Crowdmade's Client Merchandise Agreement
- Background. Company owns and operates the online retail website www.crowdmade.com (“Site”) in connection with the sale of merchandise and other products. Client wishes to promote, market and advertise and sell its merchandise (“Products”) on the Site. Company will provide access to the Site and related services to allow Client to sell Products.
- Client Program. In order to sell your Products on the Site, Client must enter into this Agreement and be accepted to the Client Program. Upon your acceptance into the Client Program, Client will receive access to Company’s website portal (“Platform”) with a unique user name and password provided by Company.
- Term. The term of this Agreement (“Term”) shall commence on the date of your acceptance to the Client Program and continue, unless terminated as provided in this Agreement.
- Products. Client may sell two categories of Products on the Site, Company Manufactured Products and Client Manufactured Products (as defined below).
Company Marketing Materials. Company may provide Company artwork, trademarks, logos and other materials (“Marketing Materials”) to Client. During the Term of this Agreement, Company hereby grants to Client a free, non-exclusive, non-transferable and revocable license to market and promote the Site and to use the Marketing Materials provided by Company for the sole purpose of promoting the Site and Products. Company may revoke this license at any time by giving Client written notice (including by email).
Pricing and Fees.
- a) Company Manufactured Products. Client may offer for sale certain products that are manufactured by Company. The list of available products along with product costs will be provided to Client on the Platform. Product costs are subject to change and Company reserves the right to change the costs of the products.
- b) Custom Manufactured Products. Client may offer for sale products that are manufactured by Company or Client and stored at Company’s storage and fulfillment center. You are responsible for all design, creation, manufacturing and liabilities of your Client Manufactured Products, including, all costs and expenses, as well as, costs and expenses of shipping to our storage and fulfillment center.
- c) Content. Client is responsible for design and creation of any content and materials (“Content”) used in connection with the sale and marketing of Client. Products. Client will upload to the Site all Content that Client will use with the Site, including, artwork, titles and digital images. You grant to Company a free, non-exclusive worldwide license to use such Content in all media now known or hereafter created: (a) to market, offer for sale and sell your Products, and (b) to advertise and promote your Products and the Site.
- d) Company Design Services. Company may in some cases provide design services to Client. In the event, Client desires Company to provide design services, such service will be subject to separate fees to be agreed to between Company and Client pursuant to a separate agreement.
Payments. You will receive 100% of Net Revenue received from the sale of Client Manufactured Products and Company Manufactured Products sold and not returned, and not including applicable local sales tax paid by Customers as follows:
- a) Company Manufactured Products. Client will determine the sales price to the customers (“Customer”) but in no case shall it be less than the “All-In Product Cost” as stated on the Platform Client dashboard. The “All-In Product Cost” includes costs of manufacturing product, storage of materials, payment processing, fulfillment fees, packaging materials, customer service fees and cost of returns. Each order will be charged a shipping cost, which will offset the shipping expense, which is the Company’s responsibility.
- b) Custom Manufactured Products. Client will determine the sales price to Customers. Company will charge an “E-Commerce Service Fee” of 15% of the sales price plus any additional applicable storage, payment processing, fulfillment fees, packaging materials, customer service fees and cost of returns as well as maintenance and marketing of the e-commerce store.
Company will compute all sales earned by Client on a monthly basis and will remit to Client the amount due, if any, within thirty (30) days of the end of the applicable accounting period. All payments may be by check or PayPal. Company shall not be obligated to send any amount due until unpaid amounts due hereunder exceed $10 in the aggregate.
Relationship of Parties. Client is an independent contractor and is not an agent of, and has no authority to bind, Company by contract or otherwise. Nothing in this Agreement will create any partnership, joint venture, franchise or employment relationship. Client will report as income all fees Client receives pursuant to this Agreement and will be solely responsible for all taxes, withholdings and other statutory obligations.
Prohibited Merchandise. Client agrees not to market or sell any Product that is: (a) unlawful in any manner; (b) which is otherwise harmful, threatening, defamatory, obscene, pornographic, offensive, harassing, sexually explicit, violent, discriminatory; (c) infringes the rights of a third party, including, without limitation, copyrights, trademarks, patents, trade secrets, and rights of privacy and publicity; or (d) or otherwise objectionable in Company’s sole discretion. Client will not do anything that might reasonably be expected to damage the Company’s business, interest or reputation and will not make or publish any disparaging remarks concerning Company, Site or Company products.
Data. Company owns all right, title and interest in and to all information that is created or collected in the operation of the Site and Platform (“Data”), including, without limitation: (i) any contact information collected from any Customers; and (ii) any information collected about Product sales generated through the Site.
Intellectual Property Ownership.
- Company Manufactured Products Net Revenue: sale price for each product less All-In Product Cost.
- Client Manufactured Products Net Revenue: sale price for each product less E-commerce Service Fee.
Representations, Warranties and Exclusions. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, and (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party.
- Client Property. Client retains all right, title and interest in and to its Products and Content, including all copyrights, trademarks and other intellectual property rights therein.
- Company Property. All ownership rights, title and interest in and to the trade names, logos, trademarks, Internet domain names, copyrights, Site, Platform, Data and Marketing Materials, as such may be modified, upgraded, and/or enhanced from time to time (together with all intellectual property rights therein, “Company Property”) will remain with and belong exclusively to Company. Company hereby expressly reserves all rights not expressly granted to Client in this Agreement, and Client will not acquire any such rights, whether by virtue of this Agreement, operation of law, estoppel, or otherwise. Client shall not contest, directly or indirectly, the validity of Company’s ownership of any intellectual property rights in and to Company Property.
Client represents and warrants that (a) Client shall use the Site and Services solely for the legitimate business purposes contemplated by this Agreement, (b) Client shall not interfere with or disrupt the integrity or performance of the Site or Data contained therein or attempt to gain unauthorized access to the Site, (c) Client agrees to abide by all laws, rules, and regulations that are applicable to it (d) the Content and Products (i) do not and will not, directly or indirectly, violate, or infringe the rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right; (ii) are not fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening or obscene; (iii) do not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age; and (iv) are not illegal and do not promote illegal or harmful activities or substances.
Indemnification. Client will protect, indemnify and hold Company harmless from any and all claims, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding arising out of any (a) breach or alleged breach of any representation, warranty, covenant or agreement of Client hereunder; (b) relating directly or indirectly to the Client Manufactured Products, including because of any imperfection or defect in Client Manufactured Products, or based upon any claim of product liability or strict liability, or because of the failure of such Client Manufactured Products to be in accordance with the description of such Client Manufactured Products, or caused in any manner by any act or failure to act of Client in connection with the furnishing of Client Manufactured Products, (c) the negligence or willful misconduct of Client; or (d) a failure of Client to comply with applicable laws and regulations.
Disclaimer. COMPANY PROVIDES THE SITE, PLATFORM, DATA AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SITE, DATA, ANY THIRD-PARTY’S PROCEDURES AND SYSTEMS FOR SHIPPING, PROCESSING AND REPORTING SALES, OR ANY ADDITIONAL TOOLS: (I) WILL BE UNINTERRUPTED OR SECURE; (II) WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS; (III) WILL BE COMPLETE; (IV) WILL MEET CLIENT’S REQUIREMENTS; OR (V) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE A CUSTOMER USES. COMPANY MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
Termination. This Agreement can be terminated by either party at any time upon thirty (30) days written or email notice. Sections 7 through 18 shall survive any termination or expiration of this Agreement. Upon termination, Client will be responsible for all costs and expenses of Product inventory warehousing and shipping to Client’s designated storage location.
Confidentiality. Client agrees to keep this Agreement and its terms and conditions confidential. Client agrees to hold all information or materials obtained from Company in strict confidence, not to disclose it to others or use it in any way, commercially or otherwise, except in performing the Services, either before or after expiration or termination of this agreement.
Assignment. This Agreement cannot be assigned by Client. Client acknowledges that this Agreement may be freely assigned by Company and shall inure to the benefit of Company’s successors, licensees and assigns.
Miscellaneous. This document reflects the entire understanding of the parties. If any term, provision, covenant, or condition of this Agreement is held by a court to be invalid, void, or unenforceable, the rest of the Agreement will remain in full force and effect, and will in no way be affected, impaired, or invalidated. This Agreement is governed by the laws of the State of California and the courts located in Alameda County, California will have exclusive jurisdiction over all disputes under this Agreement.