The following summary (“Summary of Terms”) is subject to the terms and conditions set out in the Schedules to this Agreement (and together, this Summary of Terms and all Schedules are the “Agreement”).
If any Vendor does not agree to this Agreement, such Vendor agrees to not use the Company’s Platform and Services, and shall not be granted a license to use the Company’s Platform and Services. See “Acceptance of the Terms”, below.
LAST MODIFIED DATE: 05 May 2022
EFFECTIVE DATE: 09 May 2022
This Agreement is made between:
Handmade Home Co. Inc., a company incorporated under the provincial laws of Ontario, Canada (the “Company”), and
Each “Vendor” who has registered for use of the Platform and Services (collectively the “Vendors"). For clarity, the definition of “Vendor(s)” includes, collectively, (a) the sellers of goods through the Platform; (b) a Vendor Third Party (as defined in Schedule “A”); and a Vendor Representative (as defined in Schedule “A”).
2. ACCEPTANCE OF THE AGREEMENT IN ORDER TO USE THE PLATFORM AND SERVICES
Each Vendor further agrees to abide by all the terms in the Paypal end user licensing agreement, or any other applicable Payment Platform (as defined below) agreement, so long as such agreement does not conflict with the terms herein.
3. SUMMARY OF LICENSE TERMS
During the Initial Term or subsequent Renewal Term (as defined below), the Company grants to the Vendor a non-exclusive, non-transferable, non-sub-licensable, revocable license to the Company’s Platform and Services, the features of which are described in Schedule “A” of this Agreement. Schedule “B” shall further govern the Vendor’s use of the platform.
The license can be revoked for breach of this Agreement and/or for any of the Prohibited Uses as defined below in Schedule “C” to this Agreement, examples of which are: submission to the Company or any purchaser of goods through the Platform (individually a “Buyer”, and collectively the “Buyers”) of objectionable content, and/or acts of abuse to the Company or to any other of the Vendors or any Buyer, and/or of any Prohibited Use of the Platform and Services, among others.
Complete license terms are contained in Schedule “A” to this Agreement.
The goods sold on the Platform (the “Goods”) will be subject to a Commission Fee (defined in Schedule "B"), delivery fee, and any applicable tax on the combined total of the Commission Fee and Purchase Price of the Goods. Both the Commission Fee and the tax will be payable at checkout as set out in Schedule "B". All payments shall be processed via the payment platform (currently run through Paypal) (the “Payment Platform”) and made at the Vendor’s option for whatever payment options Paypal offers at the time of checkout.
This Agreement shall apply to each Vendor commencing from the first of the following times: Vendor first registers for, logs in, and/or otherwise accesses or uses the Platform and Services (the “Effective Date”) and, subject to the clauses that survive this agreement, until termination of the Agreement at the conclusion of a one-month period (the “Initial Term”). The Agreement will renew automatically on a month-to-month basis thereafter (each a “Renewal Term”) until such time as it is terminated in accordance with the termination provisions of this Agreement. Upon any such termination or expiry of this Agreement, sections 5 (E-Classes), 6 (Use of the Platform and Services), 8 (Third Party Links), 9 (Intellectual Property and Rights), 10 (Limitation of Liability), 11 (Indemnification), 19 (Survival) of Schedule “A” shall survive (collectively, “Survival Clauses”).
6. DATA USAGE
For support inquiries, or to report objectionable content, please contact the Company at email@example.com.
TERMS AND CONDITIONS TO THE PLATFORM AND SERVICES LICENCE AGREEMENT
1. PARTIES ACCESSING THE Platform and Services AGREE TO BE BOUND BY OUR TERMS
This Agreement governs Vendors’ access of the Handmade Home Co. Inc. Platform and Services by any means, whether computer, mobile hardware device or other, those Platform and Services being: (a) the Company’s website at www.handmadehomeco.com (the “Website”); and (b) the Company’s social media properties, including but not limited to Instagram, Facebook, Twitter, or YouTube (the “Platform and Services”), as owned and operated by the Company.
No Vendor may use the Platform and Services or accept this Agreement if such Vendor is not of a legal age to form a binding contract. In accepting this Agreement, each Vendor represents that the Vendor has the capacity to be bound by the Agreement; and if such Vendor is acting on behalf of another entity such as a company or an employer ( the “Vendor Third Party”), that the Vendor has the authority to bind such Vendor Third Party (and in which case the Vendor will refer to such company or entity), and if an individual or company is acting for the vendor of Goods, such an individual or company has the authority to buy the vendor (“Vendor Representative”).
Pursuant to the amendment restrictions set out in Applicable Law (defined below), the Company may add to, discontinue or revise this Agreement or any aspect, mode, design, or service provided under the Platform and Services, which include but are not limited to the:
- scope of the features;
- timing of the features;
- software/hardware required for access to the Platform and Services; and
- geographic locations or jurisdictions in which certain features may be available.
The Company may amend this Agreement without notice for non-material amendments. In the event of a material change during the Initial Term or prior to a Renewal Term, the Company will provide the Vendor with 24 hours notice (or the minimum notice period as required under the Applicable Law, whichever is greater) of any such change (including changes in pricing) via e-mail to the e-mail address supplied to the Company by the Vendor, setting out:
- the new or amended agreement terms;
- how such terms read formerly;
- the date of the coming into force of the amendment;
- the means in which to respond to the notice of amendment and the effects of not responding;
- the option to either terminate the agreement or retain the existing agreement unchanged; and
- the language of this provision with reference to the applicable consumer protection legislation rules for amending this Agreement and making any additional requirements for amendments as prescribed by law (if any).
It is the Vendor’s responsibility to send such notices of material changes to all entities associated with the Vendor’s account. The Company highly recommends that each Vendor read any amendments carefully. Unless explicit consent is required by the Applicable Law, the Company has the right to assume that each Vendor that accesses the Platform and Services has accepted the changes to this Agreement, unless such Vendor notifies the Company, no later than thirty (30) days after the amendment comes into force (or the minimum number of days as required under Applicable Law, whichever is greater), that the Vendor desires to terminate the Agreement and their access to the Company’s Platform and Services.
The Company will post the most current terms of this Agreement conspicuously within the Platform and Services and the Vendor’s use of the Platform and Services will be subject to the most current terms as posted on the Platform and Services at the time of use. It is the Vendor’s responsibility to visit this page to find any updates that may have been made to the Agreement. Each Vendor hereby agrees that the Company shall not be liable to such Vendor for any amendments to the Agreement. Where permitted by Applicable Law, in the event there is a sale in progress, that sale will not terminate, and will be subject to the terms agreed to at the time of such sale.
The Vendor acknowledges that the Company incurs expenses to list the Vendor’s products on its Platform. In recognition of this, the Vendor agrees to give the Company an exclusive listing on its products for 90 days from the first day a product appears on the Company’s Platform. The Vendor shall provide an initial $75 refundable deposit at the time of its first listing, as assurance that it will respect the exclusivity period. If the Vendor removes an item from the Platform within 90 days of its first appearance on the Platform, the deposit shall be forfeited and shall be the rightful property of the Company. The initial deposit shall be held by the Company for the duration of the Parties’ relationship, and shall be refunded to the Vendor upon termination of their relationship, as long as there has been no breach of the exclusivity term immediately before termination of the relationship.
If a Vendor’s initial deposit has been forfeited, the Vendor may continue to list items on the Platform with prepayment of a $75 per item deposit. If an item is sold on the Platform or if the 90-day exclusivity period expires on that item, the deposit for that item shall be refunded to the Vendor. If an item is withdrawn from the Platform within the 90-day exclusivity period, the deposit for that item shall be forfeited and shall be the rightful property of the Company.
If a Vendor violates the exclusivity requirement three times, the Company may, in its discretion, suspend or terminate this Agreement with the Vendor.
4. PAYMENT TERMS
The Vendor agrees that the purchase and sale of the Goods will be conducted through the Platform and Services via the Payment Platform. Buyers will select the Goods they want to purchase on the Platform and Services, and upon selection of the Goods, and clicking of the “Checkout Button” on the Platform and Services, they will be taken to the Payment Platform where they will make payment for the Goods and the relevant delivery fee, including any applicable taxes (the total price shall be defined as “Purchase Price”).
Payment for the Goods will be made to the Vendor by Buyers agreeing to purchase Goods on the Payment Platform by providing their “Customer Information”; selecting and agreeing to the “Shipping Method”; filling out and providing Paypal with their “Payment Method”; and clicking the “Complete Order” button. The Vendor agrees to then deliver the Goods to the Buyers.
The Company reserves the right to refuse any order placed on its Platform and Services. The Company may, in its sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that the Company makes a change to or cancels an order, it may attempt to notify the Buyer and the Vendor by contacting the e-mail and/or billing address/phone number provided at the time the order was made. The Company reserves the right to limit or prohibit orders that, in its sole judgment, appear to be placed by dealers, resellers or distributors.
Delivery. By making a payment on the Payment Platform for Goods, Buyers will be deemed to have made a request for delivery of the Goods from the Vendors. Upon receipt of the request for delivery of the Goods, someone from Handmade Home Co. will arrange for delivery through a “Carrier”, the costs of which shall be F.O.B. Destination Freight Prepaid & Added To Invoice.
Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery.
In the event that payment, as set out on the Payment Platform, is not made in full prior to the shipping date, delivery will be delayed at the Buyer's expense and the estimated delivery date will be extended until such payment is received in full. Such expenses shall include, without limitation, any administrative costs, handling costs, warehousing and/or storage costs, actual shipping and/or freight costs, and disposal costs.
If any of the payments made by the Buyer on the Payment Platform are not able to be processed for any reason, such as the cancellation of the Buyer's credit card after the Buyer has made the payment, the Company shall bring the issue to the notice of the Buyer and will reserve a right of disposal in the Goods until full payment for the Goods has been made by the Buyer. In such case, despite the delivery of the goods to the Buyer or to a Carrier or other bailee for the purpose of transmission to the Buyer, the property in the Goods does not pass to the Buyer until the Buyer has made full payment for the Goods. However, the Company at their sole discretion may forego their right of disposal at any time.
After payment is complete, and the order is received, the Buyer will have the option of communicating with the Vendor through the Platform and Services. This will allow the Buyer and the Vendor to discuss any relevant details regarding the Goods purchase.
All payment is exclusive of any taxes or duties imposed by applicable tax laws in each Buyer’s tax jurisdictions, and the Company will not be responsible for any taxes or duties owed by the Buyer.
5. SUSPENSION AND TERMINATION
Vendors may terminate their relationship with the Company by notifying the Company via email at firstname.lastname@example.org
The Company may suspend provision of the Platform and Services in the event that the Vendor ceases to carry on its business in the normal course, or if an event of Prohibited Use (as described in Schedule “C” to this Agreement) occurs, or if the Vendor’s use is in material breach of the Agreement. A suspension event shall be included in the definition of Vendor material breach. The Vendor agrees to pay the Company’s reasonable expenses, including lawyer and collection agency fees, incurred in enforcing the Company’s right to payment.
At the Company’s discretion, the Company may terminate this Agreement immediately at any time and for any reason including, but not limited to:
- if the Vendor has not adhered to any or all the provisions of the Agreement or if it appears that the Vendor does not intend to or is unable to comply with the Terms, such determination to be made solely at the Company’s discretion;
- if the Vendor is using the Platform and Services only for any advertising or promotion of Vendor's business, goods and services relating thereto, is not properly representing the Vendor’s goods and services, or is actively encouraging Buyers to purchase Goods in a third-party platform that has no relation to the Company’s Platform and Services;
- if the Company is required to terminate the relationship by law;
- if the Company receives any notice of or discovers any event of Prohibited Use;
- if provision of the Platform and Services is no longer commercially viable for the Company; and/or
Upon termination of this Agreement with the Vendor, the Company immediately revokes the Vendor’s license to use the Platform and Services and may block all access to the Vendor’s account, and may delete all data and information associated with the Vendor’s account after fourteen (14) days from such termination.
6. E-CLASSES (“E-Classes”)
The Platform and Services may from time to time include E-classes offered by Vendors on various topics (ex: How To's, DIY projects etc.). The prices for the E-Classes shall be set by the Vendors.
Vendors shall ensure that any E-Classes will abide by section 6 (Use of the Platform and Services) of this Schedule “A”) and not breach any Prohibited Uses (as defined in Schedule “C”).
Additional Disclaimer for E-Classes
The Company makes no representations, warranties or guarantees, whether express or implied, that the content of the E-Classes offered on the Company’s Platform and Services is accurate, complete, up-to-date or bug-free.
Company Reservation. The Company reserves the right to refuse any order placed on the Platform and Services. The Company may, in its sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that the Company makes a change to or cancel an order, the Company may attempt to notify the Vendor and the Buyer by contacting the e-mail and/or billing address/phone number most recently provided to the Company. We reserve the right to limit or prohibit orders that, in the Company’s sole judgment, appear to be placed by dealers, resellers or distributors.
7. USE OF THE PLATFORM AND SERVICES
In order to use the Platform and Services, the Vendor must register using the Company’s registration page located within the website. The Vendor understands and agrees that a representative of the Vendor’s organization may register the Vendor for an account.
Registration Information. The Vendor agrees and understands that the Vendor is responsible for maintaining the confidentiality of the Vendor’s password, which, together with the Vendor’s name and e-mail address (“Vendor ID”), allows the Vendor to access the Platform and Services. The Vendor’s ID and password, together with any other contact information the Vendor provides to the Company at the time of signing up for the Platform and Services, or from time to time thereafter, comprise the Vendor’s “Registration Information.” The Vendor agrees that all Registration Information provided to the Company will be accurate and up-to-date. The Vendor agrees to keep the Vendor’s password secure. The Company will not be liable if the Company is unable to retrieve or reset a lost password. If the Vendor becomes aware of any unauthorized use of the Vendor’s password or account, the Vendor agrees to notify the Company via e-mail at email@example.com as soon as possible.
The Vendor may not open an account if the Vendor is a competitor of the Company.
Permitted Uses. The Vendor agrees to use the Platform and Services only for purposes that are permitted, both by the Agreement and by any Applicable Law, regulation, or generally accepted practices or guidelines, in relevant local, national, and international jurisdictions. The Vendor agrees to adhere to any applicable privacy of personal information laws and regulations.
Unauthorized Access. The Vendor agrees to only access (or try to access) and use the Platform and Services through interfaces provided by the Company. The Vendor shall not access (or try to access) and use the Platform and Services through any automated means, including, but not limited to, scrapers, scripts, robots, or web crawlers. The Vendor agrees not to use or attempt to use another Vendor’s account. The Vendor agrees not to impersonate any person or entity, or falsely state or otherwise misrepresent the Vendor, the Vendor’s personal information, or the Vendor’s affiliations with any person or entity.
Moderation of content created by the Vendor. The Vendor understands and agrees that although the Company is not required to moderate the Vendor’s use of the Platform and Services, it may in its sole judgment review and delete any content in whole or in part, for any reason whatsoever, which without limitation, violates this Agreement or which might be objectionable, offensive, indecent, illegal, or that might violate the rights or harm or threaten the safety of others.
Objectionable content created by others. The Vendor understands that when using the Platform and Services, the Vendor may come across material that the Vendor finds objectionable, offensive or indecent and agrees that the Vendor is using the Platform and Services at the Vendor’s own risk. The Vendor may alert the Company by using the support contact information contained herein.
Vendor’s Responsibility. The Vendor agrees that the Vendor is solely responsible for any breach of the Vendor’s obligations under the Agreement and for the consequences of any such breach. The Company has no responsibility to the Vendor or to any third party for such breaches or the consequences of such breaches (including losses or damage that may occur).
Technical Requirements. Use of the Platform and Services requires internet access through the Vendor’s computer, mobile device or other hardware. The Vendor may be required to have the most up-to-date operating system to use the Platform and Services, and some features of the Platform and Services may not be accessible with such technologies disabled.
Vendor’s Responsibility for Equipment. The Vendor agrees to be responsible for obtaining and maintaining any software, browsers, hosting services, other equipment and ancillary services needed to connect to, access or otherwise use the Platform and Services.
9. THIRD PARTY LINKS
The Platform and Services may link to third-party websites and/or resources. Such links are provided as a convenience to Buyers and Vendors only and do not imply an endorsement, warranty or guarantee by the Company of any such linked website or the company it purports to represent. The Company does not assume any responsibility or liability for the availability or accuracy of such links, and/or the content, products or services provided at the destinations of such links. The Vendor is solely responsible for use of any such websites or resources and compliance with their policies. Should the Vendor elect to enter into a binding contract with any such third-party website and/or resource, the Vendor agrees to hold the Company harmless and hereby releases the Company from any liability whatsoever, whether arising out of contract, tort or otherwise, for any liability, claim, injury, loss or damage suffered as a result of the Vendor’s actions or the actions of any entity or Buyer associated with the Vendor’s account, offering to accept or having accepted any products or services that are available from those sites.
10. INTELLECTUAL PROPERTY AND RIGHTS
Rights to content provided by Company. The Vendor acknowledges and understands that the Company owns all right, title and interest in and to: (a) the Platform and Services and all improvements, enhancements or modifications thereto; (b) the Platform and Services and any associated data files; and (c) all computer software, advertisements, sponsored content, and intellectual property associated with the Platform and Services (all such information, individually and collectively, being the “Platform and Services Content”), which the Vendor may have access to when using the Platform and Services.
Know-How. Subject to the provisions hereof respecting confidentiality and intellectual property, the Company shall be free to use any ideas, concepts or know-how developed or acquired by the Company during the provision of the Platform and Services under this Agreement to the extent obtained and retained by the Company’s personnel as impressions and general learning (the “Know-How”). Nothing in this Agreement shall be construed to preclude the Company from enhancing the Platform and Services based on the accumulation of Know-How.
The Vendor, or Buyer are not required to provide the Company with any comments, suggestions, recommendations, bug reports, requests or any other feedback (“Feedback”). In the event that a party does provide the Company with Feedback, the Company may use such Feedback to improve the Platform and Services or for any other purpose. Furthermore, the Company shall own such Feedback and the Company and its affiliates, licensees, clients, partners, third-party providers and other authorized entity may use, license, distribute, reproduce and commercialize the Feedback, and the Vendor hereby assigns, irrevocably, exclusively and on a royalty-free basis, all such Feedback to the Company.
Limited license. The Company hereby grants the Vendor a non-exclusive, non-transferable, revocable, limited license to use the Platform and Services in accordance with this Agreement and the License Restrictions set out in the Summary of Terms. This limited license is subject to full payment of any fees (or payments) when due. This license may be revoked by the Company upon breach of this Agreement by the Vendor and shall automatically be revoked upon termination or expiration of this Agreement.
The Company may, now or in the future, own rights to trade-marks, trade names, services marks, logos, domain names and other distinctive brand features which the Company may use in connection with the operation of the Platform and Services (each such feature being a “Brand Right” and collectively being the “Brand Rights”). The Company does not grant the Vendor any right or license to use any Brand Right other than as expressly set out in this Agreement and in any other licenses or agreements between the Vendor and the Company.
Licence to Brand Marks. The Company and Vendor agree to grant to each other a perpetual, non-exclusive, royalty-free licence to use one another’s name, logos, and/or trademark (individually and collectively described as the “Brand”) for the purposes of any press release, advertising, webpage, blog or other promotional, advertising or marketing material so long as no confidential information is disclosed. Such license shall be revocable upon written notice provided by either party to the other in the Brand owner’s sole discretion, such discretion to be reasonably exercised. None of the parties shall do or allow to be done any act or thing that will in any way impair the rights of the other party’s Brand.
11. LIMITATION OF LIABILITY
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF SUCH LAWS APPLY TO THE VENDOR, SOME OR ALL OF THE BELOW DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MIGHT NOT APPLY TO THE VENDOR, AND THE VENDOR MIGHT HAVE ADDITIONAL RIGHTS.
The Vendor, individually and collectively hereby agrees to release, remise and forever discharge the Company and the Company’s directors, employees, officers, and the Company’s affiliates, partners, service providers, vendors, and contractors and each of their respective agents, directors, officers, employees, and all other related persons or entities from any and all manner of rights, losses, costs, claims, complaints, demands, debts, damages, causes of action, proceedings, liabilities, obligations, legal fees, costs and disbursements of any nature whatsoever, and for any special, indirect or consequential, incidental or exemplary damages, including but not limited to damages for loss of profits, goodwill, use data, or other intangible losses (collectively, “Claim(s)”), whether in contract or tort, whether known or unknown, which now or hereafter arise from or relate to, any use of the Platform and Services whatsoever, to the maximum extent allowed by law.
THE VENDOR ACKNOWLEDGES AND AGREES THAT: (A) THE PLATFORM AND SERVICES ARE TO BE USED “AS-IS”, WITH NO WARRANTIES ON FITNESS FOR THE PURPOSE, MERCHANTABILITY OR OF ANY OTHER KIND, WHETHER EXPRESSED OR IMPLIED; AND THE VENDOR ACKNOWLEDGES, AGREES AND UNDERSTANDS THAT THE VENDOR USES THE PLATFORM AND SERVICES AT THE VENDOR’S OWN RISK; (B) THE GOODS OR E-CLASSES ARE SOLD “AS IS” AND TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER THE COMPANY DOES NOT WARRANT THAT THE COMPANY'S SERVICES, INFORMATION, CONTENT, MATERIALS, PLATFORM AND SERVICES (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE THROUGH THE COMPANY'S SERVICES, WEBSITE, SERVERS, ELECTRONIC COMMUNICATIONS, OR E-MAIL ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (C) THE COMPANY IS HEREBY RELEASED FROM ANY AND ALL LIABILITY FOR USE OF THE PLATFORM AND SERVICES AND ANY SALES OF THE GOODS OR E-CLASSES; (D) THE VENDOR HAS REVIEWED THE FOLLOWING LIST OF POTENTIAL EVENTS SPECIFICALLY DISCLAIMED AS EXAMPLES FOR WHICH THE VENDOR HAS SPECIFICALLY RELEASED THE COMPANY FROM ANY AND ALL LIABILITY FOR (AMONG OTHERS):
- Non-Platform and Services failures: responsibility for any failure of, or damage to, any hardware devices, equipment or networks or internet access, content or data, or third-party applications used by the Vendor in connection with the Platform and Services;
- Communication failures or Platform and Services downtime: whether due to maintenance or other reasons, any error, inaccuracy, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Platform and Services content, Data, use of Platform and Services and/or any communications between the Vendor and the Platform and Services;
- Content inaccuracy: any inaccuracy in content and/or recommendations by the Company in the Company content and/or the Data, and the Vendor is responsible for ensuring that the information entered into the Company’s system by such Vendor is accurate, reliable and complete, and agrees that the provision or storage of Data through the Platform and Services does not constitute the Company’s endorsement or warranty as to the accuracy of such content;
- Compliance with law: the compliance of such Data with applicable legislation including privacy legislation, and Vendor agrees that the provision or storage of Vendor and Buyer Data through the Platform and Services does not constitute the Company’s endorsement or warranty as to compliance with law;
- Online discussions: responsibility or liability for any user-generated commentary, ratings or reviews of the Buyer and/or Vendor and/or an employee of the Vendor and/or other entity affiliated with the Vendor, posted to the Platform and Services, or any consequences as a result of the ratings or reviews of the Vendor, its employee and/or its affiliated entity, including but not limited to termination of an employee; ratings and reviews posted to the Platform and Services DO NOT reflect the Company’s views;
- Monitoring: liability for monitoring the Platform and Services or for unauthorized or unlawful content on the Platform and Services or use of the Platform and Services by any Buyers;
- Non-infringement: direct or indirect, express or implied representation or warranty as to title and non-infringement of intellectual property in relation to the Platform and Services;
- Processing of content: liability for any damages that may arise by the Vendor’s use and/or direct or third-party processing of Data, and the Vendor further agrees and acknowledges that the Company is not liable for any damages that may arise if Data is misdirected in error, subject to the Company’s legal requirements relating to the protection of personal information under Applicable Law;
- Communications directly or through the Company’s Platform and Services: liability for any damages that may arise for communications received by a Vendor through the Vendor’s access to the Platform and Services and/or for the posting of information on the Platform and Services, Website, blog, account or any affiliated social media, including but not limited to, Data, pictures, written reviews, personal information, and/or comments made from a Vendor’s personal point of view;
- Unauthorized activities: unauthorized activities directed towards the Platform and Services or its Vendors or Buyers including identity theft, fraud or unauthorized access; viruses, denial of service attacks, and any items that are included in the definition of Prohibited Use as set out in Schedule “C” to this Agreement;
- Force majeure: any force majeure event as described in this Agreement and/or any matter beyond the Company’s reasonable control;
- Goods Purchased: The Vendor acknowledges that the Company does not manufacture, store, or inspect any of the Goods sold by the Vendor to a Buyer through the Company’s Platform and Services. The Company provides the venue; the Goods sold are produced, listed, and sold directly by the Vendor, so the Company cannot and does not make any warranties about their quality, safety, or even their legality. Any legal claim related to Goods purchased may be brought directly against the Vendor of the Goods. The Vendor agrees to release the Company from any claims related to Goods sold through its Platform and Services, including for defective items, misrepresentations by Vendors, or Goods that caused physical injury (like product liability claims); and/or
- E-Classes Purchased: The Vendor acknowledges that the Company does not manufacture, produce, or inspect any of the E-Classes sold through the Company’s Platform and Services. The Company provides the venue; the E-Classes sold are produced, listed, and sold directly by the Vendor, so the Company cannot and does not make any warranties about their quality, or even their legality. Any legal claim related to E-Classes purchased may be brought directly against the Vendor of the E-Classes. The Vendor agrees to release the Company from any claims related to E-Classes sold through the Company’s Platform and Services, including for misrepresentations by Vendors.
THE VENDOR ACKNOWLEDGES THAT THE COMPANY IS NOT RESPONSIBLE FOR THE VENDOR’S MARKETING THEIR PRODUCTS OR SERVICES THROUGH THE PLATFORM; THEY ARE INDEPENDENT ORGANIZATIONS AND NOT CONTRACTORS, AGENTS OR EMPLOYEES OF THE COMPANY. THE COMPANY IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF THE VENDOR OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER FOR ANY AND ALL ACTIONS OF THE VENDORS. The Vendor is solely responsible for providing any and all disclaimers and information about their Goods and E-Classes including, and without limiting the generality of the foregoing, allergy information.
In the event that there is a finding of liability that is contrary to the foregoing, the Vendor agrees that such damages shall be limited in the aggregate for all Claims related to all of the Buyers (individually and collectively, the Claimants) to CAD $50, whether or not any or all of the Claimants have been advised of the possibility of such damages or such Claim was reasonably foreseeable and notwithstanding the sufficiency or insufficiency of any remedy provided for herein.
To the extent permitted by the Applicable Law, the Vendor agrees that the Vendor will defend, indemnify and hold harmless the Company and the Company’s officers, directors, shareholders, employees, agents and representatives, from and against any and all Claims, in whole or in part arising out of or attributable to: (a) generally, for the Vendor’s breach of this Agreement; the Vendor’s access to and/or use of the Platform and Services; and any loss of, or damage to, any property, or injury to, or death of, any person (including the Vendor and/or Buyer) caused by the Vendor’s access to and/or use of the Platform and Services; and/or (b) specifically, for the Vendor’s breach of the intellectual property rights of any third party to this Agreement; and/or (c) for any Prohibited Use; and/or (d) any Claim arising out of Goods and/or E-Classes sold on our Platform or Services.
The Vendor agrees that the Vendor will be solely responsible for all activities that occur under the Vendor’s account, whether the Vendor is aware of them or not. The Vendor agrees to hold the Company harmless and release the Company from any Claims whatsoever that the Vendor may incur as a result of someone other than the Vendor using the Vendor’s password or account, either with or without the Vendor’s knowledge. The Vendor agrees to indemnify the Company for any damages, third-party claims or liabilities whatsoever that the Company may incur as a result of activities that occur on or through the Vendor’s account, whether or not the Vendor was directly or personally responsible.
13. GOVERNING LAW AND FORUM OF DISPUTES
The Vendor agrees that the laws of the province of Ontario and the Federal laws of Canada as applicable therein, without regard to the principles of conflict of laws (“Applicable Law”), will govern this Agreement and any dispute of any sort that may arise between the Vendor and the Company. With respect to any disputes or claims, the Vendor agrees it shall attorn to the exclusive jurisdiction of the courts of Ontario, Canada, without regard to any principle of conflict of laws that would result in the application of the laws of any other jurisdiction; the Vendor hereby consents to and waives all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the provincial courts of Ontario. The Vendor agrees to pay reasonable attorneys' fees and court costs incurred by the Company to collect any unpaid amounts owed by the Vendor.
Other than in the event of a dispute, in which case the apportionment of expenses shall be determined pursuant to the dispute resolution rules, each Vendor shall be responsible for its own legal fees and other expenses incurred in connection with the negotiation of these terms (if any) and the performance of any of such Vendor’s obligations hereunder.
15. FORCE MAJEURE
The Vendor agrees that the Company is not liable for a delay or failure in performance of the Platform and Services or the provisions of this Agreement caused by reason of any occurrence of unforeseen events beyond the Company’s reasonable control, including but not limited to, acts of God, natural disasters, pandemics, power failures, server failures, third-party service provider failures or service interruptions, embargo, labour disputes, lockouts and strikes, riots, war, floods, insurrections, legislative changes, and governmental actions.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
The insertions of headings are for convenient reference only and are not to affect the interpretation of this Agreement.
18. ASSIGNMENT OF AGREEMENT
The Vendor may not, without the Company’s prior written consent, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Company may assign this Agreement to a third party at any time in the Company’s sole discretion. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
The Vendor agrees that if the Company does not exercise or enforce any legal right or remedy which is contained in this Agreement or which the Company has the benefit of under any Applicable Law, this will not be taken to be a formal waiver of the Company’s rights, and that those rights or remedies will still be available to the Company. Any waiver must be in written form and signed by an authorized representative of the Company.
20. SURVIVAL OF AGREEMENT
All covenants, agreements, representations and warranties made in this Agreement shall survive the Vendor’s acceptance of this Agreement and the termination of this Agreement.
21. ENTIRE AGREEMENT
By providing the Company with the Vendor’s e-mail address, whether provided directly by the Vendor or an affiliated entity, the Vendor agrees to receive all required notices electronically to that e-mail address, or by mobile notifications via the Platform and Services. It is the Vendor’s responsibility to update or change that address, as appropriate.
If Vendors have any questions or comments regarding this Agreement, please contact the Company’s head office by email at firstname.lastname@example.org.
The Company provides a Platform and Services whereby the Vendor can publish or offer Goods and/or E-Classes for sale to Buyers. This Vendor schedule contains specific terms that (without limiting the generality of the Agreement) further govern the Vendor’s use of the Platform and Services.
For clarity, the Vendor must comply with both the terms hereunder and the terms of this Agreement.
1. SALE OF PRODUCTS TO BUYERS
THE VENDOR ACKNOWLEDGES AND AGREES THAT THE PLATFORM AND SERVICES MUST NOT BE USED TO SELL ANY CHILDREN’S TOYS, AND/OR CHILDREN’S FURNITURE AND/OR ANY OTHER GOODS INTENDED (OR COULD REASONABLY BE INFERRED TO BE INTENDED) FOR CHILDREN (COLLECTIVELY, “CHILDREN’S GOODS”). ANY ATTEMPT TO USE THE PLATFORM AND SERVICES TO SELL ANY CHILDREN’S GOODS SHALL BE INCLUDED IN THE DEFINITION OF PROHIBITED USES.
The Vendor understands that the Vendor(s) are engaging the Buyer(s) and not the Company, and the Company is not a party to and will be in no way responsible for, nor is making any representations or warranties of any kind as to the performance of, the Vendor or their Goods and/or E-Classes. The Company is only responsible for facilitating the transmission of payment (through the Payment Platform) from the Buyer to the Vendor in accordance with this Agreement.
The Vendor acknowledges that the Company reserves the right to refuse any order placed on the Company’s Platform and Services. The Company may, in its sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that the Company makes a change to or cancel an order, the Company may attempt to notify the End-User by contacting the e-mail and/or billing address/phone number provided at the time the order was made. The Company reserves the right to limit or prohibit orders that, in the Company’s sole judgment, appear to be placed by dealers, resellers or distributors.
2. CUSTOMER FEEDBACK
Upon checkout, Buyers will have the option of providing feedback on the Vendor. Such feedback will be included in the definition of “Feedback” (as defined in Schedule “A”).
3. FACILITATED PAYMENTS: CONSENT FOR WITHHOLDING
The Company facilitates the transmission of any payments, via the Payment Platform, from the Buyer to the Vendor in connection with the sale of Goods (each a "Facilitated Payment"). The Company is not the Vendor's trustee or fiduciary in respect of any Facilitated Payments and may in its sole discretion withhold from any such Facilitated Payment any amounts to satisfy a claim by a Buyer (for example, without limiting the generality of the foregoing, to satisfy a claim for damaged Goods).
4. FEES AND PAYMENT
Tier 1 (Bronze)
Tier 2 (Silver)
Tier 3 (Gold)
Commission Fee (%) (“Commission Fee”)
Notwithstanding anything to the contrary, the above Tiers are based on criteria that will be provided on the Platform and Services but in any event are subject to change at the Company's sole discretion at any time.
“Vendor Revenue” means: (100% minus the Commission Fee) multiplied by the Purchase Price.
After the Company receives the Purchase Price (from the Payment Platform), and only if the Goods become Accepted Goods (as defined in Schedule “D”), the Company will pay the Vendor Revenue, by Paypal, to the Vendor within thirty (30) days (the “Payment Period”). For clarity, if the Company approves the Return Request, and the Refund is granted to the Buyer, the Company shall not have to pay, and shall in no way be liable to the Vendor for the Vendor Revenue.
As an example of the calculation of the Commission Fee:
Assuming the Goods sold for $100 and the Merchant was in Tier 3 (Gold):
Purchase Price of the Goods: $100
Tier 3 Commission Fee: $26.00
Merchant Revenue: (Prior to the deduction of applicable taxes): $74.00
In the event that a Vendor desires to offer E-Classes for sale, such a Vendor must pay the Company a monthly E-Class subscription fee of $8.00 per month (“E-Class Subscription”).
The E-Class Subscription purchase is final and non-refundable, unless required by law. If the Vendor purchases an E-Class Subscription, it will automatically renew on a monthly basis until cancelled by the Vendor, in accordance with the terms disclosed to the Vendor at the time of purchase, as further described below. If the Vendor cancels their E-Class Subscription, they will continue to be able to sell E-Classes until the end of the subscription month (the “Cancellation Date”), at which point the Vendor shall not be entitled to offer any E-Classes for sale, unless and until the Vendor purchases another E-Class Subscription. After the Cancellation Date, the Company, at its sole discretion, may deactivate the Vendor’s account, and/or take the E-Classes off the Company Platform and Services.
Benefits of an E-Class Subscription.
- Vendors can choose to set their own prices for their E-Classes (the “Class Price”);
- Vendors do not have to pay any commission fee on the Class Price;
- The Company may (at its sole discretion): occasionally include the Vendor in its newsletter, posts and/or shout-outs on the Company’s social media properties, and/or include the Vendor on the “Featured Products” section of the Platform and Services.
E-Class Subscription Cancellation Process.
If the Vendor does not want their E-Class Subscription to continue, they must cancel it (on the Platform and Services), even if they have otherwise deleted their account. To prevent the automatic renewal, this cancellation must be requested five (5) business days before the end of the then-current E-Class Subscription term.
6. DELIVERY POLICY
Vendors are responsible for delivering the Goods to the Buyers. Vendors are ultimately responsible for ensuring that the Buyers receive the Goods. This responsibility remains regardless of the use of third-party shipping services. By using the Company's Platform and Services, the Vendor agrees to:
- Provide an accurate "dispatches from" address;
- Not circumvent the Company's Platform and Services through the use of cash payments;
- Dispatch Goods promptly after they are sold, and in any event, within five (5) days; and
- Comply with local and international delivery and customs regulations.
Vendors may use the Platform and Services only for lawful purposes, and may not use the Platform and Services in any manner that:
- breaches any applicable local, national or international law or regulation;
- may in any way be considered harassment to another person or entity;
- may in any way be unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
- may in any way damage, disable, overburden, and/or impair the Platform and Services server, or any network connected to the Platform and Services server, and/or interfere with any other party’s use or enjoyment of the Platform and Services;
- is in any way abusive, defamatory, misleading, fraudulent, pornographic or otherwise explicit in nature or written in bad faith;
- harms or attempts to harm minors in any way;
abuses, either verbally, physically, in writing or otherwise (including threats of abuse or retribution), any current or former Platform and Services Buyers, Vendors, or personnel of the Company;
- causes sensitive personal information records of any individual (including, but not limited to, credit card information, personal health records, military information, and passport information) to be obtained, retained or used illegally or in an unauthorized manner;
- will decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying the Platform and Services;
- modifies, rents, leases, loans, sells, distributes or creates any derivative products or services (or parts of products or services) based on the Platform and Services Content that the Vendor does not own or to which the Vendor has rights, or to create derivative works based on the Platform and Services;
- infringes upon the Company’s intellectual property or adapts, reproduces, publishes or distributes copies of any information or material found on the Platform and Services in any form (including by e-mail or other electronic means), without the Company’s prior written consent;
- benefits or permits a third party who is not a registered Vendor or Buyer to use the Platform and Services;
- attempts to gain unauthorized access to, or disrupt the integrity or performance of, the Platform and Services or the Data contained therein;
- uses the Platform and Services to upload, post, link to, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or change the functionality of any computer software or hardware or any telecommunications equipment;
- posts or distributes any computer program that damages, detrimentally interferes with, surreptitiously intercepts, or expropriates any system, Data, or personal information;
- disrupts the functioning of the Platform and Services, in any manner;
- distracts a Buyer and/or prevents a Buyer from obeying traffic or safety laws, in the event that the Platform and Services is being used on a mobile device; and/or
- uses the Platform and Services only for advertising or promotion of the Vendor's business, goods and services relating thereto; improperly represents the Vendor’s goods and services; and/or actively encourages Buyers to purchase Goods in a third-party platform that has no relation to the Company’s Platform and Services;
and any of the foregoing (“Prohibited Uses”) may, once investigated, result in immediate account termination of a Vendor’s account and this Agreement.
RETURNS AND REFUND POLICY
Buyers may have certain statutory rights to cancel, return, or refund their order under applicable consumer protection laws ("Statutory Return”) and the Company will respect all such applicable laws. In addition to these statutory rights, returns of Goods purchased on the Platform and Services are governed by the Company’s return policy as described in this section. Buyers agree to review this section and print and retain a copy for their records.
If any of the Refund Conditions are not met (as defined below), or the reason for refund is an Excluded Reason (as defined below), and only if the Buyer does not have any remaining Statutory Return rights, the Buyer shall be deemed to have accepted the Goods unconditionally (“Accepted Goods”).
After the Company approves a Return Request (at its sole discretion), the Vendor shall, at the Vendor’s own expense, send the Buyer a pre-paid shipping label that can be used to return the Goods to the Vendor. After the Vendor receives the Goods and determines that the Goods are in the same condition as was described in the Return Request, the Company shall pay the Refund to the card that the Buyer used to purchase the Goods. If there is a Refund, the Vendor acknowledges and agrees that the Company shall not be liable to the Vendor for the Vendor Revenue in connection with the sale of those Goods.
Excluded Reasons (the “Excluded Reason”)
To return any Goods, the Buyer’s claim (the “Return Claim”) must not be based on an Excluded Reason.
The Buyer acknowledges and agrees that the Goods are handmade items and may vary slightly from any photographs listed. The Buyer is responsible for reading descriptions carefully. To discuss and/or clarify any additional information, after the Buyer places an order, the Buyer can also contact the Vendor.
Excluded Reasons include (but are not limited to) Return Claims based on the fact that:
- Goods were damaged by the delivery carrier;
- Goods were received after the delivery date (as listed on the Platform and Services) due to delivery delays;
- Goods that, although accurately described by a Vendor, do not meet the Buyer’s requirements or needs;
- The cost of the delivery fee was inaccurate or too high; or
- Portions of the Goods that were not intended to be painted or finished (including, without limitation, the underside or the backside of the Goods) are not painted or finished.
Conditions for Refund (the “Refund Conditions”). To receive any refund, the Buyer must fulfill the following conditions:
- the Buyer must start the process to return the Goods to the Vendor within seven (7) days of making their Return Claim (the “Return Request”). This Return Request must include a detailed description of the Goods as well as photographs of the Goods (among other information) and must be submitted to the Company;
- the Company, after receiving the Return Request, shall, in its sole discretion, approve, ask for more information, or reject the Return Request. If the Company rejects the Return Request, the decision is final. If the Company requests more information (for example: better photographs), the requested information must be submitted to the Company before the return process can continue (“Company Approval Process”);
- the Goods must be in the same condition as when they were delivered to the Buyer;
- Goods must not have been purchased by the Buyer in person; and
- payment must have been made in accordance with Section 3 of Schedule “A” (Payment Terms).