Version Date: December 11, 2020
This Marketplace Participation Agreement(this "Agreement") contains the terms and conditions that govern your participation and placement of products in the SohoMuse Marketplace, which islocated on Company’s website (the “Marketplace”) and constitutes a binding contract by and between you or the entity you represent (“you“ or “your”), and SohoMuse,Inc. (“Company”). This Agreement takes effect when you affirm, either by written affirmation or your conduct, your participation in the Marketplace, including, without limitation, an affirmation email or your submission of products to Company for placement in the Marketplace. You hereby represent to Company that you are lawfully able to enter into contracts, and if you are entering into this Agreement on behalf of an entity, you represent to Company that you have the legal authority to bind such entity. For good, valuable, and legally sufficient consideration, you agree to the following:
1. GRANT OF RIGHTS. Company shall have the right to post your submitted content, list your name, website, and other general information in the Marketplace. You hereby grant to Company and our affiliates a non-exclusive, worldwide, royalty-free license to use any trademark, servicemark, trade name, other proprietary logo or insignia, URL, domain name, business identifier, or other content that you provide to Company (collectively, “Your Content”) in connection with the Marketplace. You grant to Company and its affiliates a non-exclusive, worldwide, royalty-free license to reproduce, publish, display, distribute and translate all or any part of Your Content in connection with the Marketplace and Company’s marketing and promotional efforts there of, includingin its newsletter and on its social media accounts. You will ensure you have all rights necessary to grant to Company the rights described in this section. Company shall have the right to make reasonable changes or alterations to Your Content to configure it into the Marketplace properly. As between the parties, you ownand reserve all right, title, and interest in and to your Content.
Company may make available to you a small graphic image that identifies you as a participant in the Marketplace (the“Marketplace Logo”), which Company may modify from time to time, and you can add to your website and social media if desired.
Company hereby reserves all rights in the Marketplace Logo and in all of Company’s intellectual property not granted herein. Company’s granted rights shall be revocable and non-transferrable. You will not have the right to use the Marketplace Logo or any of Company’s intellectual property outside of the scope of the rights mentioned herein without Company’s prior written permission. Also, you do not have the right to transfer, assignor sublicense this Agreement, or any of the granted rights.
2. CONFIDENTIAL INFORMATION. You agree to treat any non-public information disclosed by Company, including the terms and conditions of your particular agreement, as confidential information and not disclosed it to any third parties, excluding your professional advisors or as required by law.
3. DISCLAIMERS. THE MARKETPLACE, COMPANY’S WEBSITE, AND ANY BENEFITS OR OTHER MATERIALS THAT COMPANY MAY OFFER THROUGH THE MARKETPLACE (COLLECTIVELY THE “MATERIALS”) ARE PROVIDED “AS-IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANYKIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE MARKETPLACE OR MATERIALS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANT ABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUIET ENJOYMENT,AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
4. LIMITATION OF LIABILITY. COMPANY WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES,OR FOR ANY LOSS OF REVENUE, PROFITS, OR GOOD WILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING IN CONNECTION WITH: (A) YOUR PARTICIPATIONIN THE MARKETPLACE; (B) YOUR USE OF MATERIALS; OR (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THESE TERMS, THE MARKETPLACE, OR YOUR USE OF OR ACCESS TO MATERIALS. THE AGGREGATE LIABILITY OF COMPANY ARISING FROM THE MARKETPLACE AND DAMAGES WILL BE LIMITED TO A REFUND OF WHAT YOU MAY HAVE PAID COMPANY WITHIN THE MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and othertorts.
You agree that your relationship with all potential and actual consumers does not involve Company. Company is not obligated to intervene in any dispute arising between you and consumers. Under no circumstances will Company be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary, or other damages whatsoever that result from or relate to your interaction with a consumer. These limitations will apply even if Company has been advised of the possibility of such damages. The foregoing limitations will apply to the fullest extent permitted by applicable law.
5. INDEMNIFICATION. You agree to indemnify, defend, and hold harmless Company, its directors, officers, employees, subcontractors, affiliates, agents, successors, and assigns (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees(collectively, “Claims”), to the extent that such Claims are based upon or arises out of: (a) your breach of any representation, warranty, obligation, condition, indemnity, guarantee, or other covenant under this Agreement; (b) your gross negligence or willful misconduct; or (e) the performance, non-performance or liability there from of your products or services, including the timely delivery thereof.
6. INDEPENDENT CONTRACTORS. You and Company are independent contractors, and this Agreement does not create a partnership, joint venture, agency, fiduciary, or employment relationship. The relationship between the parties does not impose any liability attributable to such a relationship upon either party whatsoever.
7. NON-EXCLUSIVITY. This Agreement is not intended to create, nor will it be construed as creating, any exclusive arrangement between the parties. This Agreement will not restrict either party from entering into similar contracts with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.
8. ASSIGNMENT. All the terms and provisions of this Agreement will be binding upon and inure to the parties’ benefit to this Agreement and their respective heirs, successors, permitted assigns, and legal representatives. You will have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party.
9. APPLICABLE LAWS. This Agreement will be governed by and interpreted in accordance with the laws of the State of NewYork, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the state and federal courts located in New York City, New York with respect to any dispute or claim arising out of or in connection with this Agreement.
10. ARBITRATION. Company may elect to resolveany controversy or claim arising out of, or relating to, this Agreement by mediation or binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in New York, New York or Los Angeles, California (location determined by Company), and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Company may seek any interim orpreliminary relief from a court of competent jurisdiction in New York or LosAngeles necessary to protect Company’s rights or property (or of Company’s agents, suppliers, and subcontractors), pending the completion of arbitration, and to enforce an arbitration award.
11. SEVERABILITY. If any provision of thisAgreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of the Agreement, and the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained within the Agreement.
13. MODIFICATION. Company may from time to time modify this Agreement, or change or discontinue the Marketplace as awhole, or any aspect of it. Company will notify you of changes by sending you an email or updating the online version of this Agreement, which you are responsible for checking periodically. Changes will be effective as of the date of notification or posting. By continuing your participation in the Marketplace, you agree to comply with and be bound by the most current version of this Agreement.