Last updated: April 9, 2018
THIS AGREEMENT is made and entered into as of this ________ day of _______________, 20___, by and between URBIQQ, LLC ("URBIQQ"), a limited liability company organized under Virginia law, with its principal office at 10332 Main Street, Suite 147, Fairfax, VA 22030 and ________________________ with its principal office at _______________________________ ("Seller").
Whereas , URBIQQ operates an online marketplace that offers consumers the opportunity to purchase goods, and from time to time the parties may contract with one another for Seller to offer goods through URBIQQ's online marketplace, in exchange for which URBIQQ will retain a commission from all sales. The specific charges and terms of each annual contract shall be set forth in an individual Scope of Work (each an "SOW"), executed from time to time by the parties and attached hereto. In connection with each SOW, Seller will have entered into an agreement for services as described in this agreement and in the SOW (the "Contract"), with URBIQQ for the performance of the services described in this agreement and in the SOW.
Now, Therefore , in consideration of the foregoing and of the mutual promises contained herein, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:
a) URBIQQ will provide an online marketplace that will offer consumers an opportunity to purchase from Seller.
b) Seller will be responsible for shipping any goods sold through URBIQQ's online marketplace to the end consumer, no later than two business days after the sale is made.
c) URBIQQ will receive requests for refund or exchange through its online marketplace. URBIQQ will timely transmit such requests to Seller. Seller will process said refund or exchange, in keeping with the terms of the original sale, within two business days of URBIQQ notifying or attempting to notify Seller of the request for refund or exchange.
2. Sales Procedure
a) Seller will post only accurate representations regarding the price, quality, quantity available for sale, and condition of all goods sold through URBIQQ's website. Sellers will specifically be responsible for ensuring the entry of the correct prices and the quantity on-hand into URBIQQ's marketplace software.
b.) Seller agrees that it will not use the protected intellectual property of any individual, organization, or company. Protected intellectual property shall include words, descriptions, pictures, images, or any other medium used to sell or advertise goods, particularly where there exists the possibility that said words, descriptions, pictures, images, or other medium are copywritten, trademarked, or otherwise subject to any form of intellectual property protections. Seller will immediately remove or cause to be removed from URBIQQ any words, descriptions, pictures, or images that violate this clause.
c) Under no circumstances will Seller engage in the sale of any item or items that are prohibited by federal law to be sold. Additionally, Seller agrees that Seller will not ship any good or goods into a state, territory, county, city, town, or other type of area or municipality where the seller knows or should have known that said goods were prohibited by law. At no time will Seller offer any good or goods for sale that may violate United States import/export controls.
d) URBIQQ will retain a percentage of all sales from Seller. This percentage will be specified on the annual SOW and will be in accordance with guidelines that URBIQQ shall make known to the seller on an annual basis and that will be explicitly written into the applicable SOW.
e) At no time will Seller communicate or attempt to communicate directly or indirectly with a purchaser of goods. Seller will not utilize any type of print, verbal/audio, video, electronic, or any other medium to communicate or to attempt to communicate either directly or indirectly with a purchaser of goods. Specifically excluded from this prohibition is any communication by Seller, that bears URBIQQ's marketing and/or branding, does not identify Seller, and is distributed at URBIQQ's request. Examples of specifically allowed communications would include URBIQQ invoices, "Thank You Letters," and Return Information Forms.
f) URBIQQ shall withhold monies adequate to pay state sales taxes from any purchase that is shipped to a state in which URBIQQ has nexus or has otherwise committed to remitting sales taxes. URBIQQ shall be solely responsible for the payment of sales taxes in states where URBIQQ has nexus or has committed to remitting sales taxes and shall also ensure the timely filing of all required forms. Any penalties relating to the payment or filing of state sales taxes shall be the sole responsibility of URBIQQ unless URBIQQ's error or omission was caused in whole or in part by an act, error, or omission of the Seller, in which case the Seller shall reimburse URBIQQ for the full amount or URBIQQ's loss or expenses, to include any costs of defense.
g) Seller agrees that Seller has read, is familiar with, and agrees to be bound by the URBIQQ Community Guidelines as of the signing of this contract by Seller. Seller further agrees that upon notification by URBIQQ of an update to the URBIQQ Community Guidelines that Seller will review all of the changes as soon as practical.
3. Project Management. URBIQQ may designate who will review the items and advertisements of all Sellers on and through URBIQQ. URBIQQ will inform Seller of a decision to remove content from URBIQQ's online marketplace including items for sale and related pictures, videos, and descriptions, and any advertisements. Seller agrees that any decisions made by URBIQQ, its personnel, or any contractor or agent acting on URBIQQ's behalf regarding the removal of content from URBIQQ's online marketplace will be binding, enforceable, and final absent conclusive proof that the grounds for removal were mistaken.
4. License and Ownership
a) For purposes of this Agreement (i) "Technology" means works of authorship, materials, information and other intellectual property; (ii) "URBIQQ Technology" means all Technology created prior to or independently of the selling of goods, or created by URBIQQ or any employee or contractor thereto, as a tool for the use of URBIQQ, plus any modifications or enhancements thereto and derivative works based thereon.
b) URBIQQ & Seller agree that URBIQQ's software is proprietary in nature and is the sole and exclusive property of URBIQQ. Seller hereby disclaims any right to or license in URBIQQ's software. Seller's disclaimer extends to any process, program, or system utilized by URBIQQ. Additionally, Seller hereby assigns to URBIQQ any right or claim of property colorable under law in any proprietary intellectual property owned, possessed, or utilized by URBIQQ. Seller and its licensees retain all rights in and to all non-URBIQQ Technology. The foregoing assignment and license grants do not apply to any Technology (including any modifications or enhancements thereto or derivative works based thereon) that is subject to a separate license agreement between URBIQQ or Seller and a third party.
a) To the extent that, in connection with this Agreement, either party (each, the "receiving party") comes into possession of any trade secrets or other proprietary or confidential information of the other party or third parties to which it has an obligation of confidentiality (the "disclosing party"), it will not disclose such information to any third party without the disclosing party's consent. In addition, the disclosing party hereby consents to the receiving party disclosing such information (i) to contractors providing administrative, infrastructure, and other support services to the receiving party and subcontractors providing services in connection with the routine business functions or the applicable SOW, in each case, whether located within or outside of the United States, provided that such contractors and subcontractors have agreed to be bound by confidentiality obligations similar to those in this Section 6, (ii) as may be required by law or regulation, or to respond to government inquiries, or in accordance with applicable professional standards or rules, or in connection with litigation pertaining to the selling of goods, an SOW, or this Agreement, or (iii) to the extent such information (A) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure in breach hereof, (B) becomes available to the receiving party on a nonconfidential basis from a source other than the disclosing party which the receiving party believes is not prohibited from disclosing such information to the receiving party by obligation to the disclosing party, (C) is known by the receiving party prior to its receipt from the disclosing party without any obligation of confidentiality with respect thereto, or (D) is developed by the receiving party independent of any disclosures of such information made by the disclosing party to the receiving party. The receiving party shall carry out its obligations under this Section 6 using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care.
b) In addition, Seller shall comply with each provision in the Contract that relates to confidential or proprietary information.
a) This Agreement will start on the date written above, and will continue until terminated. Either party may terminate this agreement at any time by giving thirty (30) days written notice to the other party. URBIQQ may terminate this contract immediately and at any time for cause. For significant breaches of this agreement, wherein URBIQQ is willing to continue the business relationship with Seller, URBIQQ shall have the option to give written notice to Seller regarding the breach. After receiving the written notice, Seller shall have three (3) business days in which to cure the breach. Should Seller fail to cure the breach, URBIQQ may terminate this contract by giving written notice. If terminated, this Agreement shall continue to apply to all SOWs that are in existence at the time of such termination and under which the services contemplated in this agreement have not been completed. URBIQQ may terminate an SOW for convenience at any time by giving thirty (30) days written notice to Seller.
b) Either party may terminate an SOW for a material breach of this Agreement (as it relates to such SOW) or such SOW by the other party by giving the breaching party thirty (30) days written notice; provided that the breaching party shall have the right to cure the breach within the notice period. To the extent either party terminates any individual SOW pursuant to this section, this Agreement shall continue to apply to all SOWs that have not been terminated.
c) Either party may terminate an SOW or performance of any part thereof upon written notice to the other party if such terminating party reasonably determines that the performance of any part herein would be in conflict with law or professional rules.
d) Upon any termination of an SOW, Seller will provide any transition assistance that may be reasonably requested by URBIQQ during the notice period. The obligations of each party which have been incurred prior to the effective date of termination shall continue in full force and effect notwithstanding the expiration or termination of the SOW. In the event of termination, URBIQQ shall pay Seller for all sales proceeds as of the termination date.
a) Seller (the "Indemnitor") shall indemnify and hold URBIQQ, its respective subsidiaries, and their respective personnel (collectively the "Indemnitee"), harmless from any and all Claims (as defined in Section 9) arising out of or relating to any claim that any intellectual property of Indemnitor provided by Indemnitor to Indemnitee in connection with the sales set forth in either this agreement or an SOW ("Goods") or any portion thereof infringes upon or violates any patent, copyright, trade secret, or other intellectual property right of any third party, except to the extent that such infringement or unauthorized use arises from or could have been avoided but for: (1) the modification of Goods by the Indemnitee or use thereof in a manner not contemplated by this Agreement, (2) the failure of the Indemnitee to use any corrections or modifications made available by the Indemnitor, or (3) information, materials, instructions or specifications provided by or on behalf of the Indemnitee. If a claim of infringement is made with respect to any Goods, or any portion thereof, the Indemnitor, at its option and expense, shall have the right to (x) procure for the Indemnitee the continued use or sale of such Goods, (y) replace such Goods with non-infringing items, or (z) modify such Good or Goods so they become non-infringing; provided that, if (y) or (z) is the option chosen, the replacement or modified Goods are capable of performing substantially the same function. The foregoing provisions of this paragraph constitute the sole and exclusive remedy of the Indemnitee, and the sole and exclusive obligation of the Indemnitor, relating to a claim that any Goods or any portion thereof infringes upon or violates any patent, copyright or other intellectual property right of a third party.
b) As a condition to the foregoing indemnity obligations, the Indemnitee shall provide the Indemnitor with prompt notice of any claim for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with the Indemnitor in connection with any such claim. The Indemnitor shall be entitled to control the handling of any such claim and to defend or settle any such claim, in its sole discretion, with counsel of its own choosing.
9. Limitation on Damages and Actions .
a) Each party agrees that the other party, its affiliates, agents and subcontractors, shall not be liable for any actions, damages, claims, liabilities, costs, expenses, or losses ("Claims") in any way arising out of or relating to the Sales performed under an SOW hereunder for an aggregate amount in excess of the fees paid and payable under the applicable SOW. For purposes of this Section, "payable" means monies retained by URBIQQ that are due to Seller at the next scheduled payment date, minus URBIQQ's commission and any other deductions agreed upon under either this agreement or an applicable SOW. Each party further agrees that the respective partners, principals, members or other personnel of the other party shall not be personally liable in any amount and to any extent for Claims in any way arising out of or relating to the Services performed under an SOW hereunder. In no event shall either party, its affiliates, agents or subcontractors, or any of their partners, principals, members or other personnel be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits and opportunity costs). The limitations set forth in this section shall not apply to actions, damages, claims, liabilities, costs, expenses or losses (A) for which a party has an obligation to indemnify the other party hereunder; (B) any bodily injury, death or damage to real or tangible personal property, to the extent directly and proximately caused by the gross negligence (as such term is defined below) or willful misconduct of that party or its personnel while engaged in the selling of goods; provided, however, that if there is also fault on the part of the other party or any entity or individual indemnified hereunder or any entity or individual acting on the other party's behalf, the foregoing indemnification shall be on a comparative fault basis; (C) resulting from a party's breach of its confidentiality obligations hereunder, or (D) to the extent resulting from the recklessness, bad faith or willful misconduct of the other party, its subcontractors, or their respective personnel. Under no event shall URBIQQ be liable for any claim or demand against the Seller by any third party. In circumstances where all or any portion of the provisions of this Section 9(a) are judicially determined to be unavailable, the aggregate liability of each party, its subcontractors and their respective personnel for any Claim shall not exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claim.
b) No action, regardless of form, arising under or relating to this Agreement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment of any sales proceeds due may be brought by Seller not later than one year following the date of the last payment due to such party of any invoice hereunder.
10. Insurance Coverage. At URBIQQ's request and prior to commencement of work under any SOW, Seller will forward to URBIQQ a certificate of insurance verifying that Seller maintains errors and omissions insurance coverage, professional liability insurance coverage, or commercial umbrella coverage in an amount that URBIQQ deems sufficient to protect URBIQQ from loss.
11. Non-Exclusivity. This Agreement shall not preclude or limit in any way (i) the right of Seller to sell goods in any other medium or forum (i.e., Amazon, Wayfair, etc.) as Seller in its sole discretion deems appropriate, or (ii) the right of Seller to develop for itself or for others services, materials, or processes that are competitive with those produced as a result of the Sales provided hereunder. Seller agrees that Seller will not offer the same or similar products in any other medium or forum at a lower price or with more favorable terms (i.e., free shipping) than Seller offers through URBIQQ. Seller may not use URBIQQ's name for any marketing activity without prior written approval from URBIQQ's Managing Member. URBIQQ shall obtain Seller's consent prior to using the name of the Seller or its personnel for any marketing activity.
12. Non-Solicitation. During the term of each SOW under this Agreement and for a period of one (1) year thereafter, neither party shall directly or indirectly employ, solicit or retain the services of the personnel of the other party, who are involved in the receipt or provision of the Sales under such SOW, for its own benefit or the benefit of another. A party shall not be in breach of this section if those responsible for the solicitation, hiring or retention of the other party's personnel were not aware of the prohibition contained in this section; however, personnel of both parties engaged in the provision of sales hereunder shall be presumed to know of the prohibition. In the event a party breaches this provision, the breaching party shall be liable to the aggrieved party for an amount equal to thirty percent (30%) of the annual base compensation of the relevant personnel in his/her new position. Although such payment shall be the aggrieved party's exclusive means of monetary recovery from the breaching party for breach of this provision, such a breach shall be considered a material breach of this Agreement and the aggrieved party's remedies of termination, injunction and damages shall be cumulative.
13. Arbitration Procedures. As a material part of the Agreement, URBIQQ and the Seller agree that this Dispute Resolution Provision sets forth the dispute resolution process and procedures applicable to the resolution of disputes ("Disputes") and shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence), or otherwise. All Disputes shall be settled by confidential and binding arbitration to be held in Fairfax County, Virginia. The arbitration shall be solely between the parties and shall be conducted in accordance with JAMS' Comprehensive Arbitration Rules and Procedures (effective March 26, 2007), except to the extent modified by this Dispute Resolution Provision (the "Rules"). By agreeing to submit all such disputes, claims and controversies to binding arbitration, URBIQQ and the Seller expressly waive any rights to have such matters heard or tried in court before a judge or jury or in another tribunal.
The arbitration shall be conducted before a panel of three arbitrators who must be neutral and independent. Each of the Seller and URBIQQ shall designate one such arbitrator and the two party-designated arbitrators shall jointly select the third. No arbitrator may serve on the panel unless he or she has agreed in writing to enforce the terms of the engagement letter (including its appendices) to which this Dispute Resolution Provision is attached and to abide by the terms of this Dispute Resolution Provision. Except with respect to the interpretation and enforcement of these arbitration procedures (which shall be governed by the Federal Arbitration Act), the arbitrators shall apply the laws of the Commonwealth of Virginia (without giving effect to its choice of law principles) in connection with the Dispute. The arbitrators shall have no power to award punitive, exemplary or other damages not based on a party's actual damages (and the parties expressly waive their right to receive such damages). The arbitrators may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition. No discovery shall be permitted in connection with the arbitration, except to the extent that it is expressly authorized by the arbitrators upon a showing of substantial need by the party seeking discovery.
Unless the parties agree otherwise, the parties, the arbitrators and JAMS shall treat the proceedings, any related discovery and the decisions of the arbitrators, as confidential. The parties may disclose the existence, content, or results of the arbitration in accordance with the Rules, applicable professional standards and regulatory requirements. To the extent possible, issues of confidentiality shall be raised with and resolved by the arbitrators. Before making any disclosure permitted by the Rules, a party shall give written notice to all other parties and afford such parties a reasonable opportunity to protect their interests. Further, judgment on the arbitrators' award may be entered in any court having jurisdiction.
Each party shall bear its own costs in the arbitration; however, the parties shall share the fees and expenses of the arbitrators and all arbitration case management fees equally.
14. Other Terms
a) Force Majeure. Neither party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate of the other party (including, without limitation, entities or individuals under its control, or their respective officers, directors, personnel and agents), acts or omissions or the failure to cooperate by any third party, fire, epidemic or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
b) Independent Contractor. It is understood and agreed that Seller is requesting to offer its goods by and through URBIQQ. There is no employer/employee relationship between the parties. Seller is a licensee of URBIQQ's services. Should a court of competent jurisdiction determine that Seller is more than a licensee, then Seller asserts and agrees that at most seller is an independent contractor that is fully subject to the terms and conditions of this agreement. As such, neither party is, nor will be considered to be, an agent or representative of the other. The personnel of one party will not be deemed to be personnel of the other party. Neither party will act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other. URBIQQ shall not be responsible for the payment of worker's compensation, disability benefits, unemployment insurance, and any other employee benefit, including, but not limited to, 401(k), medical, dental and life insurance, vacation, sick days and holiday, or for withholding income taxes and social security for any employee, agent, or contractor of Seller. If, contrary to the intent of the parties, it is determined that an employment relationship exists between Seller (including its employees, agents and contractors) and URBIQQ, Seller, for itself and on behalf of any and all individuals and entities under Seller's direct or indirect control, hereby irrevocably waives the right to participate in and earn or become entitled to any and all employee benefits of URBIQQ.
c) Survival and Interpretation. All sections herein relating to payment, license and ownership, confidentiality, warranties, limitations of warranties, indemnification, limitations on damages and actions, non-exclusivity, non-solicitation, waiver and waiver of jury trial shall survive the termination of this Agreement. The provisions of Sections 9 and 13 shall apply to the fullest extent of the law, whether in contract, statute, tort (such as gross negligence) or otherwise, notwithstanding the failure of the essential purpose of any remedy.
d) Applicable Laws. Seller will abide by all applicable laws, rules and regulations in connection with its advertising and selling of goods by and through URBIQQ.
e) Nondiscrimination. During the performance of this Agreement, Seller agrees to comply with all federal, state, and local laws respecting discrimination in employment and non-segregation of facilities including, but not limited to, requirements set out at 41 CFR 60-1.4, 60-250.4, 60-300.5, 60-741.4, and 29 C.F.R. part 470, which are incorporated into this Agreement by reference, if applicable.
f) Notices. Whenever under this Agreement one party is required or permitted to give notice to the other, such notice will be in writing and deemed given upon the earlier of delivery or five calendar days after such notice is mailed by registered or certified United States mail, return receipt requested, postage prepaid, and addressed to the addressee at the address stated in the applicable SOW. Either party may change its address for notice by giving the other party advance written notice of the new address in conformity with the foregoing and the date upon which such new address will become effective.
g) Assignment. Except as provided below, neither party may assign, transfer or delegate any of the rights or obligations (including interests or claims) relating to this Agreement or any SOW without the prior written consent of the other party. Seller may, upon notice to URBIQQ, subcontract or delegate its obligations and responsibilities hereunder to its affiliates; provided, however, that Seller shall not be relieved of its obligations hereunder. Notwithstanding the foregoing, either party may assign this Agreement or any SOW, without the consent of the other party, to an entity that has acquired all or substantially all of the assigning party's assets as successor to the assigning party's business.
h) Waiver. No delay or omission by any party in enforcing any of its rights or remedies hereunder will impair such right or remedy or be deemed to be a waiver thereof. No waiver of any right or remedy hereunder with respect to any occurrence or event on one occasion will be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion. No amendment or waiver will be valid unless in writing and signed by both parties.
i) Entire Agreement. This Agreement, including each SOW, and its Exhibits, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other oral or written representations, understandings or agreements relating to the subject matter hereof.
j) Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia, without giving effect to the choice of law principles thereof.
k) Severability. If any provision of this Agreement is declared or found by a court of competent jurisdiction to be illegal, unenforceable, or void, then such provision will be null and void, but each other provision hereof not so affected will be enforced to the full extent permitted by applicable law.
l) Compliance with Anticorruption Laws. Seller represents and warrants that, in connection with this Agreement, Seller and any person or entity acting on its behalf has complied and will continue to comply with the U. S. Foreign Corrupt Practices Act (15 U.S.C. Section 78dd-1, et. seq.) as amended ("FCPA"), and all other applicable anti-corruption laws, rules and regulations. As a general description, the FCPA prohibits corrupt payments, including offering or promising money, gifts or anything of value, to foreign officials for the purpose of obtaining or keeping business. Seller shall notify URBIQQ as soon as reasonably practicable of any change in circumstances that renders these representations or warranties inaccurate. In addition to and without prejudicing any other rights or remedies available to URBIQQ, URBIQQ may (i) terminate this Agreement immediately upon written notice to Seller and (ii) withhold any amounts payable to Seller hereunder in the event of (x) Seller's breach of this paragraph or (y) any governmental inquiry or investigation relating to a potential violation of any anti-corruption law, rules or regulations by or on behalf of Seller.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and entered into by their respective duly authorized representatives as of the date first set forth above.