1. Services: Company will recommend to Partner product SKU or ASINs (“Product IDs”) that Partner may integrate into its content from time to time in Partner’s sole discretion and shall pay Partner a commission based on Product IDs that result in sales (the “Services”). Within 2 business days of the last day of the month, Partner shall provide Company with a report containing a complete and accurate list of the Product IDs published in such month, as well as the product name, quantity sold (the “Monthly Report”), ship date and unit price. Partner will provide data in the format requested by Company. Company retains the right to add or subtract from the total list of eligible Product IDs by providing Partner at least 48 hours’ written notice. Compensation will only be paid on the approved list of Product IDs based on email correspondence between both parties. For clarity, as long as a Product ID had been on the list provided by Company at the time the product was sold, Partner shall receive compensation for such sale (even if the Product ID is later removed from the list).
2. Compensation: Company shall calculate the gross merchandise value of products sold based on the Monthly Report and shall pay Partner 3% for up to $100K matched gross merchandise value (GMV) / 3.5% for $100K+ and up to $500K matched GMV / and 4% for $500K+ matched GMV, such amount within 30 days of the end of each calendar month.
3. Term and Termination: This Agreement shall commence on the Effective Date and shall continue in effect until terminated by either Party for any reason upon thirty (30) days prior written notice.
4. Nondisclosure of Confidential Information:
A. “Confidential Information” means a Party’s and its affiliates’ business and technical information in any form, including without limitation, business and marketing plans, data, strategies, sales, product and financial data and projections, formulas, processes, techniques, trade secrets, know-how, inventions, processes (business, technical or other), designs, algorithms, source code, customer lists, and the terms of this Agreement.
B. Each Party acknowledges that in connection with this Agreement it may from time to time receive Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”). The Parties agree that (a) the Receiving Party shall not disclose to others nor authorize any of its employees, agents, consultants or representatives to disclose to others any of the Disclosing Party’s Confidential Information, except as expressly permitted under this Agreement, (b) the Receiving Party shall use the Disclosing Party’s Confidential Information solely for the purpose of carrying out its responsibilities and obligations or exercising its rights under this Agreement (the “Purpose”) and (c) the Receiving Party shall use the same degree of care to protect the confidential nature of the Disclosing Party’s Confidential Information that the Receiving Party takes to protect its own Confidential Information of a similar nature and value, but in no event less than reasonable care, including industry standard controls. The Receiving Party shall limit its own use and/or distribution of the Disclosing Party’s Confidential Information to the Receiving Party’s own employees, agents, consultants, or representatives on a “need to know” basis who have been advised of the obligations of confidentiality and agreed to be bound by them or, alternatively, are under pre-existing obligations of confidentiality substantially as protective as those set forth in this Agreement. The Receiving Party further acknowledges that the Disclosing Party’s Confidential Information is and shall remain the sole property of the Disclosing Party (including any intellectual property rights therein). The Receiving Party will not, without first obtaining the written consent of the Disclosing Party, or as otherwise permitted hereunder, disclose to any person, firm or enterprise, or use for its own benefit, any of the Disclosing Party’s Confidential Information except as permitted for the Purpose.
C. Except with respect to personal data, the Receiving Party’s obligation of confidentiality hereunder shall not extend to Confidential Information that the Receiving Party can document (a) is legally in the Receiving Party’s possession or already known by it free of any confidentiality obligation prior to the time it is received from the Disclosing Party, (b) is or subsequently becomes legally and publicly available without restriction without breach of this Agreement, (c) is rightfully received by the Receiving Party from a third party without restriction and not in violation of any duty of non-disclosure on the part of such third party or (d) the Receiving Party independently developed, or had developed for it, without use or reference to the Disclosing Party’s Confidential Information. If the Receiving Party must disclose the Disclosing Party’s Confidential Information pursuant to a validly issued order of a court, administrative agency or other governmental body with jurisdiction over the Parties hereto, or as required by law or regulation, or in response to an audit, inquiry, request or other investigation by a governmental agency, the Receiving Party will, to the extent that it may legally do so, (i) first provide the Disclosing Party with prompt written notice of such disclosure and take reasonable steps to allow the Disclosing Party, at its sole option and expense, to object to such disclosure, seek a protective order with respect to the confidentiality of the information to be disclosed or take such other action as it deems appropriate to protect its Confidential Information and (ii) disclose only reasonably related portions of the Disclosing Party’s Confidential Information.
D. In the event of any termination or expiration of this Agreement or at any time upon written request of the Disclosing Party (which request shall not apply to the Services, any portion thereof or any other Confidential Information in which the Receiving Party has continuing rights that it may exercise) the Receiving Party shall, at the Disclosing Party’s discretion, either promptly return to the other party or destroy the other party’s Confidential Information and all full and partial copies thereof in its possession or the possession of any third party who received such Confidential Information from the Receiving Party.
5. No Rights Granted: Nothing in this Agreement shall be construed as granting to a Party any rights under any patent, copyright or other intellectual property right of the other Party, nor shall this Agreement grant a Party any rights in or to the other Party’s Confidential Information, except the limited right to use such other Party’s Confidential Information or any other materials provided in connection with the provision or use (as applicable) of the Services.
6. Trademark Usage: Company shall not have the right to use Partner’s name, logo or trademarks for any purpose except as may be approved by the Partner in writing in each instance.
7. Representations and Warranties; Indemnity: Partner represents and warrants that it will not use the Product IDs for any purpose other than as contemplated herein. Company represents and warrants that it has the right to grant the license and other rights relating to the Services provided under this Agreement, and during the term of this Agreement, it shall maintain all rights in and to the Services necessary to permit Partner to exercise the licenses and other rights granted under this Agreement. Each Party represents and warrants to the other that it will comply with all applicable laws and regulations in the performance or use (as applicable) of the Services. Each Party shall defend, indemnify and hold harmless the other Party, its affiliates and their respective officers, directors, employees, agents, representatives, successors and assigns from and against any and all liability, claims, demands, damages, losses and expenses, including attorneys’ fees, in connection with or arising out of a third party claims of: (a) any breach of the indemnifying Party’s representations, warranties or covenants set forth in this Agreement, (b) gross negligence or willful misconduct in connection with this Agreement or (c) a violation of applicable laws or regulations.
8. No Contact: During the term of this Agreement, Partner and its agents and representatives will not, directly or indirectly, contact or communicate with any manufacturer, supplier, importer or distributor of any Product IDs without the prior written consent of Company.
9. Non-Exclusivity: Nothing in this Agreement will be deemed to limit or restrict Company from entering into any agreements similar hereto with any other outside third parties. Partner acknowledges that Company can engage in transaction with third parties, or undertake its own activities, whether or not similar to the services and transactions provided or contemplated by this Agreement or which may be competitive with the business of Partner.
10. Data Restriction and Collection: Company will not use or publish the Monthly Reports, nor any Partner data contained therein, outside of the scope and purpose of the Services. The Parties agree that no personally identifiable information (“PII”) as defined under US Law is being transferred between the Parties or included in the Monthly Reports, and that Company is not collecting or storing any PII from Partner.
11. Publicity: The Parties will hold the existence, nature and scope of this Agreement and the Parties’ relationship in strict confidence. Except as required by law, neither Party will make any public or private announcements or statements concerning the Parties’ relationship or any terms or conditions of this Agreement without the prior written consent of the other Party.
12. Nature of Relationship: The Parties agree and acknowledge that the relationship of the Parties is that of independent contractors. No joint venture, partnership, agency or fiduciary relationship exits between the Parties and the Parties do not intend to create any such relationship by this Agreement. Neither Party is, nor will either Party hold itself out to be, vested with any power or right to bind the other Party or to act on behalf of the other Party, as agent or otherwise.
13. Miscellaneous: Any term of this Agreement may be amended or waived only with the written consent of the Parties. This Agreement, including any schedules hereto, constitutes the sole agreement of the Parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of New York, without giving effect to the principles of conflict of laws. The Parties hereby submit and consent to the exclusive jurisdiction of and venue in, the federal and/or state courts located in New York County in the State of New York in connection with any action or proceeding arising out of this Agreement and hereby waive any objection of inconvenient forum. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument. Electronically executed or electronically transmitted signatures have the full force and effect of original signatures. Neither Party shall assign, transfer, or subcontract this Agreement or any obligations under this Agreement without the prior written consent of the other Party; provided that either Party may assign this Agreement to an affiliate of such Party or to a successor in interest by merger or sale of assets. To the extent that this Agreement is validly assigned, it shall be binding and inure to the benefit of the Parties, and their respective successors and assigns. In the event that any provision of this Agreement is determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.