In this Article:
By accepting these Merchant Terms and Conditions (“Terms”) you agree: (a) these Terms and the Platform Agreement (collectively, the “Agreement”) are binding on you and MyFavoriteThings, Inc. DBA Mavely (“Mavely” or the “Company”) and (b) that you have authority to bind you and the entity you represent (“Merchant” or “you”) to the Agreement. Capitalized terms not defined herein shall have the meanings set forth in the Mavely Platform Agreement.
Platform. The Agreement governs Merchant’s use of the technical tools and resources made available to Merchant by Mavely (collectively, the “Platform”), including without limitation the Mavely web-based portal, mobile application, product integration applications and related analytics. Merchant is responsible for the use of the Platform by all Merchant employees, contractors, agents and team members. Merchant agrees to use the Platform, subject to the terms and conditions of the Agreement, to drive sales of its products (the “Products”).
Adherence to the Agreement. Merchant must comply with the Agreement at all times while using the Platform. If you do not agree to any terms and conditions in the Agreement, your sole recourse is to cancel the Agreement, subject to the terms set forth herein. Failure to cancel the Agreement constitutes your continued acceptance of the Agreement.
Merchant Rights:
- Right to publish Products to the Platform for dissemination to customers by Mavely.
- Right to update, remove, or discount Products published on the Platform at any time.
- Right to unpublish all or any Products and/or entire Merchant store from the Platform.
- Right to set a Platform Fee (which shall be no lower than 20%) and Partner Fee applied to all Products published and available on the Platform of the sale price of the Products.
Mavely Rights:
- Right to disseminate Merchant content across the Platform.
- Right to update, remove, or feature Merchant Products on the Platform.
- Right to earn a Platform Fee for all orders for Merchant’s Products driven as a result of the Platform.
- Right to utilize any and all data and information collected regarding the Platform, including as related to the Products, and as a result of the Agreement (the “Data”) to optimize and improve the Platform and Company’s business operations.
Fees.
- Transaction Fees: Merchant agrees to pay Mavely fees equal to the Platform Fee rate plus the Partner Fee rate (each as set out in the Platform Agreement) multiplied by total sales of Merchant’s Products driven as a result of the Platform (the “Transaction Fees”). All payments must be in USD.
- Subscription Fees: Merchant agrees to pay Mavely a platform subscription fee equal to the Subscription Fee (together with the Transaction Fees, the “Fees”).
Reporting and Data. Merchant agrees to send reports of all sales of Merchant’s Products driven as a result of the Platform (the “Reports”) and related data, including any such data reasonably requested by Mavely, based on the agreed Reporting Method set forth in the Platform Agreement. Reports will be deemed final thirty (30) days from delivery and no further refunds, reversals, etc. shall be available thereafter. Sales will be deemed paid once the “Order Display Financial Status” on the Platform is marked as “PAID.”
Terms of Payment. Payment terms are net thirty (30) days from delivery of a invoices/charges. Transaction Fee charges may be delivered via a Charge API or affiliate partnership. Subscription Fees may be delivered via a Charge API or Invoice platform. Merchant shall be responsible for all sales, use, customs, excise or other taxes presently or hereafter payable in regard to sales of its Products through the Platform.
Terms of Refunds. Merchant is responsible for updating Mavely on all Returns. If “Order Display Financial Status” is updated to “REFUND,” Merchant will be responsible to issue a refund call to the charge from Mavely with proof of refund. Mavely will issue an updated invoice and/or credit the Transaction Fees accordingly.
Warranties. Merchant represents, warrants and covenants that: (a) it is in compliance with and shall comply with all applicable laws, regulations, and ordinances in performing under this Agreement, (b) it that it has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement, (c) it shall not abuse the Platform in any way, as determined in Mavely’s sole discretion, and (d) the Products will (i) be free from any defects in workmanship, material, and design; (ii) conform to applicable specifications and other requirements specified by Mavely (iii) be fit for their intended purpose and operate as intended, (iv) be merchantable, (v) be free and clear of all liens, security interests, or other encumbrances, and (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights.
Intellectual Property; Waiver of Right of Publicity. The Platform, the Data and Mavely’s name, logo, trademarks, trade names, service marks, designs, and domain name, and all intellectual property rights related thereto, shall be the sole and exclusive property of Mavely. Mavely grants Merchant a limited, revocable, non-sublicensable, non-transferable right and license to use the Platform solely during the term of this Agreement for the purposes set forth herein. Merchant grants Mavely an irrevocable, perpetual, worldwide, royalty-free license to reproduce and use Merchant’s name, logos, video, stories, testimonial, and/or likeness as provided by Merchant to Mavely (the “Merchant Materials”) for any lawful purposes, including in Mavely’s advertising or promotional materials and in online forums and channels. Merchant waives all claims for remuneration for such use of the Merchant Materials and all rights to inspect or approve all draft, beta, preliminary, and finished content that incorporates the Merchant Materials.
Confidential Information. Merchant will (a) protect Mavely’s information that is identified as confidential or that reasonably should be considered confidential, regardless of when Merchant receives such information; (b) use this information only to fulfill its obligations under the Agreement; and (c) promptly return to Mavely or destroy this information when these the Agreement terminates. Merchant will not, without Mavely’s prior written consent, use any trademark, service mark, commercial symbol, or other Mavely proprietary right, issue press releases or other publicity relating to Mavely or this Agreement, or refer to Mavely in promotional materials.
Indemnification. Merchant will defend, indemnify, and hold harmless Mavely, its affiliated companies, and their respective officers, directors, employees, and agents from and against any claim, loss, damage, cost, or expense that arises, directly or indirectly, from the Products; Product recalls; the Merchant Materials; Merchant’s breach of this Agreement; or Merchant’s negligence, strict liability or intentional misconduct. Merchant shall not enter into any settlement without Mavely’s prior written consent.
Liability. Mavely will not be liable for any indirect, special, consequential, or punitive damages arising out of or relating to this Agreement (whether for breach of contract, tort, negligence, or other form of action). In no event will Mavely’s liability exceed the total Fees paid by Merchant to Mavely during the 3-month period prior to the act that gave rise to liability.
Miscellaneous. Merchant may terminate this Agreement with forty-five (45) days’ prior written notice (email shall suffice). Mavely may terminate this Agreement at any time. Merchant shall be responsible for all Fees incurred up to and including the effective date of termination. All sections of this Agreement that by their nature should survive shall survive termination of this Agreement. Merchant will not assign this Agreement, or any obligation or right in this Agreement without Mavely’s prior written consent. This Agreement is governed by Illinois state law, without reference to any applicable conflict of laws rules. Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement shall be finally settled by arbitration. The arbitration shall be conducted by one arbitrator in accordance with the American Arbitration Association Commercial Rules then in effect. The arbitration shall be seated in Chicago, Illinois. The arbitration award shall be finding and binding on the parties. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party of assets. EACH OF YOU AND THE COMPANY UNDERSTANDS THAT BY AGREEING TO ARBITRATE DISPUTES, EACH IS WAIVING ANY RIGHT TO A JURY TRIAL. Mavely may conduct reasonable audits of Merchant’s records related to this Agreement. Either party’s failure to enforce any provision will not be a waiver of the party’s rights to subsequently enforce the provision. If any provision is held to be invalid, then that provision will be modified to the extent necessary to make it enforceable, and any invalidity will not affect the remaining provisions. MAVELY WILL NOT BE BOUND BY, AND OBJECTS TO, ANY PROVISION THAT IS DIFFERENT FROM OR IN ADDITION TO THE PROVISIONS OF THIS AGREEMENT (WHETHER IN ANY QUOTE, INVOICE, ACCEPTANCE, CONFIRMATION OR OTHERWISE), WITHOUT MAVELY’S PRIOR WRITTEN CONSENT. This Agreement is the entire agreement between Mavely and Merchant for the use of the Platform and sale of the Products and supersedes all prior agreements and discussions.
Revisions; Continued Use. Mavely reserves the right to change the terms and conditions set forth in this Agreement at any time and in its sole discretion. Mavely will provide notice (email shall suffice) of any changes in the Agreement to Merchant. MERCHANT’S CONTINUED USE OF THE PLATFORM FOLLOWING MAVELY PROVIDING NOTICE OF ANY REVISED TERMS WILL CONSTITUTE MERCHANT’S ACCEPTANCE OF THE REVISIONS. IF MERCHANT DOES NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, MERCHANT MUST CANCEL THE AGREEMENT IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN.