Last Updated: September 9, 2020
Thank you for using the Trendboard mobile app (“Trendboard App”) and/or use order processing, fulfillment, shipping or other services provided by or for Trendboard to retailers, including any software integration between you (“Retailer”) and NextFitFinder, Inc. (“Trendboard”) for purposes of enabling purchasing of Retailers goods facilitated by Trendboard (“Trendboard Services”). This Trendboard Marketplace Program Services Retailer Agreement governs Retailer’s use of the Trendboard Service, including transactions you agree to enter into with other users. This Trendboard Marketplace Program Services Retailer Agreement is effective as of the date Retailer agrees to it, and consists of (1) these Standard Terms and Conditions for Trendboard Marketplace Program Services (“Terms and Conditions”) and (2) all Trendboard policies and guidelines for Retailers, (together, the “Retailer Policies”), which are incorporated herein by reference.
Retailer represents and warrants that if Retailer is entering into this Agreement on behalf of an entity, Retailer has the requisite right, power, and authority to enter into this Agreement on behalf of such entity.
RETAILER UNDERSTANDS AND AGREES THAT ITS RELATIONSHIP WITH TRENDBOARD IS LIMITED TO BEING A TRENDBOARD SERVICES USER, AND NOT AN EMPLOYEE, AGENT, JOINT VENTURER OR PARTNER OF TRENDBOARD FOR ANY REASON, AND RETAILER ACTS EXCLUSIVELY ON ITS OWN BEHALF AND FOR ITS OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF TRENDBOARD. RETAILER AGREES NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT IT IS ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF TRENDBOARD, INCLUDING BY INAPPROPRIATELY OR ILLEGALLY USING ANY TRENDBOARD INTELLECTUAL PROPERTY.
Trendboard may change these Terms and Conditions or the Retailer Policies at any time in its sole discretion. The changes will be effective upon notification to Retailer. Retailer is responsible for reviewing any applicable changes. Retailer’s continued offering of any Products for sale on the Trendboard App or using any of the Trendboard Services constitutes Retailer’s acceptance of such changes. If Retailer does not agree to any noticed changes, Retailer should discontinue use the Trendboard App and the Trendboard Services.
Trendboard provides the Trendboard App and Trendboard Services to enable Retailer to sell Products to third party buyers (“Customers”). Retailer may only sell those Products Retailer has the legal right to sell and must do so consistent with the terms and conditions of this Agreement. All transactions with Customers are between Retailer and the Customer, and Retailer will be the seller of record. Trendboard is not a party to any transactions although Trendboard will provide the Trendboard Services in connection with the transactions as expressly set forth in Section 6. Retailer acknowledges and agrees that Trendboard may contract with third party service providers to provide Trendboard Services, management software and other related services.
Product Guidelines. These Terms and Conditions describe certain general obligations regarding Products Retailer may and may not list on the Trendboard App. Retailer will not list, market, promote, offer for sale, or sell any Products through the Trendboard App in violation of this Agreement.
Abiding by the Law. Retailer will (and Retailer represents and warrants that Retailer will) comply with all applicable “Laws” (meaning all applicable laws, regulations, legal requirements, and generally accepted industry standards and self-regulatory principles), including Laws related to marketing, packaging, consumer and product safety, product testing, labeling, pricing and packaging, in connection with this Agreement; Retailer’s use of the Trendboard App and the Trendboard Services, and Retailer’s marketing, promotion, offering for sale, or selling any Products through Trendboard App. Upon Trendboard’s request, Retailer will promptly provide Trendboard with (i) certificates of authenticity (or similar documentation) for Products, (ii) documentation (e.g. email verifications from the brand owner or supplier) showing that Retailer has a legal right to sell the Products through the Trendboard App, (iii) documentation (e.g. email verifications from applicable rights holders) showing that Retailer is licensed or otherwise has a right to use any Retailer Product Content (as defined below), and (iv) written certification from an officer of Retailer stating that Retailer has complied with any of Retailer’s obligations under this Agreement, including, for example and without limitation, compliance with consumer product safety laws, and authenticity of Products.
Territory. Retailer will only offer Products for sale through the Trendboard App that may legally be sold and shipped in all U.S. states and such other jurisdictions as specified from time to time by Trendboard to Retailer. Retailer represents and warrants that its principal place of business is in the United States and Retailer will not conduct any operations relating to this Agreement from outside the United States, except for the operation of customer service call centers.
Legal Right to Sell. Retailer may sell a Product on Trendboard App through the Trendboard Services if Retailer is an authorized reseller of that Product, or purchased or otherwise legally acquired that Product from an authorized reseller of that Product, or otherwise has a legal right to sell that Product through the Marketplace Program.
Product Authenticity. Retailer may only sell Products through the Trendboard Services that are new and authentic. Retailer will maintain adequate processes and procedures for conducting diligence to assure that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded. Retailer may not (and Retailer covenants that Retailer will not) list any Product or Retailer Product Content (as defined below) on the Marketplace Program, including the Trendboard App or through the Trendboard Services that is counterfeit, illegal, stolen, or fraudulent, or infringes any third-party “Intellectual Property Rights” (meaning any patent, copyright, trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, logo, moral right, trade secret and any other intellectual property right), or that Retailer otherwise do not have the right to sell. All information Retailer provides about the Product will be accurate, current, and complete and not misleading, deceptive, or fraudulent in any way.
Prohibited Listings. Trendboard, in its sole discretion, may prohibit Retailer or ask Retailer to refrain from listing any Products or providing any Retailer Product Content. In addition, Trendboard may remove Retailer listings in its sole discretion in response to notices of alleged copyright infringement, trademark misappropriation, or other intellectual property claims. If Trendboard requests that Retailer remove Products or Retailer Product Content from the Trendboard App, Retailer will make commercially reasonable efforts to remove the Products or Retailer Product Content within 24 hours of such request so that the Products and related Retailer Product Content no longer appear on the Trendboard App. Retailer will not list or include such removed Products or Retailer Product Content on the Trendboard App at any time unless their inclusion is specifically authorized by Trendboard in writing.
Retailer may provide certain product information and any related media, materials, links, images, and other content (together, the “Retailer Product Content”) in connection with this Agreement. Retailer represent and warrant that all Retailer Product Content Retailer provides is truthful and accurate and is in compliance with all Retailer Policies and that Retailer will not use Retailer Product Content to redirect end users of the Trendboard App to any other sales channels. Retailer hereby grants Trendboard and its affiliates, and its service providers and marketing partners, a non-exclusive, royalty-free, perpetual, sublicensable, irrevocable right and license (a) to publish, reproduce, display, distribute, transmit and otherwise use Retailer’s name, trademarks, service marks, and logos (“Retailer Marks”), and (b) to publish and perform, reproduce, distribute, transmit, display, modify, create derivative works of, and otherwise use and commercially exploit all Retailer Product Content, in each case in connection with advertising, marketing and promoting the Products or the Trendboard Services through the Trendboard App, third party websites, e-mail, social media or any other medium. Trendboard and its affiliates may permit Customers, other users of the Trendboard App, and other third parties to share and post Retailer Product Content on their websites, applications, and social media outlets.
Retailer Product Content. In order to list a product for sale on the Trendboard App, Retailer must provide all requested Retailer Product Content and all data elements required for each Product as specified by Trendboard from time to time.
Shopify Integration. Trendboard Product inventory and order integration is managed through the Shopify API integration enabled when Retailed accepted the terms of this Agreement. Retailer agrees that Trendboard may receive Product data, Retailer Product Content and other relavant information via such integration in accordance with this Agreement and any applicable Shopify terms and conditions (“Shopify Terms”).
No Unlicensed Content. If Retailer does not have but needs a license from the brand owner or supplier to use certain content related to a Product, Retailer agrees to not provide that content to Trendboard.
Referral Fees. Trendboard will earn a referral fee equal to a percentage of the gross sales proceeds from the sale of Products (i) including all shipping and handling, gift wrap, and other charges, and (ii) excluding only those taxes separately stated and charged (the “Referral Fee Percentage”) from each Product sale through the Trendboard App (the “Referral Fee”) as further set forth in the Referral Fee Schedule. Additionally, Retailer shall be responsible for all applicable Shopify transaction fees (“Shopify Fees”). Trendboard will remit to Retailer the total amount collects from the sale of Retailer’s Products, less both the Referral Fee and such Shopify Fees, shipped in each 30-day period within 15 days of the end of such 30-day period.
Payment. If Trendboard concludes that Retailer’s actions and/or performance in connection with this Agreement may result in customer disputes, chargebacks or other claims, then Trendboard may, in its reasonable discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to Retailer under this Agreement for the shorter of: (i) a period of 90 days following the initial date of suspension; or (ii) completion of any investigation(s) regarding Retailer’s actions and/or performance in connection with this Agreement.
Payment Processing. Payment processing services for retailers on Trendboard are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this agreement or continuing to operate as a retailer on Trendboard, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Trendboard enabling payment processing services through Stripe, you agree to provide Trendboard accurate and complete information about you and your business, and you authorize Trendboard to share it and transaction information related to your use of the payment processing services provided by Stripe.
Order Process. Customers will place orders (the “Orders”) using the Trendboard App and/or Third Party Store (“Ordering System”) checkout system and Trendboard will collect all proceeds from such transactions. Trendboard will be permitted to, via the integration described in Section 4(b), access, view and use the Order information that Trendboard determines is necessary to track each Order (the “Transaction Information”). Retailer will confirm receipt of each Order either through such integration functionality or otherwise.
Order Fulfillment. Once the Ordering System has transmitted an Order to Retailer, Retailer will, at Retailer’s own expense, be solely responsible for, and bear all liability for, the fulfillment of the Order, including without limitation, packaging and shipping Products and customer service. If the Retailer cannot fulfill any portion of the Order, then Retailer will cancel the entire Order and promptly notify Trendboard. If Retailer initiates the cancellation of any Order any portion of any Order, Retailer will promptly provide Customers with email notification of such cancellation in accordance with applicable Law (including, without limitation, the Federal Trade Commission (“FTC”) “Mail or Telephone Order Merchandise Rule”). Retailer will include information requested by Trendboard, including the Order number, in the cancellation email sent to Customers.
Shipping Options. Retailer will provide Trendboard with the shipping, handling and any other charges for each Product required by the Trendboard App, separate from the purchase price, which may be through the integration with Shopify. Retailer will not enable shipping in Shopify or Trendboard App for any Product in any region where the sale of such product violates any Retailer Policy, the Shopify Terms or applicable Law.
Shipping Process. Retailer will be responsible for shipping all Products purchased by Customers in accordance within the time frame advertised or the processing time specified for such Products through the Trendboard App (whichever time frame is shorter) or, if no time frame is advertised or specified, within 30 days (the “On-Time Ship Standard”). Retailer will be responsible for all shipping charges and for any costs or charges related to shipping-related problems, including without limitation, damaged or lost Products, late shipments or misdelivery. If Retailer cannot meet the On-Time Ship Standard for any Product, Retailer will provide the Customer with email notification of such delay and include information requested by Trendboard in that notification. Retailer will be solely liable for all costs related to any duplicate or inaccurate shipments of Orders. Retailer may only send a shipment confirmation notice to customers following shipment of an Order. Packaging for Products should not contain any Retailer marketing materials that are not included as standard marketing materials with all of Retailer’s Product shipments, and emails sent by Retailer to Customers in connection with an Order will not contain any marketing materials or links to any Retailer or third party website, except for links to shipping websites that permit the Customer to track shipment of their Order.
Shipping Status Reports. During the Term, Trendboard may require Retailer to provide Trendboard with reports on the status of Orders placed pursuant to this Agreement. If Retailer fails to ship an Order within the later of 30 days of placement of the Order or when otherwise agreed with a Customer, the Order may be cancelled by Trendboard and Retailer will be solely liable and responsible for all Product costs and shipping costs associated with such cancelled Order.
Risk of Fraud or Loss. Please note that, though Trendboard will bear the risk of credit card fraud occurring in connection with an Order, Retailer will bear all other risk of fraud or loss and all costs related thereto. For all credit card chargebacks for which Retailer bears the risk, Trendboard will offset such chargeback amounts against amounts otherwise owed Retailer, or send Retailer an invoice and Retailer will pay such invoice within 30 days of receipt. However, notwithstanding the foregoing, Trendboard will not bear the risk of credit card fraud in connection with any Product that is not shipped by Retailer to the shipping address specified in the Transaction Information provided by Trendboard via the Shopify integration, and Retailer will be responsible for all costs related to such credit card fraud under these circumstances.
Cancellations. Retailer is responsible for processing all Customer cancellations and/or customer service price adjustments. Retailer will stop and/or cancel any Order if requested by Trendboard; provided that if Retailer has transferred Products to a shipper, Retailer will use commercially reasonable efforts to stop and or cancel delivery by the shipper.
Refunds. Retailer will be responsible for all non-cash refunds (e.g., store credit, gift cards and exchanges). If Retailer determine a Customer is due a cash refund (e.g., via a refund to the Customer’s credit card, debit card or other form of original payment) Retailer will promptly issue such refund in accordance with its policies and Section 7(a) and notify Trendboard through the Trendboard Services and include other related information requested by Trendboard. Retailer will provide the refund to the Customer via the Customer’s original payment method (e.g., credit or debit card) if possible and, Trendboard will retain the full amount of the Referral Fee and Shopify Fees attributable to such Customer refund.
Recalls. Trendboard will have no responsibility or liability for any recalls of Products sold through the Trendboard App. Retailer is solely responsible for any non-conformity or defect in, or any public or private recall of Retailer’s Products. Retailer will promptly remove any recalled Products from the Trendboard App by unpublishing or retiring the Product through the Trendboard Services. Retailer will notify Trendboard by e-mail at [email address] of all Product recalls within 24 hours of becoming aware of the recall and will promptly provide Trendboard with all information reasonably requested regarding the recall.
Parity. Retailer will maintain parity between the Products Retailer offers through any other online sales channels and the Products offered on the Trendboard App by ensuring that at all times: (a) except for in connection with Excluded Offers, the purchase price and every other term of offer and/or sale of the Products (including associated shipping and handling charges and options, any “low price” guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable return and refund policies) is at least as favorable to Trendboard App users as the most favorable terms upon which a product is offered and/or sold via any other online sales channel; and (b) customer service for the Products is at least as responsive and available and offers at least the same level of support as the most favorable customer service offered in connection with the Retailer Site. If Retailer become aware of any non-compliance with (a) above, Retailer will promptly notify Trendboard and compensate adversely affected Customers by making appropriate refunds to such Customers in accordance with the procedures set forth in Section 7 for providing customers with cash refunds.
Obligations. Retailer will be responsible for all customer service. In performing such customer service, Retailer will always represent itself as a separate entity from Trendboard. Retailer will not disparage Trendboard or its affiliates or its or their Products or services when performing customer service obligations or any other obligation under this Agreement. If Retailer monitors or records customer service calls, Retailer must give notice of such monitoring or recording to all Customers during each such call prior to providing any customer service.
Reporting. Retailer will, within a reasonable period of time (not to exceed 30 days) following request from Trendboard, provide Trendboard with any reports, information or other documentation relating to Retailer’s compliance with this Agreement and applicable Law reasonably requested by Trendboard. In the event Trendboard requests that Retailer provide Trendboard with copies of reports that Retailer were required to file with the CPSC or any other regulatory agency, Retailer will provide such reports within 7 days of Trendboard's written request.
Audit Rights. Retailer will not remove from their Shopify account any information related to Trendboard Services transactions and this Agreement, Trendboard will be permitted, during the Term of this Agreement and for 2 years after its termination or expiration, to review such information to confirm Retailer’s compliance with the terms of this Agreement and applicable Law.
Ownership of Trendboard App. Trendboard, its affiliates, and their service providers and licensors retain all right, title and interest (including all Intellectual Property Rights) in and to (i) the Trendboard App and the Trendboard Services, (ii) all data received from Retailer in connection with the foregoing, and (iii) any of their confidential or proprietary information. Except for a limited right for Retailer to access the Trendboard Services made available to Retailer in accordance with and subject to all the terms and conditions of this Agreement, Trendboard, its affiliates, and their service providers and licensors, as applicable, retain all rights in the foregoing and grant no other rights or licenses (whether by implication, estoppel, or otherwise) under any of their Intellectual Property Rights under or in connection with this Agreement.
Ratings and Reviews. Trendboard may use mechanisms that rate or review, or allow shoppers to rate or review, Retailer’s Products and Retailer’s performance as a seller and Trendboard may make these ratings publicly available. Trendboard will have no liability to Retailer for the content or accuracy of any ratings or reviews. Retailer will have no ownership interest in or license to use any rating or reviews posted on the Trendboard App.
Suggestions and Feedback. If Retailer provides or make available suggestions, comments, ideas, improvements or other feedback or materials to Trendboard or its affiliates in connection with the Marketplace Program, Trendboard App, the Trendboard Services, Trendboard’s other products or services or other subject matter of this Agreement, Trendboard will be free to disclose, reproduce, modify, license, transfer and otherwise distribute, and use and exploit any of the foregoing feedback or materials in any manner.
Trendboard App may terminate this Agreement with Retailer at any time in its sole discretion without notice to Retailer on the Trendboard Services or otherwise. Trendboard may also immediately terminate or suspend Retailer’s participation in the Marketplace Program or Retailer’s access to Trendboard Services, or remove Retailer’s listings at any time in its sole discretion if Retailer violates the terms of this Agreement. Sections 3, 6, 7, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive the expiration or termination of this Agreement for any reason.
General Release. Trendboard and its affiliates are not parties to any transactions through the Trendboard Services between Retailer and any Customers or the manufacturers or distributors of the Products. Retailer hereby releases (and agrees to release) Trendboard and its affiliates (and their respective employees, shareholders, directors, agents and representatives) from any all claims, costs, losses, damages (including any indirect, special incidental, or consequential damages), judgments, fines, penalties, penalties, interest, costs, and expenses (including reasonable attorneys' fees and costs of any investigation, defense, and settlement) arising out of any Claims involving Retailer and any third party or governmental entity or agency.
Section 1542. Retailer agree that the release set forth in this Agreement may apply to unknown and unanticipated claims, damages, and expenses, and Retailer waives any rights that Retailer might have under Section 1542 of the California Civil Code or any other similar enactment of any jurisdiction. California Civil Code Section 1542 states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Indemnity. Retailer will defend (at Trendboard’s option), indemnify and hold Trendboard and its affiliates (and their respective employees, shareholders, directors, agents and representatives) harmless from and against any and all claims, costs, losses, damages (including any indirect, special incidental, or consequential damages), judgments, fines, penalties, penalties, interest, costs, and expenses (including reasonable attorneys' fees and costs of any investigation, defense, and settlement) arising out of any Claims that arise out of or relate to: (i) any breach (or alleged acts or omissions that if true would be a breach) of any of Retailer’s representations, warranties, or obligations set forth in this Agreement; or (ii) the Retailer Site or other sales channels, the Products, any Retailer Product Content, the advertisement, offer, sale or return of any Products, any actual or alleged infringement of any Intellectual Property Rights by Retailer, the Products, or any Retailer Product Content, or any taxes owed by Retailer, or the collection, payment or failure to collect or pay such taxes. Retailer will provide all cooperation, documentation, and information reasonably requested by Trendboard in connection with any Claim. Trendboard will have the right to control all defense and settlement of Claims.
Claims. “Claim” means any action, allegation, claim, demand, lawsuit, legal proceeding, administrative or other proceedings or litigation, inquiry, audit, or investigation.
No Consequential Damages. IN NO EVENT SHALL TRENDBOARD OR ITS AFFILIATES BE LIABLE TO RETAILER OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OR LOSS OF DATA, (B) EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE, OR (C) FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER TRENDBOARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Monetary Cap. IN NO EVENT SHALL TRENDBOARD’S OR ITS AFFILIATES’ AGGREGATE LIABILITY TO RETAILER OR ANY THIRD PARTY FOR ANY CLAIMS, COSTS, LOSSES, DAMAGES (INCLUDING ANY INDIRECT, SPECIAL INCIDENTAL, OR CONSEQUENTIAL DAMAGES), JUDGMENTS, FINES, PENALTIES, PENALTIES, INTEREST, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS OF ANY INVESTIGATION, DEFENSE, AND SETTLEMENT) FOR ANY REASON WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL REFERRAL FEES PAID BY RETAILER TO TRENDBOARD PURSUANT TO THIS AGREEMENT DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES.
Survival of Limitations. THE LIMITATIONS SPECIFIED IN THIS SECTION 14 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
THE MARKETPLACE PROGRAM, THE TRENDBOARD APP AND THE TRENDBOARD SERVICES ARE PROVIDED ON AN "AS IS" BASIS. NEITHER TRENDBOARD NOR ITS AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (b) THAT THE MARKETPLACE PROGRAM, THE TRENDBOARD APP OR THE TRENDBOARD SERVICES WILL MEET RETAILER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; AND (c) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TRENDBOARD APP AND ITS AFFILIATES DISCLAIM ANY AND ALL SUCH WARRANTIES
Integrated Agreement. This Agreement (and all Retailer Policies and any other applicable policies or terms referenced herein, which are incorporated by reference into this Agreement) constitutes the complete integrated agreement between the Parties concerning the subject matter of this Agreement. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded in their entirety by this Agreement. To the extent Retailer is already a party to an agreement with Trendboard regarding Retailer’s participation as a retailer in the Marketplace Program, the terms and conditions of that agreement are hereby terminated and replaced in their entirety with the terms and conditions of this Agreement but Retailer will continue to comply with all Retailer’s surviving obligations under that agreement.
Responsibility for Affiliates and Agents. Retailer will be responsible for any actions taken by Retailer’s affiliates, agents, or other third parties on Retailer’s behalf in connection with this Agreement.
Independent Contractors. Retailer and Trendboard are acting hereunder as independent contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Governing Law. This Agreement is governed by and will be construed in accordance with the laws of the State of California without regard to its principles of conflicts of law. Retailer agree to exclusive jurisdiction of the federal and state courts located in [Santa Clara County], California, and waives any jurisdictional, venue or inconvenient forum objections to such courts.
Assignment. Retailer may not assign this Agreement or any of Retailer’s rights or obligations hereunder without Trendboard’s prior written consent.
Publicity. Retailer will not use the name, logo, trademarks or trade names of Trendboard or any of its affiliates or otherwise, directly or indirectly, refer to Trendboard of any of its affiliates in any publicity release, promotional material, customer or partner list, advertising, marketing or business-generating effort, whether written or oral, without the prior written consent of Trendboard.
Confidentiality. Retailer may have entered a separate confidentiality agreement with Trendboard. This Agreement does not limit Retailer’s obligations under that agreement. In addition, Retailer will treat as confidential, and may not disclose to any third party, any information or communication from, on behalf of, or with Trendboard regarding Retailer’s compliance with this Agreement.
Severability. In the event that any provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or part thereof) shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remainder of this Agreement shall continue in full force and remain in effect according to its stated terms and conditions.
Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.