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RELEASE AGREEMENT

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This Release Agreement (the “Agreement”) is dated and effective (the “Effective Date”) on the moment, date and time, your account is created and registered on the Gesture for Vendors platform (the “Platform”), and is by and between Gesture US, Inc., having its principal place of business located at 1412 Broadway, New York, NY 10018 #21 (“Gesture”) and the business owner or person whom is responsible for the business or vendor (the “Vendor”) location stated in the account registration on the Platform (collectively referred to as the “Parties”, and each, a “Party”).

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WHEREAS, the Parties have entered into a Vendor Agreement, dated on the day the Vendor account is created on the Platform, and now wish to enter to such Vendor Agreement.

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Now, Therefore, in and for the consideration of the premises contained herein, and in further consideration of the benefits and advantages flowing from each party to the other, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

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  1. Mutual Release.

    1. In consideration of the covenants, agreements and undertakings of the Parties under this Agreement each Party, on behalf of itself and its respective present and former parents, subsidiaries, affiliates, officers, directors, shareholders, members, successors, and assigns (collectively, "Releasors") hereby releases, waives, and forever discharges the other Party and its respective present and former, direct and indirect, parents, subsidiaries, affiliates, employees, officers, directors, shareholders, members, agents, representatives, permitted successors, and permitted assigns (collectively, "Releasees") of and from any and all actions, causes of action, suits, losses, liabilities, rights, debts, dues, sums of money, accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands, of every kind and nature whatsoever, whether now known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, in law, admiralty, or equity (collectively, "Claims"), which any of such Releasors ever had, now have, or hereafter can, shall, or may have against any of such Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of time through the date of this Agreement arising out of or relating to the Vendor Agreement, except for any surviving obligations under the Vendor Agreement and Claims relating to rights and obligations preserved by, created by or otherwise arising out of this Agreement.

    2. Each Releasor understands that it may later discover Claims or facts that may be different from, or in addition to, those that it or any other Releasor now knows or believes to exist regarding the subject matter of the release contained in this Section 1, and which, if known at the time of signing this Agreement, may have materially affected this Agreement and such Party's decision to enter into it and grant the release contained in this Section 1. Nevertheless, the Releasors intend to fully, finally and forever settle and release all Claims that now exist, may exist, or previously existed, as set out in the release contained in this Section 1, whether known or unknown, foreseen or unforeseen, or suspected or unsuspected, and the release given herein is and will remain in effect as a complete release, notwithstanding the discovery or existence of such additional or different facts. The Releasors hereby waive any right or Claim that might arise as a result of such different or additional Claims or facts. The Releasors have been made aware of, and understand, the provisions of California Civil Code Section 1542 (“Section 1542”), which provides ”A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” The Releasors expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release.

  2. Representations and Warranties. Each Party hereby represents and warrants that:

    1. they have the full right, power and authority to enter into this Agreement, to grant the release contained herein and to perform its obligations hereunder;

    2. the execution of this Agreement by the signatory at the end of this Agreement on behalf of such Party, and the delivery of this Agreement by such Party, have been duly authorized by all necessary corporate action on the part of such Party;

    3. this Agreement has been executed and delivered by each Party and constitutes the legal, valid and binding obligation of each Party, enforceable against each Party in accordance with its Terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors' rights generally or the effect of general principles of equity; and

    4. they know of no Claims against the other Party relating to or arising out of the Vendor Agreement that are not covered by the release contained in Section 1 and have neither assigned nor transferred any of the Claims released herein to any person or entity and no person or entity has subrogated to or has any interest or rights in any Claims.

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EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE VENDOR AGREEMENT AND IN THIS SECTION 2 OF THIS AGREEMENT, (1) NEITHER PARTY HERETO NOR ANY PERSON ON SUCH PARTY'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (2) EACH PARTY HERETO ACKNOWLEDGES THAT, IN ENTERING INTO THIS RELEASE AGREEMENT, IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH OTHER PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 2.

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  1. Indemnification.

    1. The Vendor shall defend, indemnify, and hold harmless Gesture and its officers, directors, employees, agents, affiliates, permitted successors, and permitted assigns, against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, arising out or resulting from any claim of a third party alleging: (i) material breach by Gesture or its employees, consultants or other personnel of any representation, warranty, covenant or other obligations set out in this Agreement; or (ii) gross negligence or more culpable act or omission of Gesture or its employees, consultants, or other personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement.

    2. Notwithstanding anything to the contrary in this Agreement, Gesture is not obligated to indemnify, defend, or hold harmless the Vendor and any other indemnified party against any losses arising out of or resulting in whole or in part from an Vendor’s: (i) willful and/or reckless or negligent acts or omissions; or (ii) bad faith failure to materially comply with any of its obligations set out in this Agreement.

    3. Gesture seeking indemnification under this Section 3 shall give the Vendor: (i) prompt Notice (as defined in Section 6.1) of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Vendor from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (ii) reasonable cooperation, at the Vendor’s expense, in the defense of such claim. Gesture shall have the right to control the defense and settlement of any such claim; provided, however, that the Vendor shall not, without the prior written approval of Gesture, settle or dispose of any claims in a manner that affects Gesture's rights or interests. Gesture shall have the right to participate in the defense at its own expense.

  2. Confidentiality. Each Party acknowledges the confidential nature of the Terms and Conditions of this Agreement (collectively, the "Confidential Information") and agrees that it shall not (i) disclose any of such Confidential Information to any person or entity, except to such Party's representatives, affiliates, employees, advisors and other representatives who need to know the Confidential Information to assist such Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement, or (ii) use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement. Each Party shall be responsible for any breach of this Section 4 caused by any of its representatives, affiliates, employees, advisors, or other representatives. Notwithstanding the foregoing, if any Confidential

  3. Information is permissibly disclosed under Section 5, such information will no longer be deemed "Confidential Information" for the purposes of this Section 4.

 

  1. Publicity and Announcements.

    1. The Vendor shall not (orally or in writing) publicly disclose or issue any press release, make any other public statement, or otherwise communicate with the media, concerning the termination of the Vendor Agreement, the existence of this Agreement or the subject matter hereof, without the prior written approval of Gesture, except to the extent that the Vendor is required to make any public disclosure or filing regarding the subject matter of this Agreement (i) by applicable law or (ii) under any rules or regulations of any securities exchange of which the securities of such party are listed or traded or (iii) in connection with enforcing its rights under this Agreement.

    2. The Vendor shall not make, publish, or communicate to any person or entity or in any public forum any comments or statements (written or oral) that intentionally seek to denigrate or disparage, or are detrimental to, the reputation or stature of Gesture or its businesses, or any of its employees, directors and officers, existing and prospective customers, suppliers, investors, and other associated third parties.

  2. General Provisions.

    1. Notices. Any notices, requests, consents, claims, demands, waivers, summons, or other legal process, or similar types of communications hereunder (each, a "Notice") must be in writing and addressed to the relevant Party at the address designated by the receiving Party in accordance with this Section 6.1. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only (i) on receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section 6.1.

    2. Governing Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of New York without regard to the conflict of laws provisions of such State. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the federal courts of the United States of America or the courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

    3. Amendments. This Agreement, and each of the Terms and provisions hereof, may only be amended, modified, waived, or supplemented by an agreement in writing signed by each Party.

    4. Assignments. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other Party. No assignment will relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing will be null and void. This Agreement will inure to the benefit of and be binding on each of the Parties and each of their respective permitted successors and permitted assigns.

    5. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which constitute one and the same agreement. Delivery of an executed counterpart of this Agreement electronically or by facsimile is effective as delivery of an original executed counterpart of this Agreement.

    6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

    7. Severability. If any term or provision of this Agreement is declared invalid, illegal, or unenforceable in any jurisdiction, the other terms and provisions of this Agreement remain in full force and effect.

    8. Entire Agreement. This Agreement is the sole and entire agreement of the Parties regarding the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

    9. No Third Party Beneficiaries. Except as expressly set out in the second sentence of this Section 6.9, this Agreement benefits solely the Parties hereto and their respective permitted successors and permitted assigns, and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

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