Marketplace Seller Agreement

This Marketplace Seller Agreement (“Agreement”) contains the terms and conditions that governs your access to Vintage Keepers Website (“Marketplace”) to sell good, products, or service. By registering as a Seller or executing this Agreement, you (on behalf of yourself or the business you represent) agree to be bound by the terms of this Agreement. The Marketplace is an e-commerce website, which offers unrelated sellers the opportunity to list merchandise for sale directly to Customers.

As used in this Agreement, “Vintage Keepers” means Lavender Lane Interiors, LLC (dba as Vintage Keepers), a New Jersey limited liability company (“VK”) and “You” or “Seller” means the applicant (if registering for the Marketplace as an individual), or the business employing the applicant (if registering for the Marketplace as a business).

The parties therefore agree as follows:

Article 1

Statements & Recommendation

1.1. Seller Statements. Seller states that: (a) Seller has authorized the individual registering Seller for access to a Marketplace to bind Seller, (b) Seller is authorized to enter into and perform its obligations under this Agreement, (c) Seller believes that its performance under this Agreement will not violate any other agreement, and (d) Seller is commercially sophisticated.

1.2. VK Statements. VK states that: (a) it has the authority to enter into and perform its obligations under this Agreement, and (b) it believes that its performance under this Agreemen will not violate any other agreement.

Article 2

Registration & Access To Marketplaces

2.1. Registration for and Use of the Marketplaces. Seller may register to sell on Marketplace. If Seller registers on Marketplace, Seller will be bound by the terms of this Agreement as of the date of registration (“Effective Date”). VK may accept or reject Seller’s registration for the Marketplace.

2.2. Amendment of this Agreement. VK may modify the terms of this Agreement at any time by posting amendments to the Seller Information Page and/or emailing a notice to Seller at the email address Seller provided in the Seller Portal. If Seller registers on a Marketplace or continues to use a Marketplace, Seller will be bound by the then current terms of this Agreement.

2.3. VK Terms and Conditions / Policies. This Agreement is in addition to and supplementsVK’s Terms and Conditions / Policies posted on the Marketplace, which it may publish or amend such policies governing Seller’s access to or use of a Marketplace (“Policies”). By entering into this Agreement, you also agree to abide by Policies. VK may modify its Policies from time to time, with or without notice. Your continued use of the Marketplace following VK’s posting of such modifications shall be deemed to be your acceptance of any such modifications. If you do not agree to the changes in the Policies, immediately cease to use the Marketplace. VK will post any Policies or amendments to Policies on the Seller Information Page.

2.4. Marketplace Design and Access. If VK accepts Seller’s registration for a Marketplace, VK will provide Seller access to the Marketplace as a platform for Seller to post offers for sale to Product Listings and facilitate the sale of Seller’s Product(s) to Customers. VK may determine or change any aspect of a Marketplace without notice to Seller. VK may stop providing Seller access to a Marketplace without notice to Seller.

2.5. Permits and Licenses. Seller shall obtain all permits and licenses required to operate its business in accordance with Applicable Law at its own expense. Seller shall pay all fees or assessments which may be due for selling or offering for sale its Product(s) on a Marketplace.

Article 3

Seller Content & Product Listings

3.1. VK Is Not Seller Of Record. Sales of Product(s) on a Marketplace are between Seller and Seller’s Customers; VK is not the seller and is not a party to such transactions. Seller’s listing of Product(s) on a Marketplace does not imply that VK endorses or is affiliated with Seller or Seller’s Product(s).

3.2. Seller Content. Seller shall ensure that all information and data it provides to VK is accurate, not misleading, and complies with Applicable Law. Seller shall ensure that all electronic information and data it transmits to VK or a Customer does not contain any harmful code or other feature designed to obtain unauthorized access to or information from or damage or degrade in any manner any computer system, application, or code. By entering into this Agreement, Seller grants VK a royalty-free, non-exclusive, worldwide, sublicensable, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, commercially or non-commercially exploit in any manner, incorporate and imbed into other works, and distribute Seller content throughout the Marketplace.

3.3 Product Listings.

a. Seller shall create Product Listings or offers for sale posted to Product Listings using the Seller Portal for all Product(s) it intends to sell on a Marketplace.

b. If it creates Product Listings, Seller shall create Product Listings that comply with Applicable Law, the Policies, and any specifications posted in the Seller Portal, and that are accurate and appropriate for the Marketplace to which they are posted.

c. Seller shall ensure that VK’s use of Seller’s Product Listings will not (1) violate any intellectual property rights of non-parties; (b) contain defamatory or discriminatory content; (c) constitute an invasion of a party’s rights of privacy or publicity; and/or (d) reflect unfavorably on VK, the Marketplace and/or other Sellers on the Marketplace;

d. Seller shall not create Product Listings that:

1. is untruthful, inaccurate, and misleading or otherwise deceptive;
2. offer products that are inauthentic, counterfeit, replicas or knock-off goods;
3. is unlawfully threatening or unlawfully harassing;
4. offers Excluded Product;
5. offer Product(s) Seller does not currently have in stock;
6. promote or engage in any deceptive trade practice (including spoofing, slamming, cramming, phishing, or attempting to scam or defraud a VK Customer into surrendering private and/or personal information);
7. contain pornographic, obscene, or offensive content; or
8. use any VK trademarks or imply that VK endorses or approves the Product
   Listing.

e. VK may modify, reject, remove, or censor any Product Listing for any reason, and may combine two or more Product Listings or elements of two or more Product Listings. If Seller believes a modified Product Listing would violate section 3.3.b, 3.3.c, or 3.3.d, Seller shall promptly notify VK. If Seller posts offers for sale a changed Product Listing, it will be deemed to have accepted any modifications made to that Product Listing. VK shall have no obligation to list, display, or otherwise offer on the Marketplace all Product Listing for which Seller provides Seller content, and listing any such Product(s) Listing is in VK’s sole discretion.

3.4. Product Listing Maintenance. Seller is responsible for its own Product Listings, including updating its Product Listings and pricing to ensure that they are accurate and comply with this Agreement.

3.5. Product Pricing.

a. Seller Established. Seller shall establish prices for its Product(s) in compliance with this Agreement. Seller will enter pricing using the Seller Portal, unless VK approves another method in writing.

b. Pricing Parity. Seller shall maintain Parity between the Product(s) it offers on a Marketplace and similar Product(s) offered through Seller’s other sales distribution channels. Notwithstanding the foregoing, Seller will not offer or make available for sale identical Product(s) on any other website.

c. Seller Pricing Errors. If Seller provides incorrect pricing information in a Product Listing (a “Seller Pricing Error”), VK may, at Seller’s expense, take any commercially reasonable action necessary to avoid or repair harm to VK due to the Seller Pricing Error, including requiring Seller to honor all Product purchases at the erroneous price and compensating Customers for any inconvenience caused by a Seller Pricing Error. Seller shall reimburse VK for all losses, expenses, or liabilities VK incurs as a result of Seller Pricing Errors.

Article 4

Product Sale, Delivery, Return, and Customer Service

4.1. Customer Orders.

a. Processing Customer Orders. Seller will be the seller of record. Customers purchasing Product(s) through the Marketplace will place orders using the VK’s checkout system and VK will collect all proceeds from such transactions, including shipping costs and applicable taxes based on shipment options and tax designations. The Customer is the purchaser of record. VK will electronically transmit to Seller the order information (“Transaction Information”) as described in the Seller Policy. If VK believes a transaction is erroneous, duplicate, contrary to a Marketplace Policy, or fraudulent, it may stop, cancel or prohibit the transaction.

b. Transfer of Customer Payments. Seller hereby appoints VK as an agent of Seller for the sole and express purpose of receiving payments from Customers for Seller’s Product(s) sold on a Marketplace. As between Seller and a Customer who purchases Product(s) from Seller, VK’s receipt of funds from the Customer will be deemed the receipt of funds by Seller. VK shall transfer the amount VK collected from the Customer, as set forth in the Policies. Seller agrees and acknowledges that: (a) once VK receives payment from a Customer, Seller will treat the Customer as if Seller has itself received the funds, regardless of whether Seller actually receives the payment from VK, and (b) its sole recourse for nonpayment by VK is against VK, and it will not seek any return, refund or payment directly or indirectly from Customers in the event of nonpayment by VK. VK reserves the right to offset any overpayments to Seller against any future Seller payments. VK may modify the schedule of payments from time to time upon prior notice to Seller. VK may withhold the payment of funds to Seller or return funds to Customers, if the Seller is the subject of an investigation, or there is a Demand against Seller, for any suspected or alleged wrongful conduct or any violation of this Agreement. VK will not be liable to Seller for any such amounts.

4.2. Taxes.

a. Responsibility for Seller Taxes.

1. Seller is responsible for:
   • A. if applicable, reviewing, determining, and maintaining the correct product tax codes, calculation settings and all related information for Product(s); and
   • B. reviewing all tax-exempt transactions.
2. VK will be responsible for:
   • A. collecting, reporting, or remitting Seller Taxes to any tax authority (except as required by Applicable Law), provider Seller follow VK’s Seller policy
   • B. providing support for tax exemptions based upon the identity of any individual, corporation or other entity, or the intended use of a product by any individual, corporation or other entity

b. Product Tax Codes. Upon request, for each of Seller’s Product(s), Seller will provide VK, in the format and manner required by VK, a reference to one product tax code and any related information requested by VK. If Seller does not provide a product tax code for a Product, VK will not collect any Seller Taxes for any transaction for that Product. It will remain Seller’s responsibility to determine, collect, report, and remit Seller Taxes to the appropriate tax authority if VK does not collect Seller Taxes for a Customer Order or Product Listing.

c. Collecting Taxes. If Seller provides product tax codes, VK shall turn on collection of Seller Taxes for jurisdictions in the United States from Customers who purchase Product(s) on a Marketplace on Seller’s behalf for the jurisdictions selected by Seller based on the product tax codes Seller provided. Except as required by Applicable Law, VK shall report and pay any Seller Taxes to the applicable tax authorities.

d. Tax Data. VK will not provide Seller tax advice, and that Seller is responsible for determining the applicability and accuracy of any tax data or tax collection.

e. Sales Tax On Payments To VK. Seller shall pay sales taxes, if any, pursuant to Applicable Law on any payments Seller owes to VK.

4.3. Shipping.

a. Seller Will Ship Product(s). Seller shall handle all aspects of shipping Product(s) to Customers in compliance with Applicable Law and the Policies. When Seller receives notice of a Customer Order from VK, Seller shall be solely responsible for, and bear all liability for, the fulfillment of the Customer Order in compliance with this Agreement and the Policies. VK will not be liable to Seller for any additional shipping cost for Product(s) other than shipping charges paid by Customer, as full payment for all shipping cost of such Product(s) to the Customer. Seller shall ship Purchased Product(s) within the time period specified in the Policies. Seller shall not substitute any Product for the Purchased Product(s). Title to and risk of loss of or damage to the purchased Product(s) will remain with Seller until delivery to the Customer. VK will not have title to, or be deemed the legal owner of, any Product(s). Seller bears the risk of all fraud except for
credit card chargebacks that result from unauthorized payments. Seller will be responsible for all costs related to fraud under any other circumstance, and all chargebacks related to Product(s) sold and Product fulfillment and delivery. For all credit card chargebacks for which Seller bears the risk, VK will offset such chargeback amounts against amounts otherwise owed to Seller or send Seller an invoice and Seller will pay such invoice within thirty (30) days of receipt.

b. Delivery Errors. Seller is responsible for any non-delivery or delivery error in connection with the delivery of its Product(s).

4.4. Customer Returns.

a. Seller Will Handle Returns. Seller shall handle any Customer returns of its Product(s) as set forth in the Policies. If Seller accepts a Customer return, it shall provide notice of the return to VK in the manner set forth in the Policies.

b. Refunds. Seller shall be responsible to provide refunds to Customers as set forth in the Policies.

4.5. Recalled Product(s); Defective Product(s). Seller shall immediately notify VK of any recall affecting a Product and shall immediately remove the Product Listing or its offers for sale posted to the Product Listing for that Product from all Marketplaces. Seller is responsible for all defective or recalled Product(s), including any losses, expenses, or liabilities related to recalls of its Product(s), and will bear all losses, expenses, or liabilities related to notifying Customers of and handling recalls of its Product(s). Seller shall indemnify and hold VK harmless for any and all loss, injury or Claim for any Recalled or Defective Product.

4.6. Customer Service Issues. Seller shall handle all customer service issues related to Seller’s Product(s). VK is not responsible for handling customer service issues related to Seller’s Product(s), and VK may direct Customers who contact it with service issues related to Product(s) to contact Seller using the contact information Seller has provided in the Seller Portal. If Seller does not handle a customer service issue or a request from VK to handle that issue, VK may take any actions necessary to ensure Seller’s compliance, and VK will not be liable to Seller for any results of those actions. If Seller does not handle a customer service issue to VK’s satisfaction, VK may contact the Customer and take any action to resolve the issue.

4.7. Chargebacks. VK may charge Seller for losses, expenses, or liabilities VK incurs related to Customer disputes related to Seller’s Marketplace transactions or Product(s) (“Chargebacks”). If VK wants to charge Seller for a Chargeback, it will send Seller a notice of that Chargeback. If VK sends Seller a Chargeback notice, Seller will respond and will provide VK any information requested in the Chargeback notice within five (5) business days of receiving the notice. If Seller does not respond to the Chargeback notice to VK’s satisfaction, VK may charge Seller for the Chargeback, and Seller will reimburse VK for the Chargeback.

4.8. Customer Reviews and Ratings. VK may ask Customers to rate or provide comments regarding Seller or the Product(s), and may post any resulting ratings or comments on the Marketplace for public display.

Article 5

Fees; Commissions; VK’s Right To Recovery

5.1. Monthly Subscription Fee. Seller shall pay VK the monthly subscription fees in the amount of Thirty-Five ($35) dollars per month for a Twelve (12) months Subscription (“Annually Subscription Fee”) or Forty-Five ($45) for a Six (6) months Subscription (“Bi-Annual Subscription Fee”), or otherwise mutually agreed up by the Parties, for access to the Marketplaces (the “Subscription Fee”). A Sellers will be locked in for life at the Subscription Fee as set for on the day of registration. they originally agree too (“Locked Subscription Fee”). Notwithstanding the foregoing, VK may change the Subscription Fee at any time in its sole discretion, and any revised Subscription Fee will be effective from the date it is posted. Should Seller elect not to renew the Agreement at the end of the Term, but later return and re-register with VK, Seller will only be eligible to lock in for the then current Subscription Fee. If Seller is thirty (30) days past due on Subscription Fee, VK reserves the right to terminate this Agreement.

5.2. Commissions. Seller shall pay VK commissions on all amounts VK collects on Seller’s behalf for sales of Product(s), less Seller Taxes, according to the “Commission Rate Schedule” specified in the Policies. Seller’s failure to pay Commissions constitutes a material breach of this Agreement.

5.3. Methods For Obtaining Payment. Upon VK’s demand, Seller shall promptly pay any amounts it owes VK. Seller hereby authorizes VK to use any of the following methods for obtaining payment of amounts Seller owes VK:

a. recouping or setting-off any payments VK owes to Seller by any amount Seller owes to VK;
b. reversing any credits to Seller’s Account;
c. Deducting amounts owed to VK from any Seller Holdback Funds VK requires;
d. charging Seller’s credit card, or deducting funds from Seller’s bank account; or
e. seeking payment from Seller by any other lawful means.

5.4. Holdback Funds. VK may in its reasonable discretion withhold payments to be made to Seller (“Holdback Funds”). If VK requires Seller to maintain Holdback Funds, it may withhold a reasonable sum from payments to be made to Seller based on Seller’s previous compliance with this Agreement and the Policies, or any other reasonable factors. The establishment of Holdback Funds does not create any trust relationship; VK may commingle any Holdback Funds with its other funds, and Seller will remain a general creditor of VK with respect to any Holdback Funds or other amounts VK owes to Seller.

Article 6
Intellectual Property

6.1. Grant of License by VK. VK hereby grants Seller a non-exclusive, revocable, nontransferable license to promote and sell Product(s) on or through the Marketplaces to Customers, subject to the terms of this Agreement.

6.2. Grant of License by Seller. Seller hereby grants VK a royalty-free, non-exclusive, irrevocable, perpetual, worldwide, royalty-free, right to use and to reproduce, modify, display, distribute, perform, re-format, merge, create derivative works of or otherwise commercially or non-commercially exploit in any manner Seller Information with the right to sublicense such rights through multiple tiers. VK shall not alter any Seller Marks from the forms provided by Seller except to the extent necessary for presentation, so long as the relative proportions of the marks remain the same. VK may also use Seller Information in any way that is allowed without a license from Seller under Applicable Law. “Seller Information” means any document or data that Seller uploads to the Seller Portal or provides to VK.

6.3. Ownership of Intellectual Property Rights. VK will own all right, title and interest in and any IP Rights in the Marketplaces and all data collected or stored in connection with the Marketplaces. Except as expressly provided in this Agreement, Seller will not have any ownership in or license to any such rights. If Seller is deemed to have any ownership interest or rights in all or any part of the foregoing, then Seller shall assign all of those interests and rights to VK. VK may use any Seller Information to create, develop, or modify the Marketplaces or any other VK concept, brand, software code, product, or feature (“Improvements”), and VK will own any Improvement and any IP Rights in an Improvement. If Seller is deemed to have any ownership interest or rights in an Improvement, Seller shall assign all of those interests and rights to VK.

6.4. Ownership of Content. Seller will own all Seller Marks and Seller Information subject to section 6.3 and the License Seller granted VK in this Agreement.

6.5. Ownership of Transaction Information. VK shall own all Transaction Information. Seller may only use Transaction Information to further a transaction related to this Agreement, in accordance with the terms of this Agreement, VK’s Privacy Policy and all applicable Law. Seller will not (i) disclose or convey any Transaction Information to any third party (except as necessary for Seller to perform its obligations under the Agreement); (ii) use any Transaction Information to conduct Customer surveys or for any marketing or promotional purposes; (iii) contact a Customer that has ordered a Product that has not yet been delivered with the intent to collect a payment in connection therewith or to influence such Customer to make an alternative or additional purchase; or (iv) target communications of any kind on the basis of the intended recipient being a Customer.

6.6. Infringement of Non-Party Rights. Seller shall ensure that its Product(s) and Seller Information do not infringe the intellectual property rights of a non-party. Seller shall immediately notify VK of any actual or alleged infringement of any intellectual property right of a non-party in connection with the Product(s) or Seller Information. Seller is responsible for any losses, expenses, or liabilities related to any actual or alleged infringement of a non-party’s intellectual property rights in connection with Seller’s Product(s) or Seller Information.

Article 7
Term and Termination

7.1. Term and Termination. This Agreement shall have an initial term of either six (6) months (“Six (6) months Subscription”) or one (1) year (“Twelve (12) months Subscription”) based on registration, commencing on the Effective Date (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for additional successive Six (6) months Subscription or Twelve (12) months Subscription, period based on registration (each, a “Renewal Term;” the Initial Term and Renewal Term(s) shall be collectively known as the “Term”). Either party may terminate this Agreement, by providing a notice of non-renewal at least thirty (30) days prior to the end of the then current Term to the other party. This Agreement may be terminated by either party upon ten (10) days’ written notice to the other party in the event that the other party materially breaches this Agreement and fails to cure such breach within such ten (10) day period. Exercise of such right by a party shall not limit any other rights or remedies such party may have against the other in respect of such breach.

7.2. Effect of Termination. Upon termination, any rights or obligations of a Party with respect to any outstanding sale transaction (including fulfillment and returns) will survive until completed. Any termination of this Agreement will be without prejudice to the rights of either party against the other with respect to any claim, right, or obligation arising before the termination. Any obligations of the parties relating to limitations on liability, confidentiality and indemnification, as well as any other obligations under this Agreement that by their nature are intended to survive, including any payment or customer service obligations in connection with the sale of Product(s) hereunder, will survive termination of this Agreement. Upon termination, VK may require Seller to maintain Holdback Funds to cover any amounts Seller does or may owe VK, including to cover amounts Seller will owe VK for Customer returns of Product(s) and Chargebacks.

Article 8
Disclaimer of Warranties

8.1. THE MARKETPLACE AND ANY RELATED SERVICES, CONTENT, SOFTWARE, ARTWORK, DATA, AND INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE MARKETPLACE, ARE PROVIDED “AS-IS.” AS A SELLER, YOU USE THE MARKETPLACE, AND SELLER PORTAL AT YOUR OWN RISK. EXCEPT THOSE SET FORTH IN SECTION 1.2 ABOVE, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, VK AND VK PARTIES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE MARKETPLACE OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. VK DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MARKETPLACE AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.

8.2. VK does not warrant or guarantee Seller’s results from using the Marketplaces.

Article 9
Limitation of Liability

9.1 VK WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF VK HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR THREE MONTH PERIOD PAID BY YOU TO VK IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.

Article 10
Indemnification

10.1. Seller Indemnity. Seller shall indemnify, and hold harmless the VK Parties from any and all claims, loss, damages, settlement, cost, expense, or liability of any kind (including, without limitation attorneys’ fees) (each, a “Claim”) arising from or related to: (a)Your Product(s), including but not limited to the offer, sale, fulfillment, refund, cancellation, return, or adjustments thereof; (b) Your Content; (c) any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing; (d) any personal injury, death, or property damage related thereto; (e) Seller’s taxes and duties or the failure to meet tax registration obligations or duties; (f) actual or alleged breach of any representations you have made; (g) Your breach of this Agreement or Applicable Law; (h) any act or omission of the Seller, its agents, employees, or subcontractors relating to the sale of a Product; or (i) Seller’s packaging, labeling, or advertising of a Product(s).

10.2. Indemnification Process. If VK seeks indemnification from a Claim, it may provide Seller reasonably prompt notice of that claim. If VK sends Seller a notice of a Claim, Seller shall respond reasonably promptly to VK’s request, and shall select counsel reasonably acceptable to VK to handle the Claim. A VK Party may also hire counsel at its own expense to participate in the defense of a Claim. Seller shall not bind a VK Party in a settlement of a Claim without that VK Party’s prior written consent.

Article 11

Confidentiality; Privacy; Data and System Integrity

11.1. Definition of Confidential Information.

a. “Confidential Information” means: (1) any technical or business data or information that a VK Party provides to Seller regardless of whether marked or identified as “Confidential”, (2) the terms of this Agreement, and (3) the operations and technology to be utilized in connection with the Seller Portal and Marketplace.

b. Confidential Information does not include information that:

1. pertains to goods that are sold or distributed by Seller to other retailers;
2. is already in Seller’s possession and not covered by a confidentiality obligation;
3. becomes publicly available without action or fault on Seller’s part; or
4. Seller obtains from a non-party without that non-party’s breach of an obligation or duty.

11.2. Treatment of Confidential Information.

a. Use.

1. Seller shall use Confidential Information only for performing under this Agreement. Seller shall preserve the confidentiality of any Confidential Information and any record containing Confidential Information.
2. Seller shall not disclose or permit the disclosure of such information or records to any non-party except: (A) to obtain services necessary to perform under this Agreement, (B) to obtain legal, tax, or accounting services, or (C) to respond to a valid subpoena or similar process.
3. Seller shall not disclose Confidential Information or records containing Confidential Information to a non-party under section 11.2.a.2.A or 11.2.a.B unless the non-party has a legal obligation to maintain the confidentiality of the information and Seller reasonably believes the non-party will in fact maintain the confidentiality of the information.
4. If Seller seeks to disclose Confidential Information pursuant to section 11.2.a.2.C, Seller will provide VK reasonable notice before disclosing the information, and VK may reasonably respond to the proposed disclosure.

b. Return or Destruction. Seller shall promptly return or destroy any Confidential Information or records containing Confidential Information at VK’s request, except to the extent the information or records are: (1) contained in backup media used as such, (2) required to be maintained under Applicable Law, or (3) necessary for purposes of prosecuting or defending a claim related to this Agreement.

11.3. Customer Personal Information.

a. Definition. “Customer Personal Information” means any data or information related to identified or identifiable Customers or related non-parties (such as non-parties that Customers designate as recipients of shipments).

b. Use of Customer Personal Information. VK will own all Customer Personal Information that it or Seller collects. Seller shall use Customer Personal Information only in accordance with Applicable Law and only to perform Seller’s obligations or exercise Seller’s rights under this Agreement or as necessary for legal compliance. Seller shall not:

1. transmit Customer Personal Information to any non-party except for purposes of performing under this Agreement;
   
2. use Customer Personal Information to send marketing materials to or contact any person except for purposes of performing under this Agreement;
   
3. solicit additional information from a Customer or related individual;
   

c. Protection of Customer Personal Information. Seller shall protect Customer Personal Information from unauthorized access, use, deletion, degradation, encryption, or disclosure (a “Data Breach”). Seller shall maintain industry standard data security measures and processes. If Seller obtains any Customer credit card data in connection with this Agreement, Seller will also comply with Payment Card Industry Data Security Standards. Seller shall not transmit Customer Personal Information in any unsafe manner or to any person unless Seller reasonably believes that person will maintain the confidentiality and security of the information. If Seller learns of any Data Breach, Seller will immediately notify VK of the breach and will
cooperate fully with VK to respond to the breach.

11.4. Use of Marketplace Systems.

a. Seller Credentials. Seller shall maintain the security of Seller’s log-in credentials to Marketplaces. Seller is responsible for any expense, loss, or liability caused by the loss or breach of those credentials.

b. Informational Security. Seller will use appropriate internal information security practices to prevent the compromise of its information systems, computer networks and data files by unauthorized users, viruses or malicious computer programs which could in turn be transmitted to VK or compromise the security of VK Confidential Information (as defined in the Section titled “Confidential Information” above), including without limitation, the Transaction Information. Seller shall promptly notify VK of any breach and take all necessary actions to remediate the breach. Seller shall be responsible for any costs, damages or legal notification procedures resulting from any breach of this Section.

c. No Unauthorized Use. Seller shall not use a Marketplace or any of its systems, code, or APIs:

1. to violate the security of, or gain unauthorized access to, any computer, computer network, or other device or system;
2. to discover passwords or security encryption codes;
3. to use any robot, spider, site search or retrieval application, or other device to retrieve or index any portion of a Marketplace;
4. to collect any information about Customers;
5. to reformat or frame any portion of the Marketplace;
6. to attempt to duplicate all or any part of the Marketplace or its code, or to attempt to reverse engineer or decompile any code, or to attempt to create a substitute or competing marketplace service;
7. in a manner that would be detrimental to the function of the Marketplace or to other sellers’ or Customers’ use of or access to the Marketplace.

d. No Archive Use. Seller acknowledges that VK is not providing archive services and that the Marketplaces are not intended to function as archives. Seller is responsible for maintaining independent archival and backup copies of Seller’s information.

11.5. Equitable Relief. Seller acknowledges that a breach of Article 11 would result in harm to VK that could not be adequately remedied by payment of money damages, and that VK may seek equitable relief, including an injunction, to prevent such a breach. Seller states that, if VK seeks equitable relief to prevent a breach of Article 11, Seller will not argue that equitable relief is not appropriate or available to VK.

Article 12
Governing Law & Disputes

12.1. Governing Law. The laws of the State of New Jersey, without regard to their conflicts or choice of law rules, govern all matters relating to this Agreement.

12.2. Disputes. The Parties shall use commercially reasonable efforts to resolve any dispute, claim, or question relating to the Agreement or any alleged breach of the Agreement (a “Dispute”). The Parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a fair and equitable resolution satisfactory to both Parties. If one Party gives written notice of a Dispute to the other Party, then, within five (5) business days after the other Party receives the notice, each Party shall designate an individual or individuals in their respective organizations who shall have the authority to resolve the Dispute (“Designated Contacts”). The Designated Contacts shall meet to attempt to resolve the Dispute. The Designated Contacts shall negotiate in good faith and use commercially reasonable efforts to reach a mutually agreeable resolution within ten (10) business days from the date the meetings commenced.

a. Mediation. If the Dispute has not been resolved within ten business (10) days of the last meeting under the foregoing paragraph, or if either Party will not participate in said procedure, then the Parties shall endeavor to settle the dispute by mediation in accordance with the then current mediation rules of the American Arbitration Association (“AAA”). The mediation process shall be initiated by a Party giving a notice of request for mediation (the “Request”) to the other Party, specifying the scope of the requested mediation. If the Parties are unable to agree upon a mediator within ten (10) days of the date of the Request, then they shall request AAA to appoint a mediator, and the Parties hereby agree to such mediator’s service. The mediator’s compensation and expenses shall be advanced equally by the parties. The place of mediation shall be Trenton, New Jersey, at any location as the mediator directs, having due regard for the convenience of the Parties and of the mediator. All applicable statutes of limitation shall be tolled during the existence of any AAA mediation under this Section.

Article 13
Miscellaneous

13.1. Use of Subcontractors. Seller may use subcontractors in its performance under this Agreement. If Seller uses subcontractors, Seller will: (a) be responsible for the acts or omissions of its subcontractors, and (b) require subcontractors to act in compliance with this Agreement. VK may require Seller to stop using any subcontractor for any reason.

13.2. Invalidity; Waiver. No finding that any part of this Agreement is invalid will affect the remaining portions of this Agreement. The waiver by any party of a breach of any provision of this Agreement by the other party, will not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor will any delay or omission by either party to exercise or enforce any right or remedy under this Agreement operate as a waiver of any right or remedy.

13.3. Assignment. Seller shall not assign or transfer any of its rights or obligations under this Agreement without VK’s written consent. Any such attempted assignment or transfer will be void.

13.4. Insurance. VK may require Seller to maintain insurance coverage and limits as required by Applicable Law and the Policies.

13.5. Notice. Unless otherwise specified in this Agreement, VK may provide notices to Seller through the Portal, or at the address, email address, or fax number Seller specifies in the Portal. Seller shall send all notices to VK through the Portal. All notices provided by VK to Seller through the Portal, or by email, fax, or any other form of electronic communications will be construed as being “in writing”.

13.6. Integration; No Reliance. This Agreement, the Policies, and any Seller specific addenda govern Seller’s access to and use of Marketplaces. Seller states that it is not relying on any promises or statements of fact not contained in these documents in deciding whether to enter into this Agreement.

13.7. Feedback. If You or any of Your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to any Marketplace (including any related technology), VK will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.

13.8. Construction. If the terms of this Agreement or a Policy conflict with the terms of a Seller specific addendum, the terms of the Seller specific addendum will control. If the terms of this Agreement conflict with the terms of a Policy, the terms of this Agreement will control.

13.9. Force Majeure. VK will not be liable for any delay or failure to perform any obligations under this Agreement by reasons, events or other matters beyond our reasonable control.

13.10. Relationship of Parties. The parties enter this Agreement intending that Seller will be an independent contractor. This Agreement does not create any partnership, joint venture, agency, sales representative, or employment relationship between the parties. This Agreement will not create an exclusive relationship between you and us. This Agreement is for the sole benefit of VK, Customers, and Seller, and there are no other intended non-party beneficiaries of this Agreement. VK hereby recommends that Seller obtain counsel of its own choosing in reviewing this Agreement and deciding whether to enter into this Agreement.

Article 14
Definitions

14.1. “Account” means Seller’s Marketplace account, which is accessible through the Portal.

14.2. “Applicable Law” means all requirements of federal, state, or other jurisdictional laws, regulations, ordinances, and administration orders and rules of the United States, its territories, and all other countries in which the Product(s) are produced, sold, or delivered.

14.3. “Business Day” means a day, Monday through Friday (Eastern, USA local time), on which banks are open and transacting business that is not a U.S. Federal holiday.

14.4. “Customer” means any customer accessing a Marketplace, or placing or receiving any order for Product(s) via a Marketplace.

14.5. “Customer Order” means an order of a Product by a Customer.

14.6. “Demand” will mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation.

14.7. “Excluded Product” means Product(s) that: (a) are stolen, replicas, counterfeits or unauthorized copies; (b) violate the intellectual property rights of others such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy; (c) You do not have full right and authority to sell; (d) violate any Laws, including those governing export control or consumer protection; or (f) contain any material that is obscene, pornographic or that contains child pornography.

14.8. “IP Rights” means all intellectual property rights which now or hereafter exist throughout the universe, whether conferred by operation of law, contract, or license, including rights of authorship, including copyrights, moral rights and mask-works, marks, cosmetic designs, ornamental appearance and trade dress, trade secret rights, inventions, and technology (whether patentable or not and whether or not reduced to practice), Confidential Information (as defined herein), software and databases, rights of publicity, patents, designs, algorithms, and other industrial property rights, and “rental” rights and rights to remuneration;

14.9. “Parity” means that a Product’s price (including any discount, rebate, or “low price” guarantee), quality (including quality assurances), shipping and handling charges (including any free or discounted shipping and handling), or other benefits are at least as favorable to Customers on the VK Marketplace as those associated with identical Product(s) offered on Seller’s other sales distribution channels.

14.10. “Product(s)” means the goods, offers, or services, including shipping costs, that Seller markets and lists for sale to Customers on the Marketplace.

14.11. “Product Listings” means the offers Seller creates for display on the Marketplaces related to the sale of Product(s).

14.12. “Purchased Product(s)” means the Product(s) requested in a Customer Order.

14.13. “Seller Information Page” means the page on a Marketplace that contains the Marketplace’s Seller terms and conditions, policies and procedures, and other information for Sellers.

14.14. “Seller Marks” means all of Seller’s domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names.

14.15. “Seller Portal” means the online interface by which Seller accesses its Marketplace account, communicates with VK Outfitters, uploads its Product Listings, manages its Customer Orders, and other such activities related to this Agreement. “Seller Taxes” means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred, or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by Seller, or otherwise in connection with any action, inaction or omission of Seller, any of affiliate of Seller, or any of Seller’s or its affiliates’ employees, agents, contractors or representatives.

14.16. “VK Marks” means all VK domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names.

14.17. “VK Parties” means VK and all of its past, present and future parents, subsidiaries, affiliates, directors, officers, and employees.

Signature and Date

The Parties hereby agree to the terms and conditions set forth in this Agreement. This agreement is demonstrated by their signatures below: