Vendor TOS
IMPACT MARKETPLACE TERMS OF SERVICE AGREEMENT
This Marketplace Terms of Service Agreement (“Agreement”) is entered into as of the date specified on the SOW (“Effective Date”) by Impact Circle Inc., a California corporation, doing business as EducationMegaStore and HomeschoolingMegaStore (“Impact”) and the Vendor specified on the Statement of Work (the “SOW”). Each SOW entered into between Impact and Vendor is deemed to incorporate all the terms of this Agreement. Each of Impact and the Vendor are defined as a “Party” and together identified as the “Parties.” Capitalized terms used but not defined in this Agreement will take the meanings given to them in the SOW. The purpose of this Agreement is to provide Vendor with the opportunity to sell products through the Impact Marketplace. For purposes of this Agreement, “Marketplace” means a network of vendors contracted with Impact whose products are made available for transactions or sales between Impact and Impact end-users conducted via the internet and Impact strategic partnerships.
1. CORE TERMS
1.1. Limited License. When Impact and Vendor enter into a SOW, in the form provided by Impact and made a part of this Agreement, Impact thereby grants to Vendor a limited, non-exclusive, non-transferable, revocable license to access and use the Marketplace in accordance with this Agreement. Vendor may not sublicense, assign, or transfer any rights under this license. Vendor may not use the Marketplace in any way that violates applicable laws or this Agreement. As conditions of this license: Vendor agrees it must not engage in fraud, misrepresentation, or IP infringement; stalk, harass, or intimidate any user; impersonate another person or business; solicit or manipulate reviews or offer incentives for reviews; post prohibited content (hate speech, obscene material, malware, defamatory statements, false claims); use automated tools to scrape or mine Marketplace data; or, interfere with the Marketplace’s operation.
1.2. Authorization to List & Sell. Vendor hereby authorizes Impact to list and offer Vendor’s products on the Marketplace; to facilitate the sale of Vendor’s products on the Marketplace; to determine the placement, marketing and styling of Vendor’s products on the Marketplace; to curate product categories and to make editorial decisions about product placement and product prominence; to make editorial decisions about featuring Vendor’s products, or not featuring Vendor’s products; to make editorial decisions about the prominence of Vendor’s brand or name or products relative to other vendors and other vendors’ products; to select where and when to feature Vendor’s products under a category and without identifying the Vendor; to arrange the purchase and sale of Vendor’s products on the Marketplace, all subject to the terms and conditions of this Agreement (inclusive of the initial SOW and any subsequent SOWs). Impact does not guarantee any sales, revenue, or specific business outcomes, from being listed on the Marketplace or from purchasing marketing or promotional services from Impact. Impact does not guarantee any placement or prominence of Vendor’s products or Vendor’s brand. Vendor acknowledges Impact may place Vendor’s products alongside competitors of Vendor and may facilitate product comparisons and product listings with varying levels of detail, including listings with minimal source identification. Impact is authorized to reasonably edit and modify Vendor’s product titles, descriptions, keywords, or other listing details to improve clarity, highlight product benefits, ensure compliance with program requirements, or optimize for customer understanding, including improving product visibility, SEO performance, and searchability within the Marketplace and on external search engines.
1.3. Effects of Termination. Upon termination of this Agreement, (i) all outstanding fees and other charges due under the Agreement will become immediately due and payable (ii) Vendor will have no further right to be placed on the Marketplace or receive orders; (iii) each Party must promptly remove any Impact Generated Content from any public-facing materials (online or otherwise) and (iv) all clauses which, either expressly or by their nature. relate to the period after the expiry or termination of this Agreement shall remain in full force and effect. Termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of this Agreement which existed at or before the date of termination. Upon termination, each Party shall immediately cease to use, either directly or indirectly, Confidential Information and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
2. REVENUE AND TRANSACTIONS
2.1. Product Definitions. For the purposes of this Agreement:(“Digital Products”) means any intangible educational, informational, or creative content created and owned by Vendor that is delivered electronically rather than in physical form. Digital Products include, but are not limited to, downloadable files (such as PDFs, e-books, audio files, or video files), online courses, software, apps, and other electronic resources. Delivery of such products may occur through automated email, secure file download, or user login credentials and instructions provided to the purchaser.(“Physical Products”) means any tangible, material goods manufactured, packaged, or otherwise prepared by Vendor that require physical shipment to the purchaser. These include, but are not limited to, books, kits, supplies, equipment, and any other items that must be delivered by mail or courier service. Physical Shipped Products are considered delivered upon transfer to the designated carrier with proper shipment details provided to the purchaser.
2.2. Fees and Commissions. On or before the Setup Fee Due Date, Vendor will pay Impact the Setup Fee specified on the SOW. Beginning on the one (1) year anniversary of the Effective Date, the monthly Management Fee specified on the SOW will accrue and be owed to Impact. When users of the Impact Platform (“End-Users”) purchase Vendor products on the Marketplace, Impact will earn the Commission(s) specified in the SOW, calculated against gross sales of Vendor’s products on the Marketplace (excluding taxes and shipping costs). Impact may deduct any fee or Commission from gross sales for Vendor products. All fees described in this Section and all fees for marketing or promotional services are nonrefundable.
2.3. Transaction Flow. Impact will be the “Bill to” for each transaction. Impact will provide all requisite “Ship to” information to Vendor including, but not limited to, customer name, email address, school name and ship to address. Impact will create a unique order ID for every transaction. Vendor must fulfill and ship the product(s) based on the specified terms in the SOW. Payments will be processed according to the terms specified in the SOW. Vendor shipping terms are specified in the SOW
2.4. Sales Tax. Impact is responsible for collecting and remitting all applicable sales and government taxes in relation to transactions conducted through the Marketplace based upon the information provided by Vendors. Vendor is responsible for notifying Impact of any and all changes related to applicable sales tax for Vendor products. Vendor agrees to refund erroneously charged taxes when identified.
3. REPRESENTATIONS AND WARRANTIES.
3.1. Vendor represents and warrants: (i) that Vendor has the power to authorize the sale and/or display of its products on-line as part of the Marketplace; (ii) that Vendor has fully disclosed any restrictions on the sale or display of its products online as part of the Marketplace; (iii) that Vendor has the power and authority to enter into this Agreement and perform its obligations hereunder; (iv) that all product information, data, images, and/or intellectual property provided by Vendor: (a) complies with all applicable laws; (b) are accurate and all claims contained therein have been substantiated; and (c) have been cleared for the uses contemplated hereunder; (v) that Vendor has secured any and all clearances, permissions, approvals, authorizations, rights and licenses necessary for the use or display of all Vendor product information, data, images, and/or intellectual property provided to Impact and that all Vendor Content is accurate, lawful and non-infringing; (vi) that all of Vendor’s products provided to Impact’s End-Users shall be merchantable, free of material defects for at least one (1)-year from purchase and fit and sufficient for purposes intended; (vii) that Vendor complies with and will comply with all applicable law, including California Civil Code §1670.8 and the federal Consumer Review Fairness Act, which prohibits “gag clauses”; (viii) that Vendor will provide customer support and process returns in accordance with Marketplace policies; and, (ix) that Vendor will maintain commercial general liability insurance with commercially reasonable limits and provide certificates upon request.
3.2. Impact represents and warrants: (i) that Impact has the power and authority to enter into this Agreement and perform its obligations hereunder; (ii) that Impact complies with all applicable laws; (iii) that Impact serves as a market-maker for Vendor and customers; (iv) that Impact it has provided no representations or warranties about sales, customers or End-Users of Vendor’s products; (v) any and all warranties by Impact whether expressed, incorporated or implied, are limited to the extent and period mentioned in this Agreement. To the maximum extent allowed by applicable law, Impact disclaims (and disclaims on behalf of its licensors) all other warranties, conditions, and other terms, whether express or implied or incorporated into this Agreement by statute, common law or otherwise, including the implied conditions and warranties of merchantability and fitness for a particular purpose. Impact’s services are rendered on an "as is" basis. Impact does not warrant or promise that its performance under this Agreement will be error free.
4.1. VENDOR IP. Vendor grants to Impact and its affiliates a non-exclusive, worldwide, royalty free right and license to use, adapt, modify, translate, publish, publicly perform, and display (on websites, email, text, social and marketing vehicles) any product information, data, logos, images, and/or intellectual property Vendor furnishes to Impact (“Vendor Content”), for any commercial purpose by Impact, including use on Impact’s websites, emails, and in any related social or marketing or advertising campaigns related to Impact’s business. Vendor acknowledges that Impact is reliant upon Vendor to ensure that all Vendor Content is accurate and complete and Vendor agrees to notify Impact and revise, update, and resubmit Vendor Content upon discovery that it is inaccurate or incomplete. Vendor also authorizes Impact to copy, use, and display any Vendor Content obtained from Vendor’s website and agrees to provide Impact with access to such Vendor Content upon request. Vendor grants Impact the right to use Vendor Content in its public promotional materials and communications, including promotion on its website. The foregoing promotional materials and communications may be created, displayed, and reproduced without Vendor’s review, provided that they are in compliance with this section and with any Vendor usage guidelines provided by Vendor to Impact in writing. The licenses and grants provided in this Section will lapse and terminate thirty (30)-days after the end of the Term. Vendor is solely responsible for all Vendor Content, provided that, Impact may review, remove, or moderate Vendor Content to ensure compliance with law, this Agreement and Marketplace guidelines.
4.2. IMPACT IP. Vendor acknowledges and agrees that all patents, designs, trade names, trademarks, copyrights, trade secrets, or any other proprietary rights or entitlements (collectively, “IP”) owned or controlled by Impact and/or its affiliates shall be the sole property of Impact and/or its affiliates. As part of its services to Vendor, Impact (either directly or through one of its authorized contractors or affiliates) may create or otherwise generate images, social media posts or IP of certain products offered by Vendor (hereafter, “Impact Generated Content”) which may then be utilized to advertise or other sell products through the Marketplace, social media, and/or affiliate websites. Vendor acknowledges and agrees that Impact owns any and all rights to use, publish, and copyright Impact Generated Content in any and all media, now or hereafter known. Vendor further conveys and releases to Impact all rights to exhibit this Impact Generated Content (even if it includes or otherwise encompasses any work that Vendor may claim copyright upon) in any and all media, now or hereafter known, publicly or privately. Vendor further acknowledges and agrees that it has no right, title, or interest in or to any of the Impact Generated Content and hereby releases and holds harmless Impact and its successors and assigns from any damages or liability relating to or arising from any use of or modification or alteration to any of the Impact Generated Content; and hereby waives any claims it may have based on any use of the Impact Generated Content or works derived therefrom. Vendor further acknowledges and understands that, in the event Vendor’s account with Impact is terminated (for any reason and whether by Impact or Vendor), Vendor shall have no right to use any Impact Generated Content, absent the express, written content of Impact, and must promptly remove any Impact Generated Content from any materials their publish or distribution in any forum (online or otherwise.)
5. INDEMNIFICATION. Each Party shall indemnify, defend (with counsel chosen by the indemnified party), and hold harmless the other Party and the other Party’s owners, employees, agents, and affiliates against and from any and all claims, lawsuits, judgments, losses, recalls, civil penalties or actions, costs, liabilities, damages, and expenses (including attorney fees) incurred or to be incurred, which may be made or brought against the indemnified party or its affiliates by any person, corporation, government, government agency, class, or any other entity, arising or alleged to have arisen out of or relating to the first Party’s breach of this Agreement. Vendor agrees that it shall indemnify, defend (with counsel chosen by Impact), and hold harmless Impact, its owners, employees, agents, and affiliates against and from any and all claims, lawsuits, judgments, losses, recalls, civil penalties or actions, costs, liabilities, damages, and expenses (including attorney fees) incurred or to be incurred, which may be made or brought against Impact or its affiliates by any person, corporation, government, government agency, class, or any other entity, arising or alleged to have arisen out of or relating to (a) the death of or injury to any person or damage to any property which resulted or is alleged to have resulted from Vendor products, the use of Vendor products, or any acts or omissions by Vendor, its employees or agents, and any person or entity acting or alleged to have acted on behalf of Vendor; (b) the failure or alleged failure from Vendor or products to fully comply with any warranties, guarantees, or representations of Vendor; (c) any Vendor Content or other information furnished by Vendor to Impact; (d) of any infringement by a Vendor product of any IP of any third party; (e) the failure of Vendor to comply with any applicable law; (f) third-party claims relating to Vendor and sales channels other than the Marketplace; and (g) any tax liability relating to Vendor. This agreement to indemnify, defend, and hold harmless applies whether the claim or loss was alleged to have been caused in part by the negligence or fault of Impact (except for gross negligence).
6. CONFIDENTIALITY. The Parties acknowledge that each Party may disclose certain valuable confidential and proprietary information (the “Disclosing Party”) to the other Party (the “Recipient”). The Recipient may only use the Disclosing Party’s Confidential Information to fulfill the purpose of this Agreement and in accordance with the terms of this Agreement. For purposes of this Agreement, the term “Confidential Information” includes (i) any and all trade secrets, proprietary and/or confidential information and data, whether maintained in hard copy or electronic form, wherever situated and in whatever form, including but not limited to any printed, typewritten, handwritten, digitally recorded or otherwise recorded material, paper, electronic mail messages, digital databases, CD, disk, hard-drive, flash drives, software, audiotape, videotape and film; (ii) customer, price and supplier lists, reports, or computer programs; unwritten information, techniques, processes, practices or knowledge, data, observations, and other information; (iii) information not known by actual or potential competitors of the Disclosing Party or is generally unavailable to the public; (iv) information created, discovered, developed or otherwise become known to the Disclosing Party or in which property rights have been assigned or otherwise conveyed to the Disclosing Party; (v) information that has material commercial and economic value or potential material commercial and economic value to the Disclosing Party’s present or future business; and, (vi) information, the unauthorized disclosure of which could be detrimental to the interests of the Disclosing Party and Disclosing Party’s customers. The Recipient will protect the Disclosing Party’s Confidential Information by using at least the same degree of care as the Recipient uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the Recipient may disclose Confidential Information to its employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. This Section 6 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the Parties with respect to Confidential Information and is a complete and exclusive statement thereof. Confidential Information excludes material: (i) known to the Recipient prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) that becomes known (independently of disclosure by the Disclosing Party) to the Recipient directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) that becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Recipient; or (iv) that is independently developed by the Recipient without use of or reliance upon the Disclosing Party’s Confidential Information, and the Recipient can provide evidence to that effect. The Recipient may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the Disclosing Party prior written notice sufficient to permit the Disclosing Party to contest such disclosure or seek, at Disclosing Party's expense, a protective order or other remedy, and Recipient shall reasonably assist Disclosing Party therewith. If Recipient remains legally compelled to make such disclosure, it shall: (i) only disclose that portion of the Confidential Information that it is required to disclose consistent with the advice of its counsel; and (ii) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment. Vendor agrees that it is absolutely barred from commercializing, selling, reselling, mining, harvesting or otherwise exploiting, or contacting, soliciting, any End User using Confidential Information made available to Vendor through the Marketplace or sales process.
7. LIMITATION OF LIABILITY.
7.1. Maximum Liability. Except for liability caused by a Party’s breach of obligations in Sections 3, 4, 5 and 6, for damages arising from fraud, intentional misrepresentation or willful misconduct, and for Vendor’s payment obligations herein, in no event will either Party’s maximum aggregate liability arising out of or related to this Agreement, regardless of the cause of action and whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, exceed the Fees payable to Impact under this Agreement during the twelve (12) month period preceding the date of initial claim.
7.2. No Consequential Damages. Neither Party shall have any liability for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with this Agreement, however caused, whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, and whether or not advised of the possibility of such damages; except, however, consequential damages may be sought and awarded for fraud, intentional misrepresentation or willful misconduct.
7.3. Construction. This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by applicable law, including liability for (a) death or bodily injury caused by a Party’s gross negligence, willful misconduct, fraud, or violations of law.
8. GENERAL TERMS
8.1. Force Majeure. Neither Party will be liable to the other Party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control. The affected party will promptly notify the other party of the circumstances causing its delay or failure to perform and of its plans to implement a work-around solution. However, in such event, both Parties will resume performance promptly after the cause of such delay or failure has been removed.
8.2. Governing Law and Venue. Each Party agrees to the governing law of the State of California without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of City and County of San Francisco, State of California with respect to any dispute, claim, action, suit or proceeding (including non-contractual disputes or claims) arising out of or in connection with this Agreement, or its subject matter or formation. To the extent not prohibited by applicable law, each of the Parties hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement.
8.3. Arbitration. Except for equitable and injunctive relief, any and all disputes, claims and controversies where the aggregate amount of the claim is at least $25,000 and which relates to this Agreement, or the alleged breach thereof, that fail mediation shall be settled by final and binding arbitration (“Arbitration”) conducted in City and County of San Francisco, California, in accordance with the provisions hereof. Any claims by Vendor must be filed within one year of accrual.
Except as otherwise provided herein, the Arbitration shall be commenced and conducted in accordance with the Rules of Practice and Procedures of JAMS or its successor as in effect at the time (“Rules”). The exact time and location of the Arbitration proceeding will be determined by the arbitrator. The Parties shall jointly select one (1) arbitrator from JAMS’s panel of arbitrators. If the Parties are unable to agree upon an arbitrator within sixty (60) days of the Request for Arbitration, the arbitrator shall be selected in accordance with the Rules. All testimony in the Arbitration proceeding shall be given under oath. Commencement of any Arbitration pursuant hereto shall be subject to the same statutes of limitations as would apply if the matter were to be filed in a court of law or equity. Notwithstanding the foregoing, either Party may immediately bring a proceeding seeking preliminary injunctive relief in a court having jurisdiction thereof which shall remain in effect until a final award is made in the arbitration. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein. The expense of the arbitrator shall be shared equally by Impact and the Vendor. All statutes of limitation applicable to any dispute shall apply to any arbitration proceeding. All discovery activities shall be expressly limited to matters directly relevant to the dispute being arbitrated. Judgment upon any award rendered in arbitration may be entered in any court having jurisdiction.
8.4. Notices. All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service; or (d) when provided via email when the sender has received a delivery/read receipt. Notices for Impact should be sent to the following addresses: (i) for physical Notices, to 15335 Morrison Street, #230, Sherman Oaks, CA 91403 with a copy to Infinity Law Group LLP, Attn: Ilya Filmus, 1020 Aileen St., Lafayette, CA 94549. Notices for Vendor shall be directed to the address specified on the SOW.
8.5. Assignment. Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, Impact may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an affiliate, upon written notice to Vendor.
8.6. Independent Contractors. Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between Impact and Vendor, and neither Party will have the right, power or authority to obligate or bind the other in any manner whatsoever.
8.7. Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Should any term or provision of this Agreement be declared void or unenforceable by any court of competent jurisdiction, the Parties intend that a substitute provision will be added to this Agreement that, to the greatest extent possible, achieves the intended commercial result of the original provision.
8.8. Waiver. The failure of either Party to enforce any rights granted to it hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
8.9. Modification. An SOW shall not be changed, modified, terminated, or discharged, in whole or in part, except by an instrument in writing signed by both Parties thereto, or their respective successors or assignees. Impact may modify or discontinue any part of the Marketplace and will provide notice of material changes where practical. Impact may amend this Agreement at any time, in its sole discretion. Any material changes that affect commercial or operational terms will be provided with at least 30 days’ written notice to Vendor. If Vendor does not agree to the modified terms, Vendor may terminate a SOW without penalty by providing written notice before the changes take effect. Minor changes for compliance, security, or administrative purposes may be made without advance notice.
8.10. Entire Agreement. This Agreement, including the SOW(s) made hereunder, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous agreements, understandings, negotiations, representations or proposals or any kind, whether written, oral or otherwise. Neither party has relied upon any statements, representations or other communications that are not contained in this Agreement.
8.11. Attorneys' Fees. In the event of any dispute with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and other costs and expenses incurred in resolving such dispute, regardless of whether the dispute is adjudicated by arbitration or in a court of law.
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