MARKETPLACE SELLER AGREEMENT
This Marketplace Seller Agreement is entered into as of _____________(the “Effective Date”)_by and between Venus Vibes LLC (D.B.A., V FOR VIBES) with its principal place of business at 3901 NW 79th Avenue, Doral, FL, 33166 (“Company”) and _________________, with its business address at ______________________________________(the “Seller”). Company and Seller may be referred to herein individually as “a party” and together as “the parties.”
NOW, THEREFORE, in consideration of the mutual promises and the covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound by the terms of this Agreement, herebyagree as follows:
1. Our Services
a. Services. Company has developed and designed V for Vibes, available at https://www.vforvibes.com, a female, male, LGBTQ+ sexual empowerment, shopping and sex toy destination, marketplace and platform (the “Platform”) that connects sellers of sexual health and wellness products with Purchasers (as defined herein).
i. Through the Platform, Company provides sellers the ability to showcase andsell their products and services.
ii. Company may use or incorporate third party companies to provide some or all parts of the Platform, software, applications, products or services hereunder (collectively, “Third Party Service Providers”) as part of the services provided hereunder.
i. Seller may list items for direct sale through the Platform and will be the “seller of record” for all transactions through the Platform. If Seller lists an item on the Platform, Seller represents and warrant that Seller has all ownership rights to the product for sale, as well as all ownership, licensing, or use rights to any and all Content, media, documents, or text uploaded or added to the listing.
ii. Orders placed through the Platform may be shipped worldwide.
iii. Orders must be shipped to the address designated by Purchasers only by a major shipping carrier (i.e. USPS, Federal Express, UPS) with tracking systems in place that provide updates upon shipment and delivery. Orders must be shipped within the timeframe as stated in the listing.
iv. All listed products are subject to return or exchange according to Seller’s returns and exchanges policy, which must be included with each individual product listing.
i. “Applicable Laws” means all applicable international, national, federal, state, provincial, and local laws, rules, regulations, directives, and governmental requirements currently in effect, or as they become effective.
iii. “Purchasers” means a user that is using the Platform for certain activities including, but not limited to: browsing listings, purchasing a product, etc.
iv. “Content” means all information, photos, documents, messages, queries, and any other text, content, or data that Seller or a Purchaser submits, makes available or uploads to the Platform or otherwise provides to Company for use with the Platform.
a. Company grants and Seller accepts a non-exclusive, non-transferable, limited license to access and use the functionality of the Platform, subject to Seller’s payment of all applicable fees and full compliance with this Agreement and the Policies and Procedures.
b. Seller acknowledges and agree that the Platform is provided solely for the internal use of Seller’s organization in its ordinary course of business. Seller may not use the Platform for any other purposes without prior written authorization from Company.
Seller agrees to not: (a) grant access to any third party for any purpose whatsoever without the prior written consent of Company; (b) make the Platform, in whole or in part, available to any other person, entity or business; (c) sell, sublicense, lease,
permit, transfer, copy, reverse engineer, decompile or disassemble the Platform, in whole or in part, or otherwise attempt to discover the source code to the software used in the Platform; or (d) modify, alter, integrate, combine the Platform or associated software with any other software or services not provided or approved by Company. Seller has and will obtain no rights to the Platform except for the limited rights to use the Platform expressly granted by this Agreement.
c. Seller grants Company a perpetual, royalty-free, world-wide, irrevocable license to use, copy, modify, create derivative works from, display and distribute, via any present or future medium, Seller’s Content in order to provide the Platform services pursuant to this Agreement. Seller’s Content (excluding any personal or Confidential Information) transmitted to certain parts of the Platform, may be posted in public areas on the Platform, including without limitation in a compilation format, and as such will be publicly visible and accessible. In addition, Seller grant to Company a non-exclusive license to use Seller’s name, trademarks, copyrights, logos and any other materials provided by Seller (“Marks”) in connection with the Platform. Company acknowledges that ownership of the Marks belongs to Seller and that all use of the Marks by Company shall inure to Seller’s benefit and be on Seller’s behalf.
a. In order to use certain of the Platform services, Seller will be required to create an account (“Account“). Seller agrees to provide accurate, current and complete information and maintain and promptly update Account information as necessary to maintain its accuracy. Company reserves the right to suspend or terminate access to and use of the Platform, or any portion thereof, on the basis of inaccurate or incomplete Account information. In certain instances, Company may require proof of identity to create or access an Account, or to access or use the Platform.
b. Seller may control its Account and how Seller interacts with the Platform by changing the settings in Seller’s Account. By accessing the Platform and/or setting up an Account, Seller consents to having these Terms provided in electronic form and that all terms, notices, disclosures, and other communications Company provides to Seller electronically satisfy any legal requirements that such communications be in writing. Seller acknowledges that when Seller creates and Account and/or provides any contact information, including an email address or cellphone number in connection with that activity, or service (“Contact Information”), Seller agrees that this action constitutes a purchase or inquiry establishing a business relationship with Company. Seller expressly consents to Company communicating with Seller about the Platform and related services using the Contact Information provided by Seller.
c. Seller is solely responsible for all activity that occurs when the Platform is accessed through Seller’s Account. Seller acknowledges and agree that Seller is solely responsible for ensuring that any authorized user of Seller’s Account understands and is aware of the terms herein, and that no person who is not an authorized user be allowed access to the Platform. Seller must notify Company immediately of any breach of security or unauthorized use of Seller’s Account. Company will not be liable for any losses or damages arising from Seller’s or Seller’s authorized users’ failure to protect passwords or Account information and/or caused by any unauthorized use of Seller’s Account.
a. Responsibility for Content. Seller is solely responsible for any and all Content which Seller submits, makes available, or publicizes through the Platform. Seller represents and warrants that all of its Content is accurate and not misleading and is not in violation of any third party rights. Prior to submission, Seller must have obtained all necessary rights and licenses in all elements of its Content. Other than Seller’s Contact Information or other personal information, Seller’s Content is not confidential or privileged, and Seller waives rights of privacy or publicity in connection with its Content.
b. Permitted Content. Seller will not use the Platform to upload, download, display, perform, transmit, or distribute any Content that is, nor will Seller engage in any activities that are deceptive, abusive, threatening, tortious, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs. Seller further agrees that it will not submit any Content that contains Prohibited Materials. “Prohibited Materials” means, as determined in Company’s sole discretion, (i) materials communicating hate or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, (ii) materials promoting illegal activities; (iii) materials that infringe or violate the rights of others (including copyright, trademark, trade secret, privacy and/or publicity rights), (iv) defamatory, libelous, obscene, offensive or harmful material, (v) profane or vulgar language, (vi) materials that violate any Applicable Laws, or Company’s Policies and Procedures, and (vii) materials that otherwise violate this Agreement. For the purpose of clarity, Prohibited Materials does not include medical dictionary terminology in relation to sexual health or wellness products.
c. Use of Content. The Platform may provide users with the ability to send email messages to other users and non-users and to post messages. Seller must evaluate, and will bear all risks associated with, the use of or reliance on information obtained through the Platform. Company is under no obligation to review any Content (including any messages) posted on or sent through the Platform; Company will not pre-screen or actively review Content but Company may refuse or delete any Content of which we become aware that fails to fulfill the purpose of the Platform, is in breach of this Agreement, is contrary to law, or is otherwise inappropriate in Company’s sole discretion. Under no circumstances will Company be liable in any way for any Content posted by users of the Platform, including, but not limited to, liability for any errors, inaccuracies, or omissions therein, or for any loss or damage of any kind incurred as a result of the use thereof. Company will have no obligation or liability to Seller to maintain, store, or license any Content.
d. Rights in Submissions.
i. Seller’s Content may be modified or adapted for purposes of transmission, display, or distribution over computer networks or any media formats, in order to conform to any requirements or limitations in working with such networks,
services, devices or media. Company does not claim any ownership of the Content submitted, posted, or displayed by Seller. Seller retains any and all ownership rights to its Content and is responsible for protecting those rights. Company reserves the right at all times to remove or refuse distribution of any Content on the Platform.
5. Services Rules
a. Seller agrees to not access or use the Platform for any purposes other than those specifically permitted.
b. Seller agrees that it will at all times promote and provide products to Purchasers in an ethical and professional manner and in accordance with this Agreement. Seller will conduct business in a manner that reflects favorably at all times on the Platform and the good name, goodwill and reputation of Company.
c. Seller agrees not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated
system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Platform; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to remove, circumvent, disable, damage or otherwise interfere with, security-related features of the Platform, features that prevent or restrict use or copying of any Content accessible through the Platform, or features that enforce limitations on use of the Platform; (v) taking any action that imposes, or may impose
at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Platform; (vii) collecting or harvesting any personally identifiable information, including account names, from the Platform; (viii) using the Platform for any commercial solicitation purposes other than those explicitly permitted; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, stealing or assuming and person’s identity (whether a real identity or nickname or alias), conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Platform; (xi) accessing any Content on the Platform through any technology or means other than those provided or authorized by the Platform; or (xii) bypassing the measures Company may use to prevent or restrict access to the Platform, including without limitation features that prevent or restrict
use or copying of any Content or enforce limitations on use of the Platform or the Content therein.
d. Furthermore, Seller may not use the Platform to develop, generate, transmit or store information that: (A) infringes any third party’s intellectual property or other proprietary right; (B) is defamatory, harmful, abusive or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Platform, and (D) is harassment or a violation of privacy or threatens other people or groups of people.
e. The Platform contains confidential and trade secret information owned or licensed by Company, and Seller agrees to take reasonable steps at all times to protect and maintain the confidentiality of such information.
f. Company has complete discretion as to the presentation, look and feel of the Platform, Content included on the Platform, positioning, location and presentation of Seller’s Content. Company determines the length of time Seller’s products may be listed for sale on the Platform.
6. Seller Responsibilities
a. Seller is responsible for
i. the quality and accuracy of product imagery, information, stock quantity
ii. providing all relevant product and brand information
iii. product quality, and ensuring that there are no defects in the products
shipped to Purchasers
iv. handling all related Purchaser customer service inquires and issues.
v. processing, shipping and handling all Purchaser orders. Seller sets the shipping costs which are charged on top of the order price, or Seller may elect to include the shipping costs in the final product price.
7. Neutral Platform
The Platform is provided and functions solely as a neutral platform and digital marketplaces where vendors sell their products and customers purchase from vendors. Seller acknowledges that Company has no control over, and no duty to take any action regarding the transactions on the Platform. Company has no control over the ability of Purchasers to pay for products. Company does not pre-screen users of the Platform or the Content or information they provide. Company cannot ensure that a Purchaser will actually complete a transaction. Company is not involved in or a party to the actual transactions. Any dispute Seller has with a Purchaser is between Seller and that Purchaser, and Company will not be a party to that dispute. However, in Company’s sole discretion, if Seller is unable to resolve a dispute with a Purchaser, Company may use commercially reasonable efforts to mediate and arrive at a mutually agreed upon resolution.
8. Proprietary Rights
a. The Platform and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “Company Content”), and all intellectual property rights related thereto, are the exclusive property of Company and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights, and Seller agrees not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by this Agreement is strictly prohibited. This Agreement does not provide Seller with title or ownership of the Platform or any portion thereof or Company Content, but only a limited right to use the same solely upon the terms expressly set forth herein.
b. Feedback. Company may use any reports, comments, ratings, reviews and suggestions in any form regarding the Platform that Seller provides to Company (collectively, the “Feedback”). Seller grants Company a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate and use the Feedback.
a. Pricing. Seller sets the price for its products. Seller must include any additional charges as applicable.
i. Seller may add shipping fees to the listing, or include them within the price for the products.
ii. Seller is responsible for including tax amounts if and when applicable. If the Seller is VAT registered, Seller is solely responsible for ensuring that it fully complies with current VAT regulations and accounting for VAT correctly. For sales to be delivered into the United States, Seller acknowledges that the price it lists is prior to the imposition of applicable sales tax.
iii. The Purchaser is responsible for paying import taxes if and when applicable.
iv. Seller has complete discretion over how it wishes to price its product(s) except that Seller may not price its product(s) higher than those prices set publicly on its own website or other direct sales channels. If Seller offers special rates and discounts for its products, it will offer those same discounts and special rates through the Platform.
b. Commission Fees. Company charges Sellers a fifteen percent (15%) commission (“Commission Fee”) on every product sold. This amount includes all payment processing fees incurred by Company. All transactions through the Platform are handled by Company’s Payment Processor. Seller will receive payment for all transactions in a given month at the end of such month, minus the Commission Fees, any credits, chargebacks and other fees.
i. Company reserves the right to change the amount of Commission Fees at any time in its sole discretion. Seller shall be notified of any such change at least thirty (30) days in advance to the email address as provided in Seller’s Account.
c. Payment Processor. Company uses a third-party payment processor (the “Payment Processor”) to handle credit card transactions through Seller’s Account. The processing of payments will be subject to the terms, conditions and privacy policies of
the Payment Processor in addition to these Terms. We are not responsible for errors, the acts or omissions by the Payment Processor. By utilizing the Platform, Seller agrees to be paid, as applicable, through the Payment Processor, in accordance with the applicable payment terms. Seller is responsible for any chargebacks and the associated costs that arise due to Seller’s acts or omissions.
d. Company may add new services or features to the Platorm for additional fees and charges, or add or amend fees and charges for existing services, at any time in its sole discretion. Company will provide Vendor with prior notice of any change in fees. Vendor’s continued use of the Platform after the fee change comes into effect constitutes Vendor’s agreement to pay the modified fee amount.
e. Chargebacks. Seller is responsible for any chargebacks due to their acts or omissions.
10. Non-Circumvent Policy
Seller recognizes that Company has proprietary relationships with its Purchasers, contractors, vendors and services providers (the “Protected Parties”). Seller hereby agrees that it will not, directly or indirectly, contact, deal with or otherwise involve itself with any Protected Parties introduced, directly or indirectly, by or through the Platform, for the purpose of such Parties’ avoiding the payment of the Commission to Company or otherwise, without the prior written approval of Company. Seller agrees that its obligations in this Section are necessary and reasonable in order to protect Company and its business. Accordingly, Seller agrees that, in addition to any other remedies that may be available, Company shall be entitled to seek injunctive relief against the threatened breach of this Section or the continuation of any such breach, without limiting any other rights and remedies to which Company may be entitled to at law or in equity
11. Returns and Exchange Policy
Seller must provide its return and exchange policy in every listing. Seller may elect to offer refunds or exchanges for products, but either way, must make it clear and conspicuous what its policy is. Company is not responsible for handling returns or exchanges.
Company cares about and takes very seriously the integrity and security of Seller’s personal information. Seller takes commercially reasonable administrative, physical and electronic measures designed to safeguard and protect the Platform, content, materials and data therein from unauthorized access, use, modification, deletion and/or disclosure. However, Company cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use Seller’s personal information for improper purposes. Seller acknowledges that it provides its personal information at its own risk.
13. Third-Party Links and Information
The Platform may contain links to third-party materials that are not owned or controlled by Company. Company does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If Seller accesses a third-party website or service from the Platform, Seller does so at its own risk, and Seller understands that this Agreement and Company’s Policies and Procedures do not apply to its use of such sites. Seller expressly relieves Company from any and all liability arising from its use of any third-party website, service, or content.
14. Confidential Information.
a. Either Party (the “Disclosing Party”) may from time to time disclose Confidential Information to the other Party (the “Recipient”). “Confidential Information” is all nonpublic information concerning the business, technology, and strategies of the Disclosing Party which is conveyed to the Recipient orally or in tangible form and is either marked as “confidential” or which, due to the circumstances surrounding its disclosure or its nature or sensitivity, should have been understood by the Recipient as intended to be treated as “confidential” and subject to the undertakings of this Agreement. Recipient will keep in confidence and trust and will not disclose or disseminate, or permit any employee, agent or other party working under Recipient’s direction to disclose or disseminate the existence, source, content or substance of any Confidential Information to any other party. Recipient shall use Confidential Information of the Disclosing Party only as necessary for the performance of this Agreement.
b. The commitments in this Agreement will not impose any obligations on Recipient with respect to any portion of the received information which: (i) is now generally known or available or which hereafter, through no act or failure to act on the part of Recipient, becomes generally known or available; (ii) is rightfully known to Recipient at the time of receiving such information; (iii) is furnished to Recipient by a third party without restriction on disclosure and without a breach by such third party of any confidentiality undertaking with respect thereto; (iv) is independently developed by Recipient or its representatives without the use of Confidential Information; or (v) is required to be
disclosed by operation of law or by an instrumentality of the government, including but not limited to any court, tribunal or administrative agency; provided that, in the case of any disclosure required by court order, the Recipient shall give the Disclosing Party as much advance notice as is reasonably practicable under the circumstances so as to permit the Disclosing Party to take commercially reasonable actions at its own expense
to prevent disclosure. Each Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Confidential Information and that each Party may seek, without waiving any other rights or remedies, such
injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. At Disclosing Party’s option, Recipient shall promptly either destroy all Confidential Information in tangible form in its possession, or return all such copies to
Disclosing Party, and in either event provide a written certification confirming the same, promptly upon Disclosing Party’s written request.
15. Representations and Warranties.
a. Company represents and warrant that: (a) we have the right, power and authority to enter into and to perform pursuant to this Agreement; and (b) the services we provide hereunder will be performed in a professional and workmanlike manner in accordance with industry standards. In the event that Company breaches this warranty, Company will, to the extent possible, re-perform the services in a manner consistent with the warranty, with the understanding that re-performance is the sole and exclusive remedy for any breach.
c. Seller further represents and warrants that it owns, controls, or has sufficient rights in and to its products, and that it will not infringe upon or violate the intellectual property rights of others. Seller represents and warrants that all of its Content is wholly original and created by Seller, is accurate and not misleading and is not in violation of any third party rights. Seller will make no false or misleading representations with regard to its products that if offers to Purchasers. Seller will provide its products in conformance and compliance with its Content, specifications, descriptions and information as provided through the Platform. Seller will inform its Purchasers and Company if Seller is unable to meet its obligations and timelines for any Purchasers.
d. Seller acknowledges and agrees that it is solely responsible for the products that it sells to Purchasers and any advice, information, suggestions, recommendations or guidance it provides to Purchasers, and for any loss, damage or other liability that may arise in connection with its use of the Platform.
i. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SELLER IS SOLELY RESPONSIBLE FOR ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE PLATFORM OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. FURTHERMORE AND WITHOUT LIMITATION, COMPANY DOES NOT WARRANT THAT THE PLATFORM WILL BE AVAILABLE AT ANY PARTICULAR TIME, UNINTERRUPTED OR ERROR-FREE, OR THAT THE USE OF THE PLATFORM WILL RESULT IN ANY PARTICULAR RESULTS.
ii. SELLER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE CONTENT OF ANY USERS OF THE PLATFORM OR ANY OTHER THIRD PARTY CONTENT, INFORMATION OR MATERIALS. AS SUCH, COMPANY IS NOT RESPONSIBLE FOR THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF ANY USER CONTENT FOR ANY PURPOSE. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT ADVERTISED OR OFFERED BY A USER OR THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR SERVICE.
iii. COMPANY IS NOT RESPONSIBLE FOR NON-PAYMENT BY PURCHASERS OR ISSUES WITH THIRD PARTY PAYMENT PROCESSORS. SELLER ALSO ACKNOWLEDGES THAT COMPANY DOES NOT SCREEN PURCHASERS IN ANY WAY.
iv. COMPANY MAY ALTER, SUSPEND, ADD TO, OR DISCONTINUE THE PLATFORM IN WHOLE OR IN PART AT ANY TIME FOR ANY
REASON, WITHOUT NOTICE OR COST. COMPANY MAY PERMANENTLY OR TEMPORARILY TERMINATE OR SUSPEND SELLER’S ACCESS TO THE PLATFORM WITHOUT NOTICE AND LIABILITY FOR ANY REASON, INCLUDING IF IN COMPANY’S SOLE
DETERMINATION SELLER VIOLATES ANY PROVISION OF THIS AGREEMENT, OR FOR NO REASON. COMPANY DOES NOT ASSUME ANY LIABILITY FOR THE FAILURE TO STORE OR MAINTAIN ANY OF SELLER’S MATERIALS, COMMUNICATIONS, ACCOUNT INFORMATION, OR PERSONAL SETTINGS. THE PLATFORM MAY BECOME UNAVAILABLE DUE TO MAINTENANCE OR MALFUNCTION OF COMPUTER EQUIPMENT, SERVERS, OR OTHER REASONS.
v. BY HAVING ACCESS TO THE PLATFORM, SELLER AGREES THAT COMPANY AND ITS PARTNERS MAY PLACE ADVERTISEMENTS ON THE PLATFORM. THE TYPES OF ADVERTISEMENTS ARE SUBJECT TO CHANGE.
vi. IF SELLER IS DISSATISFIED WITH THE PLATFORM, SELLER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ITS USE OF THE PLATFORM.
vii. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
a. Seller will indemnify, defend and hold harmless Company, and its directors, officers, employees, agents and representatives from and against any and all losses, damages, demands, claims, costs, penalties, injuries, interest, or expenses (including without limitation reasonable attorney fees and costs) (“Losses”) howsoever caused, directly or indirectly arising out of or relating to (i) the use or misuse of the Platform or any portion thereof by Seller; (ii) any breach or alleged breach of any representations, warranties, obligations or responsibilities contained herein; (iii) the modification of the Platform or any information contained therein, integration, alteration or the combination of all or part of the Platform with any other software, program, product or device that is not expressly permitted; (iv) any claim relating to the products that Seller provides to a Purchaser; (v) negligence or misconduct; (vii) any use of the products that cause injury or damage to a Purchaser or (viii) Seller’s violation of Applicable Laws.
17. Limitation of Liability
a. IF SELLER IS DISSATISFIED WITH THE PLATFORM, SELLER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF COMPANY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM SELLER’S ACCESS TO OR USE OF THE PLATFORM;(III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PLATFORM; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE PLATFORM; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO SELLER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT SELLER PAID TO COMPANY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
c. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
18. Governing Law and Dispute Resolution
a. Governing Law, Dispute Resolution, Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflict of laws rules. The parties submit to the exclusive jurisdiction and venue of the state and federal courts within Miami-Dade County, Florida for purposes of any suit, action or other proceeding arising out of, or relating, to this Agreement. Each party knowingly, voluntarily and intentionally waives its right to a trial by jury, to the
extent permitted by law, in any suit, action or other proceeding arising out of, or relating, to this Agreement.
b. Expenses and Attorneys’ Fees. In the event any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
This Agreement is effective as of the Effective Date and remains in effect unless and until terminated by either Party. Seller may terminate this Agreement at any time by notifying Company through its Account, or when Seller ceases using the Platform. Company may immediately suspend or terminate Seller’s license or access to all or any portion of the Platform in Company’s sole discretion, and/or if Company becomes aware or reasonably suspects that: (a) Seller’s use of the Services violates applicable laws or regulations or any terms of this Agreement, or (b) Seller’s continued use of the Services will disrupt use of the Services by others, poses a security risk or, may harm Company or its systems, may subject Company or any third party to liability or if Company believes in its reasonable discretion that Seller’s use of the Services is unsuitable in any way. Company may provide Seller with notice of any such suspension and an opportunity to remedy the issue unless Company in good faith believes doing so will result in imminent harm.
a. Assignment. Neither party may assign their obligations or liabilities hereunder without the prior written consent of the other party. Notwithstanding the foregoing, Company may assign this Agreement to any successor in interest as a result of a merger or a
stock or asset purchase. Any attempted assignment in violation of this provision shall be deemed void. This Agreement shall be binding upon and shall benefit the parties and their respective successors and permitted assigns.
b. Insurance. Seller agrees to maintain appropriate insurance levels commensurate with its respective business and industry standards.
c. Electronic Communications. For contractual purposes, Seller consents to receive communications from Company in an electronic form, and Seller agrees that all termsand conditions, agreements, notices, disclosures, and other communications that are
provided to Seller electronically satisfy any legal requirement that such communications would satisfy if it were in writing. All notices shall be effective upon the day following sending by electronic mail.
d. Notices: Any notices or communication under this Agreement shall be in writing andgiven by electronic mail. The Parties agree that all terms and conditions, agreements, notices, disclosures, and other communications that are provided electronically satisfyany legal requirement that such communications would satisfy if they were otherwise mailed. All notices shall be effective upon the day following sending by electronic mail. Each Party may change its email address for receipt of notice by giving notice of such change to the other Party.
e. Entire Agreement / Severability. This Agreement shall constitute the entire agreement between Seller and Company. If any provision is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect
f. No Waiver. No waiver of any term herein shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision shall not constitute a waiver of such right or provision.
g. Survival. Seller acknowledges and agrees that all indemnification, confidentiality, intellectual property, governing law, dispute resolution, limitation of liability and other clauses including those provisions which by their terms contemplate survival shall survive the termination or expiration of this Agreement regardless of the cause of such termination.
h. Force Majeure. Neither party shall be liable to the other party for any delay or failure of said party to perform its obligations hereunder (except for payment obligations) if such delay or failure arises from any cause or causes beyond the reasonable control of such party. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by either party in providing required resources or support or performing any other requirements hereunder.