MINDSHARE MARKETPLACE VENDOR AGREEMENT
Date Effective: June, 2023
WHEREAS, Merchant is engaged in the manufacture and sale of business or consumer products and/or services;
WHEREAS, Mindshare Marketplace is engaged in the business of curating, promoting and making goods and services available for sale to other businesses on its online marketplace;
WHEREAS, Merchant seeks to make its products and services available on a “storefront” on the Mindshare Marketplace in order to faciliate online sales on a wholesale basis to other businesses, which may include exclusive products or designs as shall be determined by the parties from time-to-time (each a “Product/Service” and collectively the “Products”, as more fully described in Schedule A, annexed hereto and fully incorporated herein);
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
Every Product/Service advertised for sale by Merchant on the Mindshare Marketplace is subject to the following terms and conditions:
1. Subscription. Merchant hereby subscribes as a non-exclusive vendor of Products/Services it wishes to sell online on Mindshare’s Marketplace platform during the Term.
2. Term. The “Term” of this Agreement shall be continued until a party provides written notice of termination on at least thirty (30) days prior written notice.
3. Placement of Orders.
Merchant is responsible for merchant banking, delivery, shipping and customer service associated with all Orders of the Product/Service/Services and shall respond to any customer service questions. In this regard, Merchant will cooperate in order to ensure that customer satisfaction is attained.
4. Marketing. During the term of the Agreement, Merchant agrees to share/re-post any of Mindshare Marketplace’s social media posts which promote the sale of the Merchant or its Products/Services, using phrasing as may be recommended by the Mindshare Marketplace from time-to-time, such as, “…as featured on the Mindshare Marketplace” (the “Social Media Posts”). Merchant hereby grants consent and authorization to Mindshare Marketplace to repost and share any such Social Media Posts.
5.1 License. Merchant will deliver to Mindshare Marketplace Product/Service images, Product/Service descriptions, Product/Service marketing content, Product/Service creator bios and images, as well as trademarks, logos and designs associated with its brand (the “Product/Service IP”, as shall be provided by Merchant for each Product/Service at the time a Product/Service is placed on the Mindshare Marketplace site) for Mindshare Marketplace to include on the “storefront” associated with such Product/Service or Products/Services on the Mindshare Marketplace site and platform, as well as on Mindshare Marketplace social media channels. Merchant hereby grants to Mindshare Marketplace a non-exclusive right and license to use and display the Product/Service IP in connection with the promotion and sale of the Products/Services on such social media sites/platforms as Mindshare Marketplace chooses; in newspapers and magazines, on-line blogs and publications and in promotions as Mindshare Marketplace deems appropriate.
5.2 Ownership of the Product/Service IP. Merchant warrants and represents that: (i) it is the owner or licensee of the Product/Service IP; (ii) it owns or has secured all necessary rights to grant the license to Mindshare Marketplace set forth herein; and (iii) the Product/Service IP does not infringe upon the rights of any third party. Mindshare Marketplace acknowledges Merchant’s ownership of the Product/Service IP and agrees that it will do nothing inconsistent with such ownership. Mindshare Marketplace agrees that nothing in this Agreement shall give Mindshare Marketplace any right, title or interest in or to the Product/Service IP other than the right to use the Product/Service IP in accordance with this Agreement. Mindshare Marketplace agrees not to use the Product/Service IP for any other purpose, without the prior written consent of Merchant.
5.3 License from Mindshare Marketplace to Merchant. Mindshare Marketplace does hereby grant to Merchant a non-exclusive limited right and license to use its trademarks, logos, branding and links to sales pages for the Products/Services (collectively, the “Mindshare Marketplace Trademarks”) solely for use in connection with the Social Media Posts.
5.4 Ownership of Mindshare Marketplace Trademarks. Merchant acknowledges Mindshare Marketplace’s ownership of the Mindshare Marketplace Trademarks and agrees that it will not do anything inconsistent with such ownership. Merchant agrees that nothing in this Agreement shall give Merchant any right, title or interest in or to the Mindshare Marketplace Trademarks other than the right to use the Mindshare Marketplace Trademarks in accordance with this Agreement. Merchant agrees not to use the Mindshare Marketplace Trademarks, with or without other words, as part of its trade name, without the prior written consent of Mindshare Marketplace.
12. Indemnification. Each party (an “Indemnifying Party”) agrees to at all times defend, indemnify and hold harmless the other party, its affiliates, their successors, transferees, assignees and licensees and their respective parent and subsidiary companies, agents, associates, officers, directors, shareholders and employees (collectively, the “Indemnified Parties”) of each from and against any and all claims, causes of action, damages, liabilities, costs and expenses, including legal fees and expenses, arising out of or related to breach by Indemnifying Party of any warranty, representation or covenant in this Agreement.
13. Limitation of Liability. MINDSHARE MARKETPLACE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE FUNCTIONALITIES OF ITS SITE OR THE MINDSHARE MARKETPLACE PLATFORM. MINDSHARE MARKETPLACE WILL NOT BE LIABLE TO MERCHANT, ITS CUSTOMERS, EMPLOYEES OR AGENTS, UNDER ANY CLAIM OR CIRCUMSTANCES (INCLUDING WITHOUT LIMITATION ANY CIRCUMSTANCE INVOLVING A FINDING THAT A WARRANTY OR REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE), WHETHER THE CLAIM SOUNDS IN CONTRACT, TORT OR OTHER LEGAL THEORY, FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR REVENUE, LOST SALES, LOST GOODWILL OR LOSS OF USE OF MINDSHARE MARKETPLACE’S SITE OR THE MINDSHARE MARKETPLACE PLATFORM. IN NO EVENT WILL MINDSHARE MARKETPLACE’S AGGREGATE LIABILITY EXCEED THE PURCHASE PRICE FOR THE PRODUCT/SERVICE.
14. Confidentiality. None of the parties hereto shall, during the term of this Agreement or at any time thereafter, communicate, divulge or use for the benefit of any other person, persons, partnership, association, corporation or entity any of another party’s confidential information, knowledge or know-how. A party hereto shall divulge such information only to such of its employees, financial advisors and legal representatives, as must have access thereto in order to satisfy its obligations hereunder. All parties shall take all necessary precautions to ensure that their employees retain such information in confidence.
15. Choice of Law; Venue; Attorney’s Fees. Any disputes arising under this Agreement shall be resolved by arbitration in Florida in accordance with the rules of the American Arbitration Association in Tampa, Florida. Both parties shall be entitled to engage in all forms of discovery as permitted under Florida law. The prevailing party shall be entitled to recover the costs of arbitration unless otherwise determined by the arbitrator and shall be entitled to reasonable attorney’s fees as determined by the arbitrator.
16. Independent Contractor: The Parties shall be and remain independent contractors. Nothing in this Agreement shall constitute any party, inter alia, the general or special agent, legal representative, subsidiary, joint venturer, partner, employee or servant of the others for any purpose, nor shall anything in this Agreement cause the employees of any party to be employees of the others.
17. Non-Disparagement: The Parties agree and covenant that they will not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the other Party or its businesses, or any of its employees, independent contractors, officers, and existing and prospective customers, suppliers, investors, and other associated third parties.
18. Non-Solicitation: The Parties agree, during the Term, and for a period twelve (12) months immediately following the termination of expiration of the Term, not to directly or indirectly, for itself or on behalf of any other person or entity: contact, solicit or communicate with any active customer of the other Party, (or its affiliates) unless part of a previously approved joint-venture arrangement or with the prior approval of such Party; or, solicit, divert, employ, engage or hire any active employees of the other Party.
19. No Waiver. No waiver or delay in enforcement of any breach of any provision of this Agreement shall be construed as a waiver of any rights and/or remedies which COMPANY or ADVISOR may have with respect to any preceding or succeeding breach of this Agreement or delay in enforcement thereof. Further, the acceptance of any payment by COMPANY or ADVISOR hereunder shall not constitute a waiver of any breach of any provision of this Agreement.
20. The parties acknowledge, warrant and represent to each other that in connection with the discussion leading up to the execution of this Agreement, no representation has been made by and relied upon as to the future income, expenses, sales volume or potential profitability that may be derived from hereunder.
21. Integration This Agreement and all ancillary agreements executed contemporaneously herewith constitute the entire agreement between the parties, and there are no other oral or written understandings or agreements between COMPANY and ADVISOR.
22.This Agreement may be amended only by a written instrument signed by the parties hereto.
WE HAVE READ THE FOREGOING AGREEMENT AND HEREBY AGREE TO AND ACCEPT EACH AND ALL OF THE PROVISIONS.