Shoppable | Shoppable til you Droppable

SUBSCRIPTION AGREEMENT

Last Update: June 5, 2017

THIS AGREEMENT GOVERNS YOUR USE OF SHOPPABLE SERVICES.

IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

1. This Integrated E-Commerce Platform License Agreement together with all exhibits hereto, (this “Agreement”) is made as of the date of acceptance by the company identified in the registration page (“Company”) and 72Lux, Inc. DBA Shoppable® with an address of 139 Fulton Street, New York, NY 10038 (“Shoppable”). This Agreement constitutes a legal agreement between Shoppable and Company, and governs the integrated platform license arrangement between Shoppable and Publisher relating to the integration of shoppable Products (as defined below) through the Company Site (as defined below). The individual who accepts this Agreement on behalf of the Company warrants and represents that he or she is authorized to enter into this Agreement on behalf of the Company. Definitions. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.

“Shoppable Platform” means the platform developed and owned by Shoppable that permits content providers to integrate e-commerce capabilities into their websites.

“Shoppable Marks” means the following trademarks and/or logos owned by Shoppable: [72Lux, Shoppable].

“Company Site” means the web site or mobile application owned and operated by Company and identified on the registration page that is permitted to access and use the Shoppable Platform.

“Order Form” means an the web-based form specifying the Services the Shoppable offers and that Company chooses from and purchases during the registration form.

“Product” means a Retailer product included in the Product Catalog.

“Publisher Portal” is Shoppable’s web-based platform that contains access to Product Catalog, embeddable product frames, and reporting.

“Product Catalog” means Shoppable’s catalog of Products (and related images, descriptions, pricing and other information provided by Retailers) that can be made available for sale to Users through the Shoppable Platform.

“Retailer” means a retailer with whom Shoppable has an agreement that permits Shoppable to include the retailer’s Products in the Product Catalog and grants Shoppable a commission on sales of such Products.

“Services” means the products and services that are ordered by Company on the Order Form and made available by Shoppable.

“User” means any person who accesses the Shoppable Platform through Company Site.

“User Data” means any and all data and information concerning a User collected by the Shoppable Platform, including, without limitation, all identifying information provided by the User (e.g., name, email address, mail address) and all information regarding Product(s) purchased by the User.

 

2. Use of the Shoppable Platform

2.1 Permitted Use. Subject to the terms set forth herein, Shoppable hereby grants Company a non-exclusive, non-transferable, revocable license, during the Term and solely as necessary to make Product Sales, (i) to incorporate portions of the Product Catalog into the content of the Company Sites, and (ii) to provide access to the Shoppable Platform to Users of the Company Sites. Prior to permitting any User to access the Shoppable Platform, Company shall require each User to agree to and affirmatively accept Shoppable’s Terms of Use and Privacy Policy, which shall be provided to Company on or before the Effective Date and may be revised from time to time by Shoppable upon notice to Company.

2.2 Restrictions on Use. Company shall not (i) disassemble, decompile, reverse engineer, or otherwise attempt to discover the source code of, the Shoppable Platform or its underlying technology, (ii) provide access to the Shoppable Platform from any website other than Company Site, (iii) incorporate portions of the Product Catalog on any website other than Company Site, or (iv) use the Shoppable Platform or Product Catalog in any manner not expressly authorized by this Agreement. Company further agrees to not resell Shoppable Platform.

2.3 Branding and Publicity.

(a) Company shall require each Company Site to identify the Shoppable Platform as being “Powered by Shoppable” on the checkout page and as decided by Shoppable. Shoppable hereby grants Company a non-exclusive, non-transferable, revocable license, during the Term, to permit its Company Sites to use the Shoppable Marks solely in connection with such identification. The permitted use of the Shoppable Marks hereunder, and all goodwill arising therefrom, shall inure solely to the benefit of Shoppable.

(b) Shoppable may use Company’s name or logo and screenshots of Company Site on Shoppable’s websites, marketing and sales materials, and in press releases to list them as a client during the terms of this agreement.

2.4 Exclusivity: During the Term, Company shall not use any product or service that is substantially similar to the Shoppable Platform on any Company Site.

 

3. Fees; Revenue Share

3.1 License Fees. Company shall pay Shoppable all fees as determined by the Services Company registered for on the Order Form and the pricing listed on the Order Form. Company selects their option at the time of sign up. All such fees shall be payable immediately upon sign up and in advance of each Renewal Term. If Company does not pay all fees due within five (5) calendar days of the due date (the “late period’) the Company will pay a late payment of 10% of the amount outstanding (in addition to the amount outstanding) for each month the payment is late. Shoppable reserves the right to temporarily pause service and access to Shoppable Platform if Company's payment is over fourteen (14) days past-due

3.2 Revenue Share. Shoppable shall provide Company with a share of the commissions that it receives from Retailers for Product sales made via Company Site in accordance with the Services agreed to on the Order Form. Revenue share payments shall be made on a quarterly basis.

 

4. Term and Termination

4.1 Term. This Agreement shall begin upon the date Company accepts it and continues until all subscriptions hereunder have expired or have been terminated. The term of each subscription shall be as specified in the Order Form and as selected by Company at time of registration. This Agreement shall automatically renew for consecutive terms equal to the initial term unless either party gives the other party notice of its intention not to renew at least 30 days prior to the expiration of the then current term (each, a “Renewal Term,” and collectively with the Initial Term, the “Term”). The subscription pricing during any automatic renewal term will be the same as that during the immediately prior term unless Shoppable has provided Company with advance notice of a pricing increase at least 30 days before the expiration of the then current term.

4.2 Termination. This Agreement may be terminated at any time by either party upon written notice to the other party, if the other party is in material breach of this Agreement and fails to cure such breach within thirty (30) days after it receives written notice thereof from such party.

4.3 Effect of Termination. Upon any expiration or termination of this Agreement for any reason, Company shall require all Company Sites to immediately cease using the Shoppable Platform and Shoppable Marks and remove all Product references from all portions of the Company Sites. The following sections shall survive the expiration or termination of this Agreement: Sections 1, 5, 6, 7.4, 8, 9, 10 and this Section.

 

5. Intellectual Property

5.1 Shoppable Property. Except for the limited licenses specifically granted in Section 2 above, Shoppable retains all right, title and interest in and to the Shoppable Platform, the Product Catalog, and the Shoppable Marks, together with all intellectual property rights embodied in the foregoing. As between the parties, Shoppable owns all User Data.

5.2 Company Property. As between the parties, and subject to Shoppable’s rights as set forth in Section 5.1 above, Company retains all right, title and interest in and to the Company Sites, all underlying code and technology, and all content contained therein, together with all intellectual property rights embodied in any of the foregoing.

 

6. Confidentiality. The parties acknowledge and agree that each party has and shall have access to certain Confidential Information of the other party. “Confidential Information” means all information provided by a party (the “Discloser”) to the other party (the “Recipient”) hereunder that is (i) proprietary and/or non-public information related to the past, present and future business activities of the Discloser, its subsidiaries, and its affiliates; (ii) information relating to the Discloser’s business plans, pricing, financial information, methods, processes, code, data, information technology, network designs, passwords, and sign-on codes; (iii) the terms of this Agreement; and (iv) any other information that is designated as confidential by the Discloser or that should be reasonably understood to be confidential. Without limiting the foregoing, Shoppable’s Confidential Information includes the Shoppable Platform, the Product Catalog and all portions thereof, and the User Data. Recipient shall not use the Discloser’s Confidential Information except as permitted under this Agreement, and shall not disclose, distribute, or disseminate the Confidential Information to any third party. Confidential Information does not include (a) information that has become publicly known through no breach by Recipient of these confidentiality obligations; (b) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; or (c) information required to be disclosed by law. It is understood and agreed by the parties that money damages alone may not constitute a sufficient remedy for any breach by Recipient of its confidentiality obligations hereunder and that the Discloser shall be entitled to seek specific performance and injunctive relief, without the necessity of posting a bond, cash or otherwise, as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies available to Recipient for a breach of this section by the Discloser, but shall be in addition to other remedies available to Discloser at law or in equity.

 

7. Warranties and Warranty Disclaimers.

7.1 Mutual Warranty. Each party warrants to the other party that it has all authority and rights necessary in order to enter into this Agreement and perform its obligations hereunder.

7.2 Shoppable Warranty. Shoppable represents and warrants that the Shoppable Platform shall perform in accordance with the service levels set forth in Exhibit A.

7.3 Company Warranty. Company represents and warrants that the operation of the Company Sites and use of the User Data as permitted herein shall at all times be compliant with all applicable laws, rules and regulations.

7.4 DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 7, EACH PARTY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE Shoppable PLATFORM AND PRODUCT CATALOG ARE PROVIDED TO COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS. RETAILER COMMISSIONS AND PRODUCT CATALOG DATA FLUCTUATE AND ARE DETERMINED BY THE RETAILERS IN THEIR SOLE DISCRETION.

 

COMPANY ACKNOWLEDGES AND AGREES THAT SHOPPABLE MERELY PROVIDES A PLATFORM FOR RETAILERS AND USERS TO COMPLETE TRANSACTIONS INVOLVING THE PRODUCTS VIA THE COMPANY SITES, AND THAT SHOPPABLE IS NOT INVOLVED IN THE ACTUAL TRANSACTION BETWEEN THE RETAILERS AND THE USERS AND IS NOT THE AGENT OF AND HAS NO AUTHORITY FOR EITHER THE RETAILER OR THE USER FOR ANY PURPOSE WHATSOEVER. SHOPPABLE DOES NOT MAKE ANY WARRAANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND SHALL NOT ASSUME ANY LIABILITY WITH RESPECT TO, ANY RETAILER, PRODUCT OR TRANSACTION MADE USING THE SHOPPABLE PLATFORM.

 

8. Indemnification.

8.1 Indemnity by Shoppable. Shoppable shall indemnify, defend and hold Company, its affiliates and its and their officers, directors, employees and agents harmless from and against any and all losses, damages and liabilities (including reasonable attorneys’ fees) (collectively, “Losses”) in connection with any third party claim alleging that the Shoppable Platform or any portion of the Product Catalog infringes or misappropriates any third party intellectual property right.

8.2 Indemnity by Company. Company shall indemnify, defend and hold Shoppable, its affiliates and its and their officers, directors, employees and agents harmless from and against any and all Losses in connection with any third party claim arising out of (i) any Company Site, or (ii) Company’s or any of its affiliates’ use of the User Data, except to the extent, in either case, such claim is covered by Shoppable’s indemnity obligations as set forth in Section 8.1 above.

8.3 Procedure. The party seeking indemnification under this Section (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) in writing of any claim, suit or proceeding for which the Indemnifying Party may have obligations under this Section; provided, however, that any failure of the Indemnified Party to provide such notice shall excuse the Indemnifying Party of its obligations hereunder only to the extent it is materially prejudiced thereby. The Indemnified Party shall reasonably cooperate with Indemnifying Party with regard to the defense of any claim, proceeding, suit or threatened suit. The Indemnifying Party shall have full control of any such claim, proceeding or suit and the authority to settle or otherwise dispose of any suit or threatened suit. In no event, however, may the Indemnifying Party agree to any settlement of any claim, suit or proceeding for which it has agreed to provide indemnification under this Agreement if such settlement would impose any liability or obligation upon the Indemnified Party, without the Indemnified Party’s prior, written consent.

 

9. Limitation of Liability. EXCEPT IN THE EVENT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SHOPPABLE’S MAXIMUM, AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF CAUSE OR THEORY OF RECOVERY, EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO SHOPPABLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.

 

10. Miscellaneous.

10.1 Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Any lawsuit arising out of or related to this Agreement must be brought in the state or federal courts located in the State of New York. Each party hereby consents to the exclusive personal jurisdiction of such courts for all purposes.

10.2 Force Majeure. If the performance of this Agreement or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident; strikes or labor disputes; inability to procure parts, supplies or power, war or other violence; any order, proclamation, regulation, ordinance, demand or requirement of any governmental agency; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall resume performance hereunder with dispatch whenever such causes are removed.

10.3 Independent Contractors. This Agreement does not make either party the employee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. Each party is acting as an independent contractor.

10.4 Assignment. Company shall not assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of Shoppable, which shall not be unreasonably withheld. Any prohibited assignment shall be null and void.

10.5 Notice. Notices permitted or required to be given hereunder shall be deemed sufficient if given by registered or certified mail, postage prepaid, return receipt requested, by private courier service, or by facsimile addressed to the respective addresses of the parties set forth above or at such other addresses as the respective parties may designate by like notice from time to time. Notices so given shall be effective upon (a) receipt by the party to which notice is given, or (b) on the fifth (5th) day following mailing, whichever occurs first.

10.6 Unenforceable Provisions. If any provision of this Agreement is found unenforceable under any of the laws or regulations applicable thereto, such provision terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other provisions of this Agreement.

10.7 Headings. The heading and captions used in this Agreement are for the sole purpose of convenience and reference and in no way define, limit or prescribe the scope or intent of this Agreement or any part thereof.

10.8 Integration. This Agreement constitutes the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes all proposals and agreements, oral or written, and all negotiations, conversations, discussions heretofore between the parties. This Agreement may not be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by an authorized representative of each party.

 

The Terms of Use governing use of the Shoppable website, which can be accessed here (Terms of use), are hereby incorporated by reference in their entirety. In the event of a conflict between any provision of the Terms of Use and any provision of this Agreement, this Agreement shall control. Both parties agree that this Agreement, together with the Terms of Use and Company’s registration page, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Shoppable reserves the right to modify this Agreement from time to time provided that email or written notification is provided to Retailer. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever. A printed version of this Agreement, the Terms of Use, and the registration page shall be admissible in judicial or administrative proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

 

EXHIBIT A

Service Levels

1. At the core, Shoppable relies on the SLA of its hosting providers, Amazon Web Services and Microsoft Azure. 

 The Amazon Web Services and Microsoft Azure SLAs can be viewed on their websites. 

2. At the application level, Shoppable provides the following assurances:

Except for scheduled maintenance, there should be no more than four (4) hours of downtime monthly. If Shoppable does not resolve an incident causing unavailability of the services within four (4) hours, Shoppable will provide Company with a credit of 5% of the monthly license fee.

Software application services which are operated by Shoppable will have at least 99 % uptime, as measured monthly, excluding scheduled maintenance.

In addition, the application service operated by Shoppable will not experience more than two outages (unscheduled maintenance) of more than two hours in any month. Scheduled maintenance will be no greater than four hours bi-weekly and will happen at a regularly scheduled time during off-peak periods. When necessary, scheduled maintenance will occur every two weeks between 2AM and 6AM Eastern Time or 10PM and 2AM Pacific Time.

 

EXHIBIT B

Specifications

The Publisher Portal will be used by the Company to select products from the Product Catalog that can be displayed for sale on the Company Website, in accordance with the terms of the Agreement.

Company may elect to include one or multiple Retailers within the Product Catalog. Shoppable reserves the right to add or remove merchants from the Product Catalog from time-to-time.

Company will design, build and maintain the pages where the frames where will be located.

Company will handle the design of the product frames that appear on the Company Website as described in the Shoppable Platform documentation.

Company will set up a secure checkout page on the Company Website or on Shoppable’s website as specified in the Services and agreed upon in the Order Form. The checkout component is not “skinnable” by the Company unless the Company has signed up for an enterprise-level account.

Company will integrate the shopping bag component into the Company Website as described in the Shoppable product documentation. The Company may also choose to “skin” the shopping bag as described in the Shoppable Platform documentation.

All orders will be processed by the applicable retailer.  Company can not be merchant of record or use Company’s credit card to place orders. Order fulfillment and customer service will be provided to the User by the Retailer upon receiving the User’s order via the Shoppable Platform.

Company will be granted an API Token from the Publisher Portal that will be used in the integration of the product frames, shopping bag and multi-retailer checkout process.

Shoppable will operate, host and monitor the Shoppable Platform, in accordance with the terms of Exhibit A.

The Shoppable Platform consists of the following two Core Parts:

1. Shoppable® Multi-Retailer Checkout (one checkout experience for more than one retailer);

2. Publisher Portal with access to basic reporting and a Product Catalog from which Clients can select Products to make available on the Client Website

 

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