These Terms and Conditions for Vendors are a legally binding agreement with the vendor/provider of the product or service that will be sold through the dealswhoa.com website.
For purposes of this Agreement, the following terms shall have the indicated definitions:
“DealsWhoa” means the DealsWhoa owned website located at www.dealswhoa.com;
“Confidential Information”: means any data or information, oral or written, treated as confidential that relates to either Party’s (or, if either Party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced product(s) and service(s), any information relating to services, developments inventions, processes, plans, financial information, forecasts, and projections and the financial terms of this Agreement.
Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving Party prior to the date of this Agreement as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving Party; (iii) it has been rightfully received by the receiving Party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; or (iv) it is required to be disclosed pursuant to final binding order of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information has been given reasonable notice of the pendency of such an order;
“Digital Content” means all materials comprising a Vendor’s product, including, but not limited to, any software, services, images, photographs, illustrations, graphics, audio clips, video clips, documentation or text, and Marks;
“E-commerce services” means the sales of products by DealsWhoa to its customers via DealsWhoa Site or Promotional Third-Party Site(s);
“Effective Date” means the date when this Agreement shall be executed by the last Party;
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, rights over databases and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction;
“Marks” means all trademarks, service marks, trade names, logos, words or symbols identifying either Party or either Party’s respective products or services;
“Party” or “Parties” means DealsWhoa and/or Vendor;
“Promotional Third-Party Site(s)” means one or more websites or web services owned or controlled by DealsWhoa or upon which DealsWhoa has an account or membership, on which DealsWhoa promotes and sells the Vendor’s Digital Content;
“Customer” means any individual / legal entity who purchases any products from DealsWhoa Site or Promotional Third-Party Site(s).
Under this Agreement, the Vendor appoints DealsWhoa to perform promotional and e-commerce sales in relation to the Vendor’s Digital Content in order to sell the Vendor’s Digital Content through DealsWhoa Site or Promotional Third-Party Site(s).
For the sale of the Vendor’s Digital Content through DealsWhoa Site or Promotional Third-Party Site(s) instructed by DealsWhoa, the latter shall pay to the Vendor a payment in the percentage set forth in the Agreement out of the price actually paid by a Customer for the respective Digital Content less any refunds and/or taxes retained by DealsWhoa for each sale that takes place either through the DealsWhoa Site or through Promotional Third-Party Site(s) instructed by DealsWhoa.
The payment by DealsWhoa of the payment mentioned in the Agreement shall be made within the term indicated in the Agreement.
Each Party is responsible for the calculation and payment of any/all of their taxes for the incomes obtained under this Agreement.
The term of this Agreement shall commence on the Effective Date and remain ongoing as mentioned in the Agreement from the Effective Date (the “Term”).
The Vendor grants to DealsWhoa a nonexclusive right to promote and sell its Digital Content on DealsWhoa Site or Promotional Third-Party Site(s) during the term of this Agreement.
DealsWhoa shall promote and sell the Vendor’s Digital Content in the manner determined appropriate by DealsWhoa and in compliance with its own promoting and selling strategy, which may include preparation of the featured image and description of the Digital Content; setup the systems so customers can access the product as fast as possible; distribute the Digital Content based on the type of product so as to reach the appropriate audience see it; links to Promotional Third-Party Site(s).
The sales of Vendor’s Digital Content by DealsWhoa shall be effected through DealsWhoa billing or/and other authorized, server and computer systems.
Subject to the terms and conditions of this Agreement and solely for the purpose of fulfilling DealsWhoa’s obligations hereunder, Vendor hereby grants to DealsWhoa during the Term, to the full extent permitted by the applicable law, a non-exclusive, worldwide, royalty-free license to use any of the Vendor’s Intellectual Property Rights and display any product information, specifications, warranty information, data, images, and/or intellectual property Vendor furnishes to DealsWhoa for use in its e-commerce business during the Term. DealsWhoa may use such rights for any purpose related to this Agreement in furtherance of promoting and selling Vendor’s Digital Content including use in DealsWhoa Site or Promotional Third-Party Site(s), emails, and marketing or advertising campaigns. Vendor acknowledges that DealsWhoa is relying upon Vendor to ensure that all such content is accurate and complete and Vendor agrees to notify DealsWhoa and revise and resubmit such content promptly upon discovery that it is inaccurate or incomplete.
The above license shall contain a temporary:
(a) reproduction right (including the right to storing the Digital Content in any medium and make copies which are transient or incidental to the use of the Digital Content);
(b) the right to lawfully make available to the public the Digital Content;
(c) to publicly publish and distribute, in electronic form, the Digital Content; and
(d) to create derivative works or modifications to the Digital Content for editorial or stylistic reasons.
Vendor grants DealsWhoa the right to allow Customers to copy, print and use the Digital Content.
Each Party retains all right, title and interest, including all Intellectual Property Rights, in and to (a) its Marks, content, database(s) and site; and (b) any inventions, developments or technology resulting from or in connection with the performance of such Party’s obligations hereunder. Except as expressly set forth in Article 5.4 above, each Party reserves all rights and grants the other Party no licenses of any kind hereunder.
Except as expressly provided herein above, DealsWhoa and Vendor agree to (a) not use the other Party’s Intellectual Property Rights without their prior written consent, (b) only use the other Party’s Intellectual Property Rights in accordance with any quality standards and usage guidelines as may be provided by such other Party; and (c) upon termination of this Agreement for any reason, immediately cease all use of the other Party’s Intellectual Property Rights.
DealsWhoa shall have the right to place the Vendor’s logo, tradename and trademark on the DealsWhoa Site or Promotional Third-Party Site(s) as a means to identify the Vendor and to otherwise use such items in connection with the purposes of this Agreement. DealsWhoa shall follow all reasonable directions from the Vendor concerning the protection under applicable laws of such logo, tradename and trademark.
Both DealsWhoa and Vendor reserve the right at any time without liability or prior notice to:
(a) determine the contents of each Party’s own respective websites, products and services, including specifications, features, and functions, as well as any documentation or related materials;
(b) discontinue distribution of any or all of each Party’s own respective products and services in some or all markets or through some or all channels of distribution;
(c) change or terminate any of each Party’s own respective specifications, features, or functions of the presentation aspects of products and services;
(d) change or terminate the level or type of support or service that each Party makes available for their products and services at any time and without notice.
Neither Party is responsible to the other Party for any customer service support for purchases and fulfillment of the other Party’s products and services including but not limited to, providing qualified personnel to receive customer inquiries.
Solely for the purpose of fulfilling its obligations hereunder, DealsWhoa shall be entitled to change, at its sole and absolute discretion and based on its own marketing strategy, the name of the Vendor’s Digital Content given by the latter.
Vendor agrees and acknowledges that DealsWhoa shall have the sole right for the design, look and feel, architecture, layout, positioning and all aspects of the DealsWhoa Site including listing, positioning, indexing and placement of the Digital Content offered for sale by the Vendor and the latter shall not question or dispute such exercise of DealsWhoa’s right.
DealsWhoa represents and warrants to Vendor that it has sufficient right, title, interest, authority, and all necessary approvals, permissions and licenses to perform its obligations hereunder.
Vendor represents and warrants to DealsWhoa that it has sufficient right, title, interest, authority, and all necessary approvals, permissions and licenses in respect of the Digital Content and Digital Content Marks to license such Digital Content and Digital Content Marks to DealsWhoa and to authorize DealsWhoa to perform its obligations hereunder and that the Digital Content and Digital Content Marks, and DealsWhoa’s exercise of any rights granted hereunder, will not violate any Intellectual Property Rights of any third party. Vendor warrants that the Digital Content shall be free of viruses, worms, trojans, and other disabling code.
DealsWhoa agrees and acknowledges that under no circumstances shall Vendor be liable for any indirect, incidental, special or consequential damages (including without limitation, damages for lost profits or revenues), arising out of or in connection with this Agreement, whether or not such damages could reasonably be foreseen or their likelihood has been disclosed by DealsWhoa. DealsWhoa agrees and acknowledges that Vendor’s total liability arising out of or in connection with this Agreement shall in no event exceed the amount received by Vendor from DealsWhoa in the preceding twelve (12) month period, or such amount pro-rated over such shorter period if this Agreement has not been in effect for a twelve (12) month period.
Vendor agrees and acknowledges that under no circumstances shall DealsWhoa be liable for any indirect, incidental, special or consequential damages (including without limitation, damages for lost profits or revenues), arising out of or in connection with this Agreement, whether or not such damages could reasonably be foreseen or their likelihood has been disclosed by Vendor. Vendor agrees and acknowledges that DealsWhoa’s total liability arising out of or in connection with this Agreement shall in no event exceed the amount received by DealsWhoa from Vendor in the preceding twelve (12) month period, or such amount pro-rated over such shorter period if this Agreement has not been in effect for a twelve (12) month period.
The term of this Agreement will commence on the Effective Date and will continue in force thereafter unless terminated in accordance with the provisions of this Article 8 (the “Term”).
Either Party may terminate this Agreement without cause at any time upon sixty (60) days prior written notice to the other Party.
If either Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice describing the breach, the other Party may terminate this Agreement immediately by written notice to the breaching Party.
This Agreement will terminate immediately upon either Party’s insolvency, bankruptcy, receivership, dissolution, or liquidation.
Upon termination of this Agreement, DealsWhoa will cease to promote and sell Vendor’s Digital Content and cease all use of Vendor’s Marks. Termination of this Agreement will not affect any rights or obligations of either Party that accrued prior to the effective date of termination. Articles 5.5, 6, 7, 9, and 10 will survive termination of this Agreement.
Each Party agrees that it will not disclose any Confidential Information of the other Party except as expressly authorized by this Agreement or as necessary to perform its obligations under this Agreement. Each Party will take all reasonable measures to protect the confidentiality of the other Party’s Confidential Information, which measures will be at least as protective as those taken to protect its own Confidential Information. Confidential Information may be disclosed to the extent required by law or regulation, provided that the disclosing Party provides the other Party with reasonable prior notice, if not prohibited by law, of such disclosure and cooperates with the other Party’s efforts to seek a protective order or other appropriate remedy.
All notices required or permitted to be given under this Agreement must be in writing and delivered to the other Party at its address specified in this Agreement or such other address as may be designated by the Party in writing.
This Agreement will be governed by and construed in accordance with the laws of the jurisdiction specified in the Agreement, without regard to its conflict of laws principles.
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, and negotiations, whether written or oral, between the Parties with respect to the subject matter hereof.
This Agreement may not be amended except in a writing signed by authorized representatives of both Parties.
No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party against whom the waiver is to be enforced. No waiver of any breach or default will be deemed a waiver of any subsequent breach or default.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, except that either Party may assign this Agreement to an affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets. Any purported assignment in violation of this Article will be void.
The Parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. Neither Party has any authority to make or accept any offers or representations on behalf of the other Party.
Neither Party will be liable for any delay or failure to perform its obligations under this Agreement due to any cause beyond its reasonable control, including but not limited to acts of God, war, terrorism, strikes, labor disputes, civil disturbances, governmental regulation, or any other cause beyond the reasonable control of the Party whose performance is affected.
This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document.
The Parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy.
If the dispute has not been resolved by negotiation within sixty (60) days after one Party’s notice to the other Party of its desire to negotiate, the Parties will attempt to settle it by mediation under the mediation rules of a reputable mediation service mutually agreed upon by the Parties.
If the dispute has not been resolved by mediation within sixty (60) days after the commencement of mediation, either Party may commence binding arbitration under the arbitration rules of a reputable arbitration service mutually agreed upon by the Parties. The arbitration will be conducted by a single arbitrator, and the arbitrator’s decision will be final and binding on the Parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief to protect its Confidential Information or Intellectual Property Rights at any time.