a) of these Additional Terms). The information submitted or delivered to Vice Golf through the Platform shall be deemed to constitute an Order Document for purposes of this Agreement.
4. General Terms Regarding Orders. Retailer may not unilaterally cancel, revoke, terminate or modify an Order during the Acceptance Period. An Order will be deemed accepted for purposes of this Agreement solely to the extent Vice Golf confirms the acceptance thereof in writing. Retailer hereby assumes the risk of and responsibility for, and Vice Golf is not responsible for, typographical or other errors in any Order Document (“Order Errors”). Without limiting the foregoing, Retailer shall immediately notify Vice Golf in writing if, upon receipt of an Order confirmation, Retailer believes the applicable Order included Order Errors. Vice Golf may revoke, in whole or in part, its acceptance of any Order, if (i) Retailer breaches any term of this Agreement, (ii) Vice Golf reasonably believes such Order includes Order Errors, (iii) Vice Golf has experienced a material delay in receiving from its suppliers any of the Products covered by an Order, (iv) Vice Golf has discontinued any of the Products covered by such Order, (v) Vice Golf has identified quality control problems with any of the Products covered by such Order, (vi) Vice Golf reasonably believes Retailer’s financial condition has materially declined or (vii) there has been a Force Majeure.
5. OTHER TERMS. ALL ORDERS ARE SUBJECT TO THE TERMS OF THIS AGREEMENT. EXCEPT FOR THE BASIC TERMS CONTAINED IN AN ORDER DOCUMENT AND APPLICABLE TO THE ACCEPTED PORTION OF AN ORDER, VICE GOLF HEREBY REJECTS ANY TERMS OR CONDITIONS (INCLUDING ANY ADDITIONAL TERMS OR CONDITIONS), IN ANY FORM, SET FORTH IN ANY ORDER DOCUMENT, OTHER DOCUMENT OR INSTRUCTION DELIVERED BY OR ON BEHALF OF RETAILER (INCLUDING ANY ORDER REQUEST GIVEN TO A SALES AGENT). WITHOUT LIMITING THE FOREGOING, VICE GOLF’S ACCEPTANCE OF AN ORDER SHALL NOT CONSTITUTE ACCEPTANCE OF ANY SUCH TERMS OR CONDITIONS AND SHALL NOT SUPPLEMENT, MODIFY OR AMEND THIS AGREEMENT.

4. FULFILLMENT. While Vice Golf wishes to accept all Orders and to fulfill all accepted Orders in full, Retailer acknowledges that inventory quantities are fluid and that Vice Golf may accept an Order in part or may accept an entire Order and fulfill only a portion of such Order at a time. If Vice Golf accepts an entire Order and fulfills only a portion of such Order, the balance of such Order shall remain open until the earlier to occur of Vice Golf’s fulfillment of such balance or Retailer’s delivery to Vice Golf (which delivery shall not be made before the Acceptance Period applicable to such Order expires) of a written notice of cancellation of such balance, provided such cancellation shall have no effect if Vice Golf has ordered the Products needed to fulfill such balance from its manufacturers or suppliers. Without limiting the foregoing, Vice Golf may make partial deliveries of Products to the Delivery Point and may ship partial shipments of Products to a Retailer Location, in each case without giving rise to any liability or penalty or any remedy of Retailer (e.g., a rejection right).

5. ANNUAL FORECASTS. No later than November 30 of each calendar year during the Term (or, if the Initial Term begins after such date, as soon as possible), Retailer shall deliver a written forecast (each a “Forecast”) to Vice Golf, which shall include Retailer’s reasonable, good faith estimates of (a) the types (including the respective SKUs) and aggregate quantities of Products (such types and quantities, the “Forecasted Products”) Retailer expects to order over the following calendar year (the “Forecast Year”) for delivery in the Forecast Year, (b) the number of separate Orders Retailer expects to place in the Forecast Year to order the Forecasted Quantities (each a “Forecasted Order”), (c) the quantities and types (including the respective SKUs) of Forecasted Products expected to be included in each Forecasted Order and (d) the Requested Arrival Dates during the Forecast Year for the Forecasted Products to be included in a Forecasted Order. A Forecast shall not initially be binding on Retailer. However, during the Forecast Year, a Sales Agent or a Vice Golf Representative may contact Retailer to confirm or revise one or more Orders listed in a Forecast. Any such Order, as confirmed or revised based on such contact (each, a “Confirmed Order”), shall be firm and binding on Retailer in all respects. For purposes of this Agreement, Sales Agent originated Confirmed Orders shall be deemed to be Orders placed in response to a Sales Request and are subject to the terms of Section 3(b) of these Additional Terms, while Vice Golf Representative originated Confirmed Orders shall be deemed to be Orders placed under Section 3(c) of these Additional Terms. No Forecast binds Vice Golf.

6. PRICES. Retailer shall purchase the Products from Vice Golf at the prices listed in the most recent Vice Golf price list provided to Retailer by a Sales Agent (or, solely for an Order placed under Section 3(c) of these Additional Terms, at the prices listed in the Platform at the time such Order is placed), in each case notwithstanding anything to the contrary in an Order Document. Except to the extent a price list expressly states otherwise, prices are exclusive of, and Retailer shall be solely responsible for, packaging, handling, loading, shipping/freight and insurance costs, charges or expenses (collectively, “Freight Charges”) related to transporting ordered Products from the Delivery Point to the applicable Retailer Locations. If there is a typographical or other error in any listed price or other pricing information, such error shall not bind Vice Golf, and Retailer authorizes Vice Golf to correct such error and charge Retailer the correct amount.

7. TAXES. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges (excluding taxes on Vice Golf’s income, revenues or gross receipts), of any kind imposed by any governmental authority on any amounts payable by Retailer (“Taxes”). Retailer shall be solely responsible for all such Taxes. Vice Golf expects to charge sales tax to Retailer unless Retailer provides a valid government issued resale certificate and other evidence satisfactory to Vice Golf that Vice Golf does not need to charge such taxes.

8. PAYMENT TERMS & INVOICING. Retailer’s obligation to pay for Products arises when ordered Products are delivered to the Delivery Point (regardless of whether such delivery is in whole or partial fulfillment of an Order). Retailer shall pay all amounts, including Taxes and Freight Charges, identified in a Vice Golf invoice. Until Vice Golf otherwise notifies Retailer in writing, Retailer shall make payments due under this Agreement to the third-party vendor Vice Golf from time to time designates (such vendor and its successors, the “Payment Vendor”). The Payment Vendor will assist Vice Golf with invoicing, payment, collections and other matters in connection with this Agreement. Retailer shall complete the Payment Vendor’s credit application and provide accurate information to the Payment Vendor. Retailer shall also enter into a contract with the Payment Vendor relating to Retailer’s payment for Products ordered under this Agreement (the “Payment Contract”). Retailer shall pay for Products in accordance with the Payment Contract and shall otherwise comply with the Payment Contract. If Vice Golf from time to time notifies Retailer to make payments for Products directly to Vice Golf, Retailer shall pay for such Products in accordance with Vice Golf’s standard payment terms (including, without limitation, terms regarding timing of payments, late fees and collection costs). Vice Golf may suspend the delivery of any Products if Retailer fails to pay any amounts to the Payment Vendor or Vice Golf as required under this Agreement. Retailer may not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Vice Golf or the Payment Vendor. Upon Vice Golf’s request from time to time, Retailer will comply with the Payment Vendor’s standard dispute resolution procedures.

9. DELIVERY, PACKAGING AND SHIPMENT. Delivery shall be made, and all Orders will be deemed to be placed, FOB at the applicable Vice Golf distribution facility (the “Delivery Point”) from which Products ship to Retailer Location. Vice Golf’s delivery obligations shall end at (and such obligations shall be satisfied upon delivery of the Products to) the Delivery Point, not a Retailer Location. However, Vice Golf may, at the Retailer’s risk and expense, package the Products for shipment and ship the Products. Vice Golf may use Vice Golf’s usual packaging methods or other reasonable packaging methods to package Products for shipment. Retailer hereby requests that Vice Golf ship the Products to the applicable Retailer Locations (as specified in the applicable Order Document) and enter into contracts for the same, all at Retailer’s risk and expense. For clarity, Vice Golf is not liable or responsible for any loss or damage to Products in transit or for the arrival of Products at a Retailer Location before or after the applicable Requested Arrival Date. Subject to the foregoing terms of this Section 9 of these Additional Terms and the other terms of this Agreement, Vice Golf agrees to use good faith efforts to deliver the Products included in the accepted portion of an Order to a carrier for delivery to the applicable Retailer Location by the Requested Arrival Date (based on the carrier’s standard delivery times for the selected service).

10. RISK OF LOSS; SECURITY INTEREST. Title and risk of loss passes to Retailer upon delivery of the Products to the Delivery Point. As collateral security for the payment for Products and the payment and performance of all of Retailer’s present and future indebtedness, obligations and liabilities, Retailer hereby grants to Vice Golf a lien on and security interest in and to all of the right, title and interest of Retailer in, to and under the Products (including Nonconforming Products (defined below)), wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the applicable state’s Uniform Commercial Code (or equivalent). Retailer authorizes Vice Golf to file financing statements with respect to such security interest. Vice Golf is entitled to all applicable rights and remedies of a secured party under applicable law.

11. RETAIL PACKAGING AND MERCHANDISING; USE OF TRADEMARKS & INTELLECTUAL PROPERTY. Retailer shall not alter or modify the retail packaging that is provided with the Products and shall store the Products in a cool, dry place with no exposure to direct sunlight. Retailer will merchandise the Products in a professional manner that is reasonably acceptable to Vice Golf. As between Retailer and Vice Golf, Vice Golf is the exclusive owner of the logos, trademarks, trade names, copyrighted materials, images, photos, and all other intellectual property, that is embodied in, incorporated into or related to (a) the Products or (b) any sales and marketing materials for or related to the Products provided by Vice Golf (the (“Sales and Marketing Materials”). Vice Golf grants Retailer the limited, revocable, non-exclusive license to use approved and authorized Sales and Marketing Materials in the Retailer stores described in Section 2 of the RSA for the sole purpose of selling and marketing the Products in accordance with this Agreement (including Section 2 of the RSA). In addition to these Sales and Marketing Materials, Vice Golf may provide point of sale fixtures and displays to assist Retailer in the promotion of the Products, which shall also constitute “Sales and Marketing Materials” for purposes of this Agreement. Retailer agrees to pay the Freight Charges for any Sales and Marketing Materials Vice Golf provides to Retailer. For clarity, Vice Golf is not required to provide any Sales and Marketing Materials. Retailer will not alter or modify Sales and Marketing Materials in any way and will not market the Products other than with the Sales and Marketing Materials. If Retailer seeks to use Sales and Marketing Materials other than as authorized by Vice Golf, Retailer shall first obtain Vice Golf’s written authorization. Retailer will not display any non-Vice Golf products or brands within Sales and Marketing Materials that are a fixture or display. Upon termination or expiration of this Agreement, Retailer shall promptly return or dispose of, at its expense and at Vice Golf’s direction, all Sales and Marketing Materials to Vice Golf.

12. SALES SUPPORT; VICE GOLF POLICIES. Vice Golf may, but is not required to, provide service and sales support to Retailer during the Term of this Agreement. Vice Golf may discontinue any such support at any time and for any reason or no reason. Retailer shall comply with Vice Golf’s standard policies and procedures applicable to resellers or retailers, as such policies and procedures are in effect from time to time.

13. SUGGESTED RETAIL PRICE. Vice Golf may provide Retailer with a Suggested Retail Price or “SRP” for various Products, which SRPs Vice Golf may change from time to time upon at least ten (10) days’ notice to Retailer. This price is only a suggestion of the price for such Products and is based upon Vice Golf’s understanding of market conditions as it relates to the Products, competing products, market conditions and Vice Golf’s market strategy.

14. MINIMUM ADVERTISED PRICE Vice Golf has independently and unilaterally established a Minimum Advertised Price policy, which Vice Golf may unilaterally amend from time to time upon at least ten (10) days’ notice to Retailer (as amended, the “MAP Policy”). The MAP Policy currently provides as follows: “The minimum price at which a retailer offers, markets, promotes or advertises any Vice Golf product, by or through any medium or channel, should not be less than the Suggested Retail Price for such product. For purposes of the previous sentence “minimum price” shall take into account (i.e., be reduced by) discounts, deductions, rebates, allowances, credits, coupons, gifts, promotions and items similar to any of the foregoing (including any free or reduced goods or services provided with a purchase) but not customer-paid taxes.” The MAP Policy is intended preserve Vice Golf’s reputation and maintain its brand value to its retailers and consumers and to encourage retailers to focus on delivering an extraordinary customer experience and top-of-the-line service. While Vice Golf suggests Retailer observe the MAP Policy, Retailer is not required to comply with the MAP Policy and may offer, sell, market, promote or advertise the Products at any price Retailer chooses, in Retailer’s sole and absolute discretion, without advising with or consulting Vice Golf. Vice Golf does not ask for, and will not accept, any assurance of compliance or agreement from Retailer regarding the MAP Policy. If Retailer does not observe the MAP Policy, Vice Golf may terminate this Agreement upon written notice to Retailer. For clarity, such non-observance does not breach this Agreement or constitute a Termination for Cause. If Vice Golf terminates this Agreement under this Section 14 of these Additional Terms, Vice Golf may repurchase all Products from Retailer at the Prices paid by Retailer, by delivering a written notice of exercise to Retailer. Retailer shall follow, at Vice Golf’s expense, Vice Golf’s reasonable instructions in connection with Vice Golf’s exercise of such purchase right. Vice Golf shall make payment for such Products within thirty (30) after such Products’ delivery to Vice Golf (or other disposition at Vice Golf’s instruction).

15. INSPECTION OF PRODUCTS. Retailer shall inspect Products within ten (10) days of delivery of such Products (“Inspection Period”). Retailer will be deemed to have accepted the Products unless it notifies Vice Golf in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Vice Golf. “Nonconforming Products” means only the following: (a) the Products delivered are different than identified in the applicable Order Document; or (b) the Products’ labels or packaging incorrectly identifies the Products’ contents. If Retailer timely notifies Vice Golf of any Nonconforming Products, Vice Golf shall (i) as soon as reasonably practicable, replace such Nonconforming Products with conforming Products or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Retailer in connection therewith, the choice of the remedies described in this sentence to be made by Vice Golf in its sole discretion. Retailer shall follow Vice Golf’s reasonable instructions with respect to the return, destruction or disposal of Nonconforming Products (and Retailer agrees that the terms of Section 2 of the RSA also apply to Nonconforming Products). Retailer also acknowledges and agrees that the remedies set forth in this Section 15 of these Additional Terms are Retailer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided in this Section 15 of these Additional Terms, all sales of Products to Retailer are made on a one-way basis, and neither Retailer nor any customer thereof has any right to return Products purchased under this Agreement to Vice Golf. If Vice Golf delivers (or Retailer receives) a greater quantity of a Product than Retailer ordered, Retailer shall accept, subject to Retailer’s rights under this Section 15 of these Additional Terms, the ordered quantity and follow Vice Golf’s instructions (at Vice Golf’s expense) with respect to the excess.

16. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Vice Golf, including, but not limited to, this Agreement, Product specifications, samples, patterns, designs, plans, drawings or information about pricing, discounts or rebates, disclosed by or on behalf of Vice Golf to Retailer (regardless of whether such information is (a) disclosed orally or disclosed or accessed in written, electronic or other form or media or (b) marked, designated or otherwise identified as “confidential”) in connection with this Agreement is confidential, shall be held by Retailer in strict confidence, may be used by Retailer solely for performing its obligations under this Agreement and may not be disclosed or copied by Retailer unless authorized in advance by Vice Golf in writing. Upon Vice Golf’s request, Retailer shall promptly return all confidential information to Vice Golf. This Section 16 of these Additional Terms does not apply to information that is: (a) in the public domain; (b) known to Retailer at the time of disclosure; or (c) rightfully obtained by Retailer on a non-confidential basis from a third party.

17. INDEMNIFICATION. Retailer shall indemnify and hold harmless (and, if and to the extent requested by Vice Golf, defend) Vice Golf, its affiliates and its and their respective personnel, officers, directors, partners, shareholders, members, managers, attorneys, contractors, advisors, successors and assigns (collectively, “Representatives”) against any and all losses, damages, diminutions in value, liabilities, deficiencies, claims, actions, proceedings, investigations, inquiries, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind (including those arising from direct claims against Retailer), including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to or arising out of: (a) any breach of any obligation, agreement or covenant of Retailer herein or any inaccuracy in any representation, warranty of Retailer herein or in any statements or information provided by or on behalf of Retailer in connection herewith; (b) any negligent or more culpable act or omission of Retailer or its Representatives (including, without limitation, any fraud, recklessness or willful misconduct) in connection with this Agreement or the Products; or (c) the ownership, operation or management of the business of Retailer or any Representative thereof. Retailer acknowledges that Vice Golf has invested substantial amounts in its brands and other intellectual property and that the terms of this Agreement are intended to protect that investment. If Retailer breaches this Agreement, such breach could result in consequential, indirect, incidental, special or exemplary damages, in addition to direct damages, and Vice Golf shall be entitled to recover all such damages.

18. WARRANTY. NEITHER VICE GOLF NOR ANY REPRESENTATIVE THEREOF MAKES ANY WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS (OR ANY SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT), INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

19. LIMITATION OF LIABILITY. IN NO EVENT SHALL VICE GOLF OR ANY REPRESENTATIVE THEREOF BE LIABLE TO RETAILER, TO ANY REPRESENTATIVE OF RETAILER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT VICE GOLF OR ANY REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL VICE GOLF’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY RETAILER TO VICE GOLF FOR THE PRODUCTS SOLD UNDER THIS AGREEMENT THAT RELATE TO SUCH CLAIM.

20. EFFECT OF TERMINATION OR EXPIRATION. Upon the expiration or termination of this Agreement, (a) Retailer may not place any additional Orders; (b) Retailer shall immediately cease to be an authorized Vice Golf retailer and (c) except to the extent Section 21 of these Additional Terms provides otherwise, Retailer’s rights under this Agreement shall terminate. If there has been a Termination for Cause, Retailer shall immediately cease selling Products, and Vice Golf may repurchase all Products from Retailer at Vice Golf’s cost therefor (as such cost is reasonably determined by Vice Golf), by delivering a written notice of exercise to Retailer. Retailer shall follow, at Vice Golf’s expense, Vice Golf’s reasonable instructions in connection with Vice’s Golf’s exercise of such purchase right. Vice Golf shall make payment for such Products within thirty (30) after such Products’ delivery to Vice Golf (or other disposition at Vice Golf’s instruction).

21. SURVIVAL. Notwithstanding the termination or expiration of this Agreement: (a) Sections 2 (solely the restrictions thereof) and 3 of the RSA and Sections 3 (other than the first sentence thereof), 4, 5 (other than the first sentence thereof) and 6–28 of these Additional Terms, along and all rights and obligations arising under such sections of the RSA or these Additional Terms, shall remain in full force and effect; (b) without limiting the foregoing, any outstanding invoices, any invoices subsequently delivered in accordance with this Agreement, the accepted portion of any Order (subject to Vice Golf’s revocation rights), any Order for which the Acceptance Period has not ended, Retailer’s obligation to order and pay for Products during a Forecast Year in accordance with a Confirmed Order and any other obligations of Retailer that arose prior to such expiration or termination shall be unaffected by such termination or expiration and shall be subject to all terms of this Agreement; (c) unless there has been a Termination for Cause, Retailer may, during the ninety (90) day period after such termination or expiration (the “Sell-Off Period”), sell (i) any remaining inventory of Products and (ii) any Products purchased or delivered after such termination or expiration as contemplated by this Agreement, in each case in strict accordance with this Agreement. No later than thirty (30) days after the end of any applicable Sell-Off Period, Retailer shall deliver to Vice Golf, at Retailer’s expense, any Products that remain unsold as of the end of such Sell-Off Period.

22. ASSIGNMENT. Retailer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Vice Golf. For purposes of this Agreement, any direct or indirect change in the control or management of Retailer shall be deemed to be an assignment for which Vice Golf’s prior written consent is required. Any purported assignment or delegation in violation of this Section 22 of these Additional Terms is null and void. No assignment or delegation relieves Retailer of any of its obligations under this Agreement. Vice Golf may assign its rights or delegate its obligations, in whole or in part, at any time and for any reason or no reason. Retailer acknowledges that Vice Golf’s assignment of any or all of its rights to accounts receivable due from Retailer under this Agreement shall not constitute an assignment of any other Vice Golf rights under this Agreement.

23. WAIVERS AND AMENDMENTS; CONSTRUCTION. No waiver of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege under this Agreement precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Vice Golf may, from time to time and for any reason or no reason, unilaterally amend, modify or supplement these Additional Terms. Except to the extent expressly permitted under this Agreement, this Agreement may not be amended or modified except by a written agreement duly signed by the parties hereto. The headings in this agreement are solely for convenience of reference shall not have any effect on the interpretation of this Agreement. The parties agree that this Agreement shall not be construed against the party primarily responsible for its drafting.

24. SEVERABILITY; REMEDIES. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Each remedy of Vice Golf under this Agreement is cumulative and not exclusive of any other remedies Vice Golf may have available under this Agreement, at law or in equity.

25. FORCE MAJEURE. Vice Golf shall not be liable or responsible to Retailer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Vice Golf (each a “Force Majeure”), including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, pandemic or epidemic (including any epidemic or pandemic related to the novel Coronavirus pandemic (COVID-19)), lockouts, strikes or other labor disputes or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

26. ENTIRE AGREEMENT. This Agreement, including and together with these Additional Terms, the Basic Terms contained in an Order Document and applicable to the accepted portion of an Order and any other documents incorporated herein by reference, constitutes the sole, complete and exclusive agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

27. GOVERNING LAW AND JURISDICTION. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York, in each case located in New York, New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

28. ATTORNEYS’ FEES. In the event that a party brings against the other party any legal suit, action or proceeding arising out of or relating to this Agreement, the successful prevailing party thereto shall be entitled to recover reasonable attorneys’ fees, court costs and other expenses, including actual expert witness fees, if any, incurred in such legal suit, action or proceeding, in addition to any other relief to which the prevailing party may be entitled.