1. LICENSE:

MVB US, Inc. (“MVB US”) hereby grants Client a limited, non-exclusive, non-transferable license to use the Services as defined herein in the United States (unless otherwise provided in any Order Form issued hereunder), subject to these Master Terms & Conditions (“Master Terms”). In the event of any conflict between the provisions of any Order Form and these Master Terms, the Order Form shall govern.

Client shall maintain, and, if necessary, upgrade its hardware-operating systems and third-party software consistent with any requirements and/or changes to the Services, and MVB US shall provide Client with notice of such requirements and/or changes for the operation of such services as set forth in any Order Forms issued under or incorporating these Master Terms.

2. DEFINITIONS:

a. “Agreement” means these Master Terms and any Order Forms issued under and/or incorporating these Master Terms.

b. “Client” means the party identified as “Client” in any Order Form.

c. “Documents” means standardized electronic data interchange (“EDI”) documents including but not limited to purchase orders, purchase order acknowledgments, functional acknowledgements, advanced shipment notices and invoices.

d. “Network Interconnect” means a connection that allows Client or Trading Partner Documents and data to be transferred between MVB US and an external network or system.

e. “Standards” mean the operating rules governing Client activity in using the Services, including, without limitation, format, content, hardware and software requirements and other standards for the electronic exchange of Documents. Standards will be made available to Client in accordance with the terms and conditions of any applicable Order Form.

f. “Trading Partner” means any entity that licenses and/or uses the Services, including without limitation, publishers, distributors, wholesalers, bookstores and other retailers. For example, an entity with which Client exchanges Documents through MVB US is a Trading Partner.

g. “Transaction Data” means the detailed transaction data contained within a Document.

3. SERVICES:

a. The Services are electronic data interchange/electronic commerce (EDI/EC) services designed by and used within the North American book industry. They streamline the book-ordering process, improve efficiency and reduce costs. Operating as a business-to-business service, the Services work with book buyers of all types, helping them develop systems to purchase electronically from publishers and other suppliers using industry-specific subsets of ANSI EDI standards (X12 BISAC) for purchase orders, purchase-order acknowledgements, advanced-shipment notices and invoices. MVB US’s members include (but are not limited to) Internet bookstores, college stores, wholesalers, library jobbers, trade stores, international subsidiaries of publishers, exporters, elementary and high schools, and book clubs.

b. MVB US will provide Client with user IDs and passwords to access the Services. Client is responsible for maintaining the confidentiality and controlling the use and disclosure of its user IDs and passwords.

c. Documents may be deleted from electronic mailboxes of all Client’s users of the Services in accordance with MVB US’s internal procedures. MVB US shall not be responsible for retaining or delivering Documents in the electronic mailbox of, or that are addressed to, a suspended or terminated Client. Automatic responses shall be generated to senders of any undeliverable messages.

d. MVB US may enlist the services of a third party to perform the Services, including but not limited to technical communication and support services, on MVB US’s sole behalf, provided that such third party is bound by terms and conditions concerning privacy and confidentiality no less restrictive than those contained herein.
e. MVB US shall not be liable for the interception by improper means or the theft by any person or entity, other than MVB US employees, agents or contractors, of Documents or other information carried on the Services or deposited in Client’s mailbox.

f. MVB US shall comply with laws, rules, and regulations, including without limitation, privacy and data-protection laws and regulations, applicable to MVB US’s provision of the Services. MVB US is not responsible for the contents of any Document and shall not disclose such content to any third party other than as required by law or as directed by the originating party or the intended recipient.

g. Client owns all right, title and interest in and to its Transaction Data. If MVB US creates a product or service that includes information derived from Transaction Data, Client agrees that MVB US may use Client’s Transaction Data in such products or services, including associated marketing materials, provided that MVB US may use the Transaction Data only in the aggregate or in anonymized form in summaries or analyses.

h.Upon Client’s request to use a Network Interconnect, MVB US’s responsibility with respect to such Network Interconnect will be limited to (i) the delivery to the Network Interconnect of Documents sent by the Client in conformity with the Standards, and (ii) the delivery to the Client of Documents received at the Network Interconnect provided that such Documents are in conformity with the Standards and correctly addressed to the Client’s customer.

4. CLIENT OBLIGATIONS:

a. Client shall be solely responsible for all use of its MVB US account, for the payment of Fees incurred for such use, and for any violation by Client’s users of the terms and conditions of this Agreement.

b. Client is solely responsible for the proper transmission and receipt of Documents and for implementing sufficient procedures and checkpoints to satisfy its particular requirements for the Transaction Data, and MVB US assumes no responsibility whatsoever with respect to such transmissions. Client shall promptly correct any errors discovered in Documents that Client transmits. Client shall promptly notify MVB US and the originating party (if identifiable), if any Documents received by Client are in an unintelligible form.

c. If Client provides MVB US with additional information, including but not limited to Client’s and other Trading Partner’s book price and availability information (along with the related bibliographic metadata), MVB US may, on a perpetual and worldwide basis, use such information for its internal and commercial purposes.

d. Client, at its own expense, shall provide and maintain the equipment, software, and services necessary to effectively and reliably connect to MVB US and to transmit and receive Documents. Client may contact MVB US technical support at for minimum hardware and software requirements which shall also be posted online.

e. Client is solely responsible for maintaining a mechanism external to MVB US for the reconstruction of any lost Transaction Data.

f. Client acknowledges that proper electronic transmission of Transaction Data in accordance with this Agreement, without modification, as between the originating and receiving parties, constitutes an original document created and maintained in the normal course of business. Upon request, Client shall make available to the recipient, for purposes of verification, any copies of source records related to Transaction Data that such Client originates.

5. FEES:

a. Client shall pay MVB US the amount of the license fees set forth in any Order Forms issued hereunder (the “Fees”). Such Fees are due when invoiced and are payable within thirty (30) days of the date of the invoice. Client agrees to pay interest at 1.5% per month from the date originally due until payment is received by MVB US on all amounts thereafter. Fees are exclusive of, and Client shall pay, all value-added, goods and services, sales, use and similar taxes incurred by or imposed upon the Services. Client agrees to cooperate with MVB US in connection with its compliance with applicable tax regulations.

b. Upon the acquisition by Client of any non-Client business entity (“Business”) that is then receiving the Services from MVB US provided to Client hereunder, Client shall add that Business to this Agreement as of the effective date of such acquisition and such Business shall be subject to all of the terms and conditions of the Master Terms (other than discounts on Services it was receiving at the time of acquisition), provided, that the Fees payable by Client in respect of such Business under this Agreement shall be increased by an amount equal to the fees payable by such Business under its previous MVB US service contract, for the remainder of such Business’ previous service contract, after which time Client and MVB US may negotiate an adjustment to Client’s Fees for the remainder of Client’s Term for access by such Business. Absent such adjustment to the Fees, (i) the acquired Business will have no access to, or any other license or right with respect to, the Services; (ii) in the event that the acquired Business is not receiving the Services provided to Client hereunder, Client and MVB US will negotiate an adjustment to Client’s Fees to add the Business and the Services to this Agreement; (iii) such adjustments to Client’s Fees pursuant to subsections (b) and/or © of this Section 5 shall be effective whether or not the acquired Business is partially or fully merged into Client.

c. If Client divests itself of any Client business entity that is then receiving Services from MVB US provided to Client hereunder, Client shall provide MVB US with prior (to the maximum extent feasible) written notice of such transaction. As of the closing date of the transaction, such Client business entity shall no longer have any rights or obligations under this Agreement.

6. TERM:

a. This Agreement shall commence on the Effective Date of the first Order Form issued under these Master Terms and continue thereafter for so long as any such Order Form remains in effect (the “Term”).

b. The provision of Services or licenses granted, or any portion thereof, may be suspended by MVB US at any time in the event Client fails to perform its payment or other obligations set forth herein. Such suspension of Service shall not suspend or otherwise affect Client’s said payment obligations.

c. This Agreement may be terminated by MVB US: (i) upon fifteen (15) days’ prior written notice, if Client breaches its obligations under this Agreement and fails to cure such breach within the fifteen (15) day period, or (ii) immediately, if such breach is incapable of being cured.

d. If MVB US notifies Client that the Services or part thereof is being discontinued by it, in its sole discretion (the “Discontinued Service”), Client shall reallocate the Fees associated with such Discontinued Service to (i) any new service or part thereof provided by MVB US that replaces the Discontinued Service, (ii) a new service, or (iii) an additional service.

e. Upon expiration or termination of this Agreement all rights and licenses granted to Client to use the Services shall terminate immediately.

7. WARRANTIES:

MVB US cannot and does not guarantee the accuracy or error-free performance of the Services, including data supplied to it by third parties and other sources that may not be under MVB US’s control. Without limiting the foregoing, MVB US IS PROVIDING THE SERVICES “AS IS,” AND DISCLAIMS, AND CLIENT HEREBY WAIVES, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, TO CLIENT OR TO ANY THIRD PARTY, CONCERNING THE SERVICES PROVIDED HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY OR ADEQUACY OF INFORMATION AND NONINFRINGEMENT. The foregoing disclaimer shall not act as or constitute an admission by MVB US that any Services constitute goods, commodities or tangible personal property under applicable law.

8. INDEMNIFICATION:

Client shall defend and indemnify MVB US against and hold it harmless from and against all claims, damages, liabilities, losses or expenses (including attorneys’ fees) arising, directly or indirectly, from Client’s breach of its obligations under this Agreement, and/or any misuse or misrepresentation by Client with respect to the Services.

9. LIMITATION OF LIABILITY:

MVB US shall not be obligated to furnish the Services when, in MVB US’s sole judgment, Client’s systems or technology are not such as to permit the Services to function in accordance with MVB US’s standards. MVB US will not be liable in contract, tort (including negligence) or otherwise, for any indirect damages (including loss of business profits, loss or diversion of Client sales orders, business interruption, loss of business information and the like), including, without limitation, special, incidental, consequential, exemplary, multiple or punitive damages, arising from or related to this Agreement, even if MVB US has been advised in advance of the possibility of such damages. MVB US’s liability for direct damages shall be limited to Client’s actual direct damages arising from or related to MVB US’s material breach of this Agreement up to the amount of Fees actually paid by Client for the Services giving rise to such claim for damages. UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, MVB US SHALL NOT BE LIABLE FOR ANY CLAIM BROUGHT AFTER THE SHORTER OF ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED OR MORE THAN TWO (2) YEARS AFTER THE TERMINATION OF THIS AGREEMENT. THESE REMEDIES ARE EXCLUSIVE.

10. RIGHT TO CHANGE:

MVB US may, from time to time, in its sole discretion, make changes to the Services, or any portion thereof, including, without limitation, formats, schedules, specifications, techniques, and/or methodology. MVB US shall provide notice of such changes to Client in accordance with the requirements of the applicable Order Form.

11. CONFIDENTIALITY:

a. During the term of this Agreement, Client and MVB US will have access to confidential and proprietary information of the other (“Confidential Information”) that is either marked as confidential or that a reasonable person would consider to be confidential by reason of the information contained therein and the circumstances surrounding its disclosure. The recipient shall use at least the same level of due care to prevent disclosure of the Confidential Information to any unauthorized person as it takes to protect its own confidential and proprietary information of a similar nature and shall not disclose to any third party other than its employees and representatives who have a need to know the Confidential Information in connection with the purpose for which it was disclosed and who are bound to nondisclosure obligations containing at least the same level of protection as set forth herein. Confidential Information does not include information that the recipient can establish: (i) is publicly disclosed by the discloser, (ii) is subsequently disclosed to the recipient by a third party that is lawfully in possession thereof without obligation to keep it confidential, (iii) has been published by a third party or otherwise enters the public domain through no fault of the recipient, or (iv) has been independently developed or acquired by the recipient without reference to the Confidential Information.

b. Client acknowledges that, due to the unique nature of the Confidential Information, MVB US and/or its third-party licensors would sustain irreparable harm by reason of any actual or threatened breach of the provisions of this Section. In such event, MVB US shall be entitled to injunctive relief without having to prove irreparable injury, lack of an adequate remedy at law, posting bond or waiving any other rights as well as any other relief or remedy provided by law with respect to any such actual or threatened breach of this Agreement.

12. ASSIGNABILITY:

This Agreement is for the benefit of and shall be binding on the parties and their successors and assigns, and Client may not assign or transfer any or all of its rights under this Agreement to any person or entity without the prior written consent of MVB US. No such assignment shall relieve Client of its obligations hereunder. MVB US reserves the right to assign its rights to an affiliate of MVB US or a successor to all or substantially all of the business of MVB US, and reserves the right to have any Services rendered by such affiliate or successor. Any assignment in breach of this Section 12 shall be null and void and without any force or effect.

13. RELATIONSHIP OF THE PARTIES:

The parties to this Agreement are independent contractors and neither shall have authority to bind or obligate the other.

14. THIRD-PARTY LICENSOR:

Sections 4, 7, 8, 9 and 11 of this Agreement apply to any MVB US third-party licensor the same as such sections would apply to MVB US hereunder, and Client acknowledges that such third-party licensor is a third-party beneficiary of such contract provisions.

15. FORCE MAJEURE:

In the event either party is delayed in or prevented from performing any act required hereunder due to circumstances beyond its control, including but not limited to war, invasion, act of foreign enemies, hostilities, civil unrest, rebellion, revolution, insurrection, sanctions, embargo, interruption or failure of any electricity, communication system, or other utilities, labor disputes, strike, lockout, governmental or judicial orders, acts of God, acts of terrorism, or weather conditions, then performance of such act shall be excused for the period of such delay; provided, however, that Client’s obligation to make any payment pursuant to this Agreement shall not be excused for Services that are not affected by the force majeure event.

16. NON-SOLICITATION:

With respect to any MVB US employee assigned to dedicate his or her time primarily to Client’s business or account with MVB US, Client shall not, during the Term of this Agreement and for one year thereafter, without first obtaining MVB US’s prior written consent, directly or indirectly solicit, hire or otherwise engage the services of such MVB US employee, as an employee, consultant or otherwise.

17. NOTICES:

Any notice or request given hereunder shall be in writing and deemed given on the date received when delivered personally or by nationally recognized delivery service (a) if to MVB US at MVB US, a division of MVB US, Inc., 30 Irving Place, 4th Floor, New York, New York 10003, Attn: Ted Hill, Managing Director; and (b) if to Client at CLIENT’S NOTICE DETAILS

18. SURVIVAL:

The rights and obligations of MVB US and Client set forth in Sections 1, 2, 3, 4, 5, 7, 8, 9, 11, 13, 14, 16 and 20 shall survive the termination of this Agreement.

19. ENTIRE AGREEMENT:

The Master Terms together with any applicable Order Forms issued thereunder, contain the entire understanding of the parties with respect to the Services furnished hereunder and supersedes all previous discussions, promises and agreements relating to such Services, whether written or oral. Neither the Master Terms nor any Order Form may be modified, amended or supplemented except by written instrument executed by the parties. No waiver of any provision shall be effective unless in writing signed by the party charged. No waiver of a provision hereof shall constitute a waiver of any other provision. No waiver by any party of any breach of this Agreement shall be deemed a waiver of any prior or subsequent breach.

20. GOVERNING LAW

This Agreement shall be interpreted and construed in accordance with the laws of the State of New York applicable to contracts made and to be entirely performed therein, without giving effect to New York’s choice-of-law rules or to any rule of construction that allows or directs that ambiguities be construed against the drafter of a contract. The state courts of the State of New York in and for New York County, and if the jurisdictional prerequisites exist, the United States District Court for the Southern District of New York, and no other court or tribunal, shall have sole and exclusive jurisdiction to hear and determine any dispute or controversy arising under or concerning this Agreement. With respect to any such action or proceeding, each party hereto irrevocably (a) consents and submits to the personal jurisdiction of said courts, and (b) waives the defense of lack of personal jurisdiction and/or inconvenient forum and/or improper venue. Each party hereby consents to service of process upon him/her/it either personally or by registered or certified mail, postage prepaid, return receipt requested at the addresses given above.

MVB US, Inc. | November 1, 2017