SHOPDOT SUPPLIER AGREEMENT

SHOPDOT SUPPLIER AGREEMENT

Last Updated: April 6, 2024

THIS SUPPLIER AGREEMENT (THE “AGREEMENT”) GOVERNS YOUR USE OF THE SHOPDOT, INC. (“SHOPDOT”) SERVICES IDENTIFIED IN THE ORDER FORM THAT REFERENCE THIS AGREEMENT, WHICH ENABLE YOU AS A SUPPLIER OF PRODUCTS, GOODS AND OTHER MECHANDISE VIA THE SHOPDOT PLATFORM (A “SUPPLIER”) TO OFFER AND SELL SUCH PRODUCTS, GOODS AND MERCHANDISE THROUGH THE BRANDED BRICK-AND-MORTAR AND ONLINE STORES OF THIRD-PARTY RETAILERS (EACH, A “RETAILER”) USING THE SHOPDOT PLATFORM. BY CLICKING THE “ACCEPT” BUTTON OR BY USING OR ACCESSING THE SERVICES, YOU AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT AND, IF YOU ARE ACCESSING OR USING THE SERVICES ON BEHALF OF AN ENTITY, REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY IDENTIFIED IN THE ACCOUNT REGISTRATION PROCESS. THE TERMS “YOU” AND “SUPPLIER” SHALL BE DEEMED TO  REFER TO SUCH ENTITY, IF ANY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT, AND MAY NOT, ACCESS OR USE THE SERVICES.  

  1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section in which they are first used.
    1. “Anonymized Data” means Supplier Data from which Supplier-specific characteristics have been removed, and/or that is combined with other data, in a manner that renders it generic and not attributable to Supplier.  
    2. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Supplier or any Authorized Users to access Services.
    3. “Authorized User” means each of Supplier’s employees, agents, and independent contractors who are authorized to access ShopDot Solution pursuant to Supplier’s rights under this Agreement.
    4. “Brand Catalog” means a Supplier’s catalog of Merchandise to be made available for sale on a Retailer’s Store via the ShopDot Solution.
    5. “Customer” means the end user who accesses Retailers’ Stores and purchases Merchandise. 
    6. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
    7. “Merchandise” means any of Supplier’s merchandise, products, goods or other items to be made available for sale on a Retailer’s Store via the ShopDot Solution.
    8. “Order Form” means a physical or electronic order form, pricing page or service registration page that is agreed to by both parties identifying the services to be made available by ShopDot pursuant to this Agreement.
    9. “Services” means any services provided by ShopDot to Supplier under this Agreement as set forth in an Order Form, including, but not limited to, provision of ShopDot Solution, website, and/or professional services.
    10. “ShopDot Solution” means a ShopDot software-as-a-service application identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface.
    11. “Store” means a Retailer’s branded online and/or brick-and-mortar store.
    12. “Supplier Data” means any content and information provided or submitted by, or on behalf of, Supplier or its Authorized Users for use with the Services, including without limitation product descriptions, product images, and Supplier uploaded call logs and contact information.
  1. SHOPDOT SERVICES
    1. Generally. The ShopDot Solution enables suppliers to reach a wider audience of potential buyers (i.e., Customers), while also enabling Retailers to sell a broader range of products, including those provided Supplier.  Supplier can integrate its Shopify Stores and other e-commerce stores supported by ShopDot (collectively, “eCommerce Stores”) with ShopDot and choose the Merchandise Supplier is willing to sell through Retailer Stores from its Brand Catalogs.  Retailers may search for and invite Supplier to sell its Merchandise to Customers through their Stores.  Sales made through Retailer Stores will be transmitted to Supplier via the ShopDot Solution, and Supplier is responsible for fulfilling all sales of Merchandise made to Customers through Retailers.  Supplier is responsible for setting prices for applicable items in its Brand Catalogs and establishing a commission percentage of Supplier’s sales through Retailer that will be allocated by ShopDot to such Retailer, less fees, in accordance with Section 4 of this Agreement and the ShopDot Retailer Agreement. For avoidance of doubt, ShopDot is not responsible for setting retail prices or commission rates, and is not responsible for nor a party to any disputes that may arise between Retailer and Supplier regarding such prices or rates.
    2. Registering Your Account.  In order to access certain features of the Services, Supplier may  be required to register an account on the Services for each Authorized User (each an “Account”). In registering accounts on the Services, Supplier agrees to (a) provide true, accurate, current and complete information about each Authorized User as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  Supplier represents that each Authorized User is (i) of legal age to form a binding contract; and (ii) not a person barred from using any of the Services under the laws of the United States, their place of residence, or any other applicable jurisdiction.  Supplier is responsible for all activities that occur under its Authorized Users’ Accounts.  Supplier shall ensure that Authorized Users do not share their Account or password with anyone, and shall notify ShopDot immediately of any unauthorized use of any such password or any other breach of security.  If Supplier provides any information that is untrue, inaccurate, not current or incomplete, or ShopDot has reasonable grounds to suspect that any such information is untrue, inaccurate, not current or incomplete, ShopDot has the right to suspend or terminate the applicable Account and refuse any and all current or future use of Services (or any portion thereof).  Supplier agrees not to create an Account using a false identity or information, or on behalf of someone other than a bona fide Authorized User.  Supplier agrees that it shall not register or maintain more than one Account per Authorized User on each of the Services at any given time.  ShopDot reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  Supplier agrees not to create an Account or use the Services if Supplier or its any of its Authorized Users have been previously removed by ShopDot, or if you have been previously banned from any of the Services.
    3. Support Services. Subject to the terms and conditions of this Agreement and the applicable Order Form, ShopDot will exercise commercially reasonable efforts to (a) provide support for the use of the ShopDot Solution to Supplier, and (b) keep the ShopDot Solution operational and available to Supplier, in each case in accordance with ShopDot’s standard policies and procedures.  
    4. Third Party Service Integrations. ShopDot may enable certain third-party services, including eCommerce Stores, to integrate with the ShopDot Solution (each, a “Third-Party Service”).  Supplier understands that it must maintain its own account with such Third-Party Services (each, a “Third-Party Account”) in order to make use of such integrations, and that the relevant third parties who provide such Third-Party Services (“Third-Party Provider”) are solely responsible for the use and access of such Third-Party Services, including the availability and uptimes related thereto.  Supplier agrees that ShopDot will have no liability to Supplier for any unavailability of any Third-Party Services, or any Third-Party Provider’s decision to discontinue, suspend or terminate any Third-Party Services. Supplier further acknowledges and agrees that certain Third-Party Services may be subject to certain API call and/or capacity limits, and that Supplier shall not use any Third-Party Services in excess of any such call or capacity limits communicated to Supplier. Supplier represents and warrants that it will, and that it has all rights and consents necessary to, provide any Third-Party Account information required by ShopDot.
  2. SHOPDOT SERVICES AND SHOPDOT INTELLECTUAL PROPERTY
    1. License Grant. Subject to the terms and conditions of this Agreement and the applicable Order Form, ShopDot grants to Supplier a revocable, non-exclusive, non-sublicensable (except to Authorized Users), non-transferable (except as permitted under Section 10.5) license for the duration of the Term solely to use the ShopDot Solution for its internal business purposes, including to offer to sell and sell Merchandise on Retailer Stores. Supplier may permit any Authorized Users to access and use the features and functions of ShopDot Solution as contemplated by this Agreement.  
    2. Restrictions. Supplier will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Services, except as expressly allowed herein; (b) modify, adapt, alter or translate the Services; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (e) interfere in any manner with the operation of the Services or the hardware and network used to operate the Services; (f) modify, copy or make derivative works based on any part of the Services; (g) access or use the Services to build a similar or competitive product or service; (h) attempt to access ShopDot Solution through any unapproved interface; or (i) otherwise use the in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law or this Agreement. 
    3. Ownership. ShopDot Solution, Services and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of ShopDot and its providers. All rights in and to Services not expressly granted to Supplier in this Agreement are reserved by ShopDot and its providers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Supplier regarding Services, or any part thereof.
  3. PAYMENTS; FEES
    1. Payments and Settlements. The ShopDot Solution enables facilitating of payments from Customers on behalf of Supplier for Merchandise sold on or through a particular Retailer’s Stores and the allocation of applicable revenue shares to Retailers (such sales proceeds for Supplier Merchandise, less revenue shares, referred to herein as “Payments”). ShopDot shall process Payments via a third-party payment processor (“Third-Party Payment Processor”) pursuant to these Terms and any applicable Order Form.  ShopDot currently utilizes Priority Technologies Holdings as its Third-Party Payment Processor. By agreeing to this Agreement and/or making Merchandise available via the ShopDot Solution, Supplier agrees to also be bound by the Third-Party Payment Processor’s then-current terms and conditions (accessible here). ShopDot reserves the right to change Third-Party Payment Processors, in its sole discretion at any time, and will notify Supplier in the event of such a change. Supplier’s continued use of the ShopDot Solution following receipt of such notice shall be deemed acceptance of the then-current Third-Party Payment Processor’s terms and conditions. Payments will be settled to Supplier’s eligible Payment Account (as defined below) in accordance with these Terms and any applicable Order Form. 
    2. Appointment of ShopDot as Limited Payments Agent. Supplier hereby appoints ShopDot as its limited payments agent for the sole purpose of receiving, holding, and facilitating settlement of Payments to Supplier for purchases of Merchandise via the ShopDot Solution.  ShopDot, through its Third-Party Payment Processor, will settle Payments that are actually received by ShopDot on behalf of Supplier, less, for avoidance of doubt, any amounts owed to ShopDot and/or Retailer, including Fees (as defined below), revenue shares, and other obligations, as set forth in these Terms and any applicable Order Form. Supplier agrees that a Payment actually received by ShopDot on behalf of Supplier (including without limitation to an account held with or through Third-Party Payment Processor) satisfies Customer’s obligation to pay Supplier, regardless of whether ShopDot or its Third-Party Payment Processor actually settles the agreed upon amount of such Payment to Supplier.  If ShopDot, or the Third-Party Payment Processor, does not settle any such Payments amounts to Supplier, Supplier will have recourse only against ShopDot (or the Third-Party Payment Processor, as applicable) and not Customer, as payment is deemed made by Customer to Supplier upon actual receipt of funds by ShopDot.  In accepting this appointment as Supplier’s limited payments agent, ShopDot assumes no liability for any acts or omission by Customers, and Supplier understands that the obligation of ShopDot and its Third-Party Payment Processor to settle funds to Supplier is subject to and conditional upon the Customer’s actual payment and this Agreement. Payments pending settlement will be held in an account by ShopDot’s Third-Party Payment Processor pending disbursement to Supplier. Supplier agrees that it is not entitled to any interest or other compensation associated with such Payments pending settlement to Supplier, that Supplier has no right to direct any such account holding such Payments, and that Supplier may not assign any interest in the accounts held with or through Third-Party Payment Processor.  
    3. Chargebacks, Disputes, and Holds. Supplier understands that issues or errors may arise in the coordination between Supplier, Retailers, and Customers of fulfilling, shipping, or maintaining inventory for Merchandise. Supplier agrees that ShopDot has no responsibility or liability for such issues and agrees to comply with Sections 5.8, 5.9, and 5.10 below with respect to such coordination. Notwithstanding the foregoing, in the event that ShopDot or its Third-Party Payment Processor receive a chargeback dispute for a Payment processed through the ShopDot Solution, ShopDot will immediately notify Supplier. Supplier agrees, upon such notification, to provide all information requested by ShopDot within three (3) business days in order to address and respond to the chargeback request. If ShopDot determines in its sole discretion that the chargeback request is warranted or otherwise that a refund should be made to Customer, ShopDot shall refund the disputed amount to Customer and retain an amount equal to the refund offsetting future Payments owed to Supplier. In the event that no future Payments are owed to Supplier (or the amount of such Payments is insufficient to offset the amount of the chargeback or refund), Supplier agrees that ShopDot or its Third-Party Payment Processor may initiate a debit or charge to any account or payment method provided by Supplier in connection with the Services (“Payment Account”). Supplier hereby authorizes ShopDot or its Third-Party Payment Processor to debit or charge such Payment Account for all amounts due and payable under this section. Supplier agrees that any chargeback dispute determinations made by ShopDot are final, may not be challenged, and are not grounds for termination of this Agreement. ShopDot reserves the right to place holds on any Payments pending settlement to Supplier while investigating or resolving chargeback disputes. 
    4. Risk Management.  ShopDot reserves the right to require additional information from any Supplier to reduce the risk of fraud, identity theft, money laundering, terrorist financing, violation of trade sanctions, or to otherwise comply with laws and regulations in order to process Payments. ShopDot also reserves the right to manage risks associated with processing Payments and settling funds by placing restrictions or holds on funds when, in ShopDot’s sole discretion, ShopDot deems necessary to comply with law or mitigate fraud or abuse of the Services. Funds may be held in instances of increased risk, such as in the event of repeated complaints about Merchandise, recurring chargeback disputes, incomplete or conflicting information listed in any of Supplier’s or Retailers Accounts, new Suppliers utilizing the ShopDot Solution, or as otherwise directed by the Third-Party Payment Processor or law enforcement authority.
    5. Fees. In consideration for the access rights granted to Supplier and the Services performed by ShopDot under this Agreement, Supplier will pay to ShopDot all fees on its Account pursuant to the terms set forth on the Order Form (the “Fees”). ShopDot may utilize the Third-Party Payment Processor to process the payment of any Fees. ShopDot will accept and process such Fees from Supplier based on the then-current Payment Account information provided by Supplier to ShopDot. By providing ShopDot with such Payment Account information, Supplier agrees that ShopDot, and the Third-Party Payment Processor as applicable, are authorized to invoice and charge Supplier for all Fees due and payable to ShopDot and that no additional notice or consent is required. Supplier authorizes ShopDot to offset Fees (or any other amounts) due to ShopDot under this Agreement against any amount of Payments pending settlement to Supplier under this Agreement. Notwithstanding the foregoing, if any amounts charged to Supplier’s Payment Accounts are rejected, ShopDot will notify Supplier thereof and Supplier will pay the Fees by check or wire transfer within thirty (30) days of the date of such notice. ShopDot reserves the right to modify the Fees payable hereunder upon notice to Supplier. ShopDot reserves the right (in addition to any other rights or remedies ShopDot may have) to discontinue ShopDot Solution and suspend all Authorized Users’ and Supplier’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Supplier will maintain complete, accurate and up-to-date Payment Account, billing, and contact information at all times. Except as expressly set forth herein or in an Order Form, all Fees are fully earned and non-refundable when due. All dollar amounts referred to in this Agreement are in United States Dollars.
    6. Taxes. The Fees and Payments are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, other than taxes based on ShopDot’s income, (“Taxes”) and Supplier will be responsible for payment of all such Taxes and any related penalties and interest, arising from the sale of Merchandise, payment of the Fees, the provision of the Services, or the license of Services to Supplier. Supplier will make all payments of Fees to ShopDot free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to ShopDot will be Supplier’s sole responsibility, and Supplier will provide ShopDot with official receipts issued by the appropriate taxing authority, or such other evidence as ShopDot may reasonably request, to establish that such taxes have been paid. 
    7. Interest. Any amounts not paid to ShopDot when due will bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
    8. Non-Circumvention. Supplier acknowledges that ShopDot has invested a significant amount of time, effort and capital in developing its business, including its relationships with various Retailers.  In addition, Supplier acknowledges that it is the intent and spirit of this Agreement that all payments related to Merchandise sold via the ShopDot Solution be made via the ShopDot Solution.  As such, during the term of this Agreement and for a period of six (6) months thereafter, Supplier will not, directly or indirectly, for itself or anyone else, solicit, contact or provide competitive services or products to any person or entity who was a Retailer or prospective  Retailer, of ShopDot or otherwise interfere with ShopDot’s relationships with such Retailers, or prospective Retailers; provided, that, any contact or communication via the ShopDot Solution to fulfill orders through such solution will not be deemed a breach of the foregoing. In the event of any breach of the foregoing, Supplier, without limiting ShopDot’s other remedies, will pay to ShopDot liquidated damages in an amount equal to the total amounts paid by ShopDot to Supplier during the twelve (12) prior immediately preceding such breach.  The parties agree that the aforesaid remedy is a fair and reasonable determination of the amount of actual damages that would be suffered by ShopDot for a breach of this Section 4.8 at the time this Agreement is entered into, including the relationship of the value of the liquidated damages to the range of harm to the parties.  In the event Supplier fails to pay ShopDot the liquidated damages due within thirty (30) days of written notice by ShopDot, ShopDot may, at its absolute discretion, exercise the right to deduct the sum due as liquidated damages from any Payments due or to become due under this Agreement or any other contracts between the parties.  If the recovery by forfeiture and/or deduction in the manner as provided herein before is not practicable for any reason or if the amount recovered by such means is insufficient to meet the amount due and payable, the full amount of the liquidated damages or the difference thereof shall be treated as a debt due from Supplier to ShopDot recoverable in civil action.  
  4. SUPPLIER DATA, USER DATA, ACCEPTABLE USE AND SUPPLIER RESPONSIBILITIES
    1. License; Ownership; Feedback. Supplier is solely responsible for any and all obligations with respect to the accuracy, completeness, content, quality, timeliness and legality of Supplier Data, and acknowledges that other users of the Services (“Users”) are responsible for the accuracy, completeness, content, quality, timeliness and legality of the content they upload, distribute, post or otherwise make available (collectively, “Make Available”) via the ShopDot Solution (such content of other users, “User Content”).  Supplier will obtain all third-party licenses, consents and permissions needed for ShopDot to use the Supplier Data to provide the Services (which includes the ability of ShopDot to use such Supplier Data to improve the Services) and to exercise all licenses granted by Supplier herein. Supplier grants ShopDot a non-exclusive, worldwide, royalty-free and fully paid license during the Term to use the Supplier Data (a) as necessary for purposes of providing the Services, (b) in order to improve the Services, and (c) generate Anonymized Data.  For clarity, ShopDot owns all Anonymized Data and ShopDot may freely and perpetually use, share, and disclose Anonymized Data, during and after the Term, for commercial uses including e.g., developing aggregate statistical analyses, improving the Service, and sharing with third parties.  Supplier also hereby grants to ShopDot a non-exclusive, sub-licensable, royalty-free, worldwide, perpetual, irrevocable, fully transferable, royalty-free and fully paid right and license to: use or incorporate into the Services any suggestions, ideas, feedback, recommendations or other information provided by Supplier or its Authorized Users with respect to the Services (“Feedback”) and to reproduce, distribute, modify, create derivative works of, publicly perform and display, and sub-license Feedback. For avoidance of doubt, Anonymized Data and Feedback are not Confidential Information of Supplier.  The Supplier Data, and all worldwide Intellectual Property Rights in it, is the exclusive property of Supplier. All rights in and to the Supplier Data not expressly granted to ShopDot in this Agreement are reserved by Supplier.   
    2. Supplier Data Warranty. Supplier represents and warrants that any Supplier Data will not (a) infringe or misappropriate any Intellectual Property Rights; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage ShopDot’s system or data; or (d) otherwise violate the rights of a third party. ShopDot is not obligated to back up any Supplier Data; Supplier is solely responsible for creating backup copies of any Supplier Data at its sole cost and expense. Supplier  agrees that any use of ShopDot Solution contrary to or in violation of the representations and warranties of Supplier  in this Section 5.2 constitutes unauthorized and improper use of ShopDot Solution.
    3. Responsibility for Data and Security. Supplier and its Authorized Users will have access to the Supplier Data and will be responsible for all changes to and/or deletions of Supplier Data and the security of all passwords and other Access Protocols required in order to access ShopDot Solution. Supplier will have the ability to export Supplier Data out of ShopDot Solution and is encouraged to make its own back-ups of the Supplier Data. Supplier will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Supplier Data.  
    4. Data Privacy Addendum. To the extent Supplier Data includes Personal Information derived from California residents or consumers, the terms of ShopDot’s CCPA Addendum shall apply to such Personal Information and be incorporated into the Agreement.
    5. No Obligation to Pre-Screen Content. Supplier acknowledges that ShopDot has no obligation to pre-screen any User Content or Supplier Data, although ShopDot reserves the right in its sole discretion to pre-screen, refuse and remove any such User Content or Supplier Data.  In the event ShopDot pre-screens, refuses or removes any User Content or Supplier Data, Supplier acknowledges that ShopDot will do so for its sole benefit and not any other person.  
    6. Storage.  Unless otherwise agreed to by ShopDot in writing elsewhere, ShopDot has no obligation to store any Supplier Data or User Content. You agree that ShopDot retains the right to create reasonable limits on Supplier’s use and storage of Supplier Data and User Content, such as limits on file size, storage space, processing capacity and similar limits as may be described on the ShopDot Solution.
    7. Acceptable Use Policy. In connection with Supplier’s use of the ShopDot Solution, Supplier agrees that will not: (a) Make Available any Supplier Data that, in ShopDot’s sole discretion, (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, ShopDot personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) Make Available any Supplier Data that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (e) Make Available any Supplier Data that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; (f) intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court; (g) harass any person; or (h) advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
    8. Interactions with Other Users. Supplier is solely responsible for its interactions with other Users and any other parties with whom Supplier interacts; provided, however, that ShopDot reserves the right, but has no obligation, to intercede in any resulting disputes between Supplier and Users.  Supplier agrees that ShopDot will not be responsible for any liability incurred as the result of such interactions.  Supplier hereby releases ShopDot and its successors and assigns from claims, demands, any and all losses, damages, liabilities, rights, and actions of any kind, including personal injuries, death and property damage, that is either directly or indirectly related to or arises from Supplier’s interactions with any other Users.  If Supplier is a California resident, Supplier hereby waives California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
    9. Order Fulfillment and Order Issue Resolution.  As between ShopDot and Supplier, Supplier  is solely responsible for the fulfillment of all orders placed with Retailers with respect to the Merchandise.  Supplier agrees fulfill all orders made through a Retailer’s Store. In addition, Supplier agrees to work in good faith with any applicable Retailer to resolve any disputes and issues with respect to any orders created through the use of the ShopDot Solution, including, without limitation, issues related to insufficient inventory, quality of Merchandise, and incorrect or delayed shipments, and Supplier agrees that ShopDot is not responsible for and will have no liability with respect to any such disputes and issues.
    10. Supplier Indemnification. Supplier will indemnify, defend and hold harmless ShopDot and its officers, directors, employees, consultants and agents (the “ShopDot Indemnitees”) from and against any damages, liabilities, losses, judgments, settlements, costs and expenses (including any attorney’s fees) incurred by any of the ShopDot Indemnitees in connection with or arising from any third-party claims, demands, actions or suits related to: (i) Supplier’s breach or alleged breach of this Agreement; (ii) any disputes between Supplier and any Customers, Retailers, other Users, or other person related to Retailers’ Stores, and/or Merchandise and, without limiting the foregoing, issues related to Supplier’s fulfillment or failure to fulfill any orders; or (iii) any claim that Merchandise or Supplier Data, as applicable, infringe upon, misappropriate or otherwise violate the rights of any third parties, including any Intellectual Property Rights or rights of publicity. 
  5. DISCLAIMERS
    1. General Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS,   AND SHOPDOT MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SHOPDOT DOES NOT WARRANT THAT ANY ERRORS CAN BE CORRECTED, THE SERVICES WILL MEET SUPPLIER’S REQUIREMENTS, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
    2. No Liability for Conduct of Third Parties. SUPPLIER ACKNOWLEDGES AND AGREES THAT SHOPDOT IS NOT LIABLE, AND SUPPLIER AGREES NOT TO SEEK TO HOLD SHOPDOT LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OR CUSTOMERS.
    3. No Liability for Merchandise or Stores. SUPPLIER ACKNOWLEDGES AND AGREES THAT SHOPDOT IS NOT LIABLE, AND SUPPLIER AGREES NOT TO SEEK TO HOLD SHOPDOT LIABLE, FOR THE MERCHANDISE OR STORES OF THIRD PARTIES, INCLUDING ANY DOWNTIME OF STORES OR THE CONTENT OF OR OTHER MERCHANDISE AVAILABLE ON ANY STORES.
  6. LIMITATION OF LIABILITY
    1. Types of Damages. IN NO EVENT WILL SHOPDOT BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SHOPDOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
    2. Amount of Damages. THE MAXIMUM LIABILITY OF SHOPDOT ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF THE FEES PAID OR PAYABLE BY SUPPLIER TO SHOPDOT DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR ONE THOUSAND DOLLARS ($1,000). IN NO EVENT WILL SHOPDOT’S PROVIDERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. 
    3. Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 
  7. CONFIDENTIALITY
    1. Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, and all enhancements and improvements thereto, will be considered Confidential Information of ShopDot.
    2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Supplier) or to those employees who have a need to know (with respect to ShopDot), in each case who have confidentiality obligations no less restrictive than those set forth herein and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence. 
    3. Exceptions. The confidentiality obligations set forth in Section 8.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
  8. TERM AND TERMINATION
    1. Term. This Agreement will begin on the date Supplier accepts it (in accordance with the preamble) and continue in full force and effect, until terminated in accordance with the Agreement (the “Term”). 
    2. Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than five (5) days after receipt of written notice of such breach. 
    3. Termination for Convenience.  Either party may terminate this Agreement for convenience upon ten (10) days prior written notice to the other party.
    4. Effect of Termination. Upon termination of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate and Supplier and its Authorized Users must cease all use of the Services; (b) promptly after the effective date of termination or expiration, each party will comply with its obligations to return or destroy all Confidential Information of the other party; and (c) any amounts owed to ShopDot under this Agreement will become immediately due and payable. Sections 1, 3.2, 3.3, 4, 5.1, 5.8, 5.9, 5.10, 6, 7, 8, 9.4, and 10 will survive expiration or termination of this Agreement for any reason.
  9. MISCELLANEOUS
    1. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Supplier hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Wilmington, Delaware for any lawsuit filed there against Supplier by ShopDot arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 
    2. Dispute Resolution; Mediation; Arbitration.  In the event of any dispute hereunder, prior to taking any formal action, the parties shall engage in informal, good faith discussions to resolve such dispute.  If the parties are unable to resolve the dispute, then the parties agree to comply with the following procedures.  The dispute shall first be submitted to mediation on an expedited basis in New York County, New York, administered by JAMS, or its successor, in accordance with the JAMS rules and procedures then in effect.  Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested, with the expectation that the first mediation session shall occur within forty-five (45) days of such written request.  The parties will cooperate in selecting an appropriate neutral mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings.  If the parties are unable to select the mediator within ten (10) business days after receipt of the mediation notice by JAMS, then JAMS shall designate the mediator.  The parties will share equally in the costs of the mediator and related JAMS administrative costs, and pay in advance the estimated reasonable fees and costs of the mediation, as may be specified in advance by the mediator.  All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any reference, arbitration, litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.  Either party may seek equitable relief in the New York Supreme Court prior to the mediation to preserve the status quo pending the completion of that process.  If necessary, any party may file a motion in the New York Supreme Court to compel the other party to participate in the mediation and the prevailing party shall be awarded its costs and expenses, including reasonable attorneys’ fees in connection with such motion. If the dispute is not resolved within ten (10) business days after the first mediation session, either party may give written notice to JAMS and the other party that the mediation is terminated and may submit the dispute to final and binding arbitration in New York County, New York, administered by JAMS, or its successor, in accordance with the rules and procedures of JAMS (including JAMS Comprehensive Rules) then in effect.  A party may commence the arbitration process called for in this Agreement by filing a written demand for arbitration with JAMS, with a copy to the other party.  Any and all disputes that are so submitted to arbitration shall be decided by three (3) neutral and appropriate arbitrators.  Each party shall select one (1) arbitrator and those party-selected arbitrators shall jointly select the third arbitrator, who shall act as Chairman of the arbitral tribunal.  If the party-selected arbitrators are unable to select the third arbitrator, JAMS shall designate the third arbitrator.  The parties will cooperate in selecting such arbitrators and in scheduling the arbitration proceedings.  The parties will share equally in the administrative costs and arbitrator’s fees associated with the arbitration; provided, however, that each party will bear its own attorneys’ fees and costs associated with the arbitration.  The arbitrator shall apply Delaware law without reference to conflicts of laws principles.  Any award issued as a result of such arbitration shall be final and binding between the parties thereto and shall be enforceable by any court having jurisdiction over the party against whom enforcement is sought.  The parties expressly acknowledge that by entering into this Agreement, they each are waiving their respective rights to have any dispute between the parties hereto adjudicated by a court or by a jury.
    3. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 
    4. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    5. No Assignment. Supplier may not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of ShopDot, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. ShopDot may assign this Agreement to an affiliate or in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of Supplier. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. 
    6. Compliance with Law. Supplier will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services.
    7. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
    8. Independent Contractors. Supplier’s relationship to ShopDot is that of an independent contractor, and neither party is an agent or partner of the other. Supplier will not have, and will not represent to any third party that it has, any authority to act on behalf of ShopDot.
    9. Notices. All notices required or permitted under this agreement must be delivered in writing, if to ShopDot, by emailing info@shopdotpet.wpenginepowered.com, and if to Supplier, by emailing the Supplier Point of Contact email address last made available by Supplier on its Account, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed in the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party. In the event that the email address provided on Supplier’s Account is not valid, or for any reason is not capable of delivering to Supplier any notices required or permitted by this Agreement, ShopDot’s dispatch of the email containing such notice will nonetheless constitute effective notice.  
    10. Precedence.  To the extent that a conflict arises between the terms and conditions of an Order Form and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form, expressly states that it supersedes specific language in the Agreement.  
    11. Modifications of this Agreement. ShopDot may modify this Agreement in its sole discretion, at any time.  When changes are made, ShopDot will make a new copy of the Agreement available on its website and update the Last Updated date above.  ShopDot will also email Supplier at the last email address Supplier made available to ShopDot on its Account.  Unless otherwise specified in ShopDot’s notice, any changes will become effective within thirty (30) days of ShopDot’s provision of notice of such updates.  ShopDot may require Supplier to provide consent to the updated Agreement in a specified manner before further use of ShopDot Service is permitted. Otherwise, Supplier’s continued use of the Services, including any use by its Authorized Users, shall be deemed acceptance of the updated Agreement. If Supplier does not agree to be bound . 
    12. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. 

CCPA ADDENDUM

  1. DEFINITIONS
    1. “CCPA” means the California Consumer Privacy Act of 2018 as set forth in California Civil Code § 1798.100 et seq. and all other applicable laws or regulations relating to the Processing of Personal Information that may exist in the relevant jurisdiction.
    2. “Business,” “Business Purpose,” “Consumer,” “Person,” “Personal Information,” “Sell,” “Service Provider,” and “Third Party” shall have the meanings set forth in the CCPA.
    3. All other defined terms shall have the meanings set forth in the Agreement.
  1. TERMS
    1. The parties agree that Supplier is a Business and ShopDot, Inc. (“ShopDot”) is its Service Provider in relation to this Addendum and Personal Information that is Processed in the course of ShopDot’s provision of the Services set forth in the Agreement. The parties agree to comply at all times with the applicable provisions of the CCPA in respect to the collection, transmission, and processing of all Personal Information exchanged or shared pursuant to the Agreement.
    2. The subject-matter of the Processing of Personal Information covered by this Addendum is the Services provided to Supplier by ShopDot as set out in the Agreement.
    3. In respect of Personal Information Processed in the course of providing the Services, ShopDot:
      1. shall Process Personal Information only in accordance with the documented instructions from Supplier (as set out in this Addendum or the Agreement or as otherwise notified by Supplier to ShopDot from time to time); provided ShopDot may Process Personal Information for Business Purposes under the CCPA or another applicable law or regulation, and in such cases ShopDot will inform Supplier of such requirement prior to the Processing unless that law prohibits this on important grounds of public interest;
      2. may hire other companies to provide limited services on its behalf, provided that ShopDot complies with the provisions of this clause. Any such subcontractors will be permitted to Process Personal Information only to deliver the Services. ShopDot remains responsible for its subcontractors’ compliance with the obligations of this Addendum, and ShopDot shall ensure that any subcontractors to whom ShopDot transfers Personal Information will have entered into written agreements with ShopDot requiring that the subcontractor abide by terms substantially similar to this Addendum; and
      3. shall reasonably assist the Supplier with its obligation to respond to requests from Consumers under the CCPA (including requests for information relating to the Processing, and requests relating to access, rectification, erasure or portability of the Personal Information) provided that ShopDot reserves the right to reimbursement from Supplier for the reasonable cost of any time, expenditures or fees incurred in connection with such assistance.
  1. MISCELLANEOUS
  1. Except as expressly provided in this Addendum, the parties intend no amendment or modification of the Agreement or in such other addendum or supplement which may have been signed by the parties.
  2. Any notice to be provided under this Addendum to Supplier shall be sent via email to the email address associated with Supplier’s account.
  3. This Addendum supplements the terms of the Agreement. To the extent that a conflict arises between this Addendum and the Agreement regarding the processing of Consumers’ Personal Information, the terms of this Addendum will govern.
  4. If any provision of this Addendum is held by a court of competent jurisdiction to be contrary to the law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Addendum shall remain in full force and effect.
  5. No waiver under this Addendum will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
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