Mav Farm, Inc.
Last Revised On: September 4, 2020
1. ABOUT THE SERVICES
1.1. The Services support four types of users: (i) brand owners that market and sell their products(“Brands”), (ii) retail stores owners that offer products for sale and allow users to reserve and pick up products locally (“Retailers”), (iii) users who publish photos and videos featuring products and purchase products using the capability provided by the Services (“Consumers”); (iv) individual creators who, in partnership with Mav Farm, publish videos featuring products of Brands for purchase by Consumers ("Individuals"); and (v) media publishers who, in partnership with Mav Farm, publish videos featuring products of Brands for purchase by Consumers (“Publishers”). Brands, Retailers, Consumers, Individuals, and Publishers are collectively referred to herein as “Users”.
- what information we may collect about you;
- what we use that information for;
- what third-party information, if any, you are agreeing to share by using the Services; and
- with whom we share that information.
2. Who May Use The Service?
3. Your Account
3.1. Registration. You do not need to create an account on the Services (an “Account”) to visit the public pages of the Services, however, you do need an Account to follow certain Brands or other Users, upload photos or videos, and purchase products via the Services. You may create an Account by completing the registration process set forth on the Website or App. You are responsible for providing and maintaining accurate contact information, including your name, email address, address, phone number, and payment information. You may access, edit and update your Account information at any time through the Service’s account management feature. Telephone calls, SMS and email correspondence with Mav Farm may be recorded or monitored.
3.2.Account Security. You (and your authorized staff, if any) are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any password and Account number provided by you or Mav Farm for accessing the Services. You are solely and fully responsible for all activities that occur under your password or Account. Mav Farm has no control over the use of your or any other User’s Account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security with respect to the Services, you will cease all use and contact Mav Farm immediately by emailing firstname.lastname@example.org.
4. Use of Services
4.4 Use Restrictions
(iii) you will not use the Services for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct; (iv) you will not use the Services to advertise, solicit or transmit unsolicited commercial email; (v) you will not use the Services to cause nuisance, annoyance or inconvenience; (vi) you will not impair the proper operation of the Services; (vii) you will not try to harm the Services in any way whatsoever; (viii) you will not copy, or distribute the Services or Content without written permission from Mav Farm; (ix) you will only use the Services for your own use and will not resell the Services to a third party; (x) you will keep secure and confidential your Account login information; and (xi) you will provide us with whatever proof of identity we may reasonably request.
(b) You agree to protect the Services, and their proprietary Content, information and other materials, from any unauthorized access or use, and you agree that you will not use the Services or such proprietary Content, information or other materials except as expressly permitted herein or expressly authorized in writing by Mav Farm. Except as specifically permitted herein or expressly authorized in writing by Mav Farm, you agree that you will not directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (ii) use the Services in any service bureau arrangement; (iii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services, any updates, or any part thereof in any form or manner or by any means; (iv) harvest or scrape any Content or data from the Service; (v) use the Services to (a) sell any advertising, sponsorships, or promotions placed on, around, or within the Services, other than as explicitly permitted by Mav Farm (such as compliant product placements), or (b) sell advertising, sponsorships, or promotions on any page of any website or application that only contains Content from the Services or where Content from the Services is the primary basis for such sales (for example, selling ads on a webpage where videos on the App are the main draw for users visiting the webpage); or (vi) permit any third party to engage in any of the acts described in clauses (i) through (v).
(c) You further understand and agree that you are not permitted to: (i) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Services; (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services); (iii) use any means to discover the source code of any portion of the Services; or (iv) otherwise circumvent any functionality that controls access to or otherwise protects the Services. Any attempt to do any of the foregoing is a violation of the rights of Mav Farm and its licensors. If you breach these restrictions, you may be subject to prosecution and damages. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Mav Farm is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Services.
4.5. Third-Party Services and Materials. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third-Party Materials”) or provide links to certain third-party websites. By using the Services, you acknowledge and agree that Mav Farm is not responsible for examining or evaluating the Content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials or web sites. Mav Farm does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third-Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third-Party Materials and links to other websites are provided solely as a convenience to you. In addition, third-party websites and services and Third-Party Materials that may be accessed from, displayed on or linked to from the Services are not available in all languages or in all countries. Mav Farm makes no representation that any third-party websites and services and Third-Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such services or Third-Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.
4.6.Open Source Software. The Services may contain or make use of certain open source software. There may be provisions in an open source license that expressly override some of these terms. Further information is available at:
5. Your Content
5.1. Uploading Content.If you have an Account, you may be able to post, upload, publish, submit or transmit Content to, or to be made available through, the Services. You may use your Content to promote your business or artistic enterprise. If you choose to upload Content, you must not submit to the Services any Content that does not comply with this Agreement or applicable law. For example, the Content you submit must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so. You are legally responsible for the Content you submit to the Services. We may use automated systems that analyze your Content to help detect infringement and abuse, such as spam, malware, and illegal content.
6. Purchase of Products
6.1. Purchasing Products. If you elect to purchase any products featured on the Services,you authorize Mav Farm to transmit your payment information to our third party payment processor to process the transaction. All information that you provide in connection with a purchase must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with the purchase of products at the prices in effect when such charges are incurred. You will pay any applicable taxes relating to such purchases or other monetary transaction interactions. Delinquent payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Mav Farm in collecting delinquent amounts, except where the delinquent amounts are due to billing inaccuracies.
6.2. Returns and Refunds. You may return many products sold on the Services. When you return a product, your refund and how your refund is issued may differ based on the condition of the product, how long you’ve had the product, how the product was purchased and the Brand’s or Retailer’s specific guidelines for refunds. For more specific info on returns and refunds, please refer to the Brand’s or Retailer’s refund policies located at their website or the refund info the Brand or Retailer provided in or together with the product’s original package. Returns and refunds of products picked up at a Retailer are subject to that Retailer’s policies.
7. Terms Applicable to Brands
7.1. Definitions. As used in this Section 7, an “Engagement” means the act of a Consumer adding a product to their shopping cart on the Services, and “Engagement Rate” means a percentage of the retail price of the product or products involved in an Engagement.
7.2. Collection and Remittance of Sales Amounts. When Consumers purchase products via the shopping cart functionality provided by the Services, Mav Farm collects the purchase price via its third party payment processor. By the end of each calendar month or sooner, Mav Farm then remits to each Brand an amount equal to the total sales of that Brand’s products on the Services that month minus Mav Farm’s costs or the total Cost per Engagement(s), which are calculated based on the Engagement Rate at the time of the Engagement.
Here’s an example. Consider the following situation:
a given Brand sells three different items on Mav Farm: Item A, Item B and Item C;
Item A has a retail price of $70 and receives 1,001 Engagements at an Engagement Rate of 10%;
Item B has a retail price of $120 and receives 92 Engagements at an Engagement Rate of 5%;
Item C has a retail price of $30 and receives 0 engagements at an Engagement Rate of 15%; and
Cost per Engagements would be calculated as follows:
($70 x 1,001 x 10%) + ($120 x 92 x 5%) + ($30 x 0 x 15%) = $7
The amounts of the Engagement Rates are set forth on the website application available to brands, publishers and any applicable user of Mav Farm. Mav Farm may lower or increase the Engagement Rate respective to any product category at any time without notice.
8. Terms Applicable to Retailers
8.1. Commissions. Mav Farm charges Retailers a commission at the end of each month for allowing Consumers to reserve and pick-up products locally at the Retailer’s locations. Retailers may subscribe to a monthly commissions plan that covers all reservations placed in that month, or elect for a commission to be assessed on each individual reservation. Note that commissions are assessed once the Consumer completes the reservation on the Services, and Mav Farm shall have no liability to Retailers if the Consumer does not actually complete the sale transaction by picking up the product at the Retailer location. More information about commissions rates and subscription plans is available on the Website at www.mav.farm/pricing.
8.2. Payment. If you subscribe to a monthly commissions plan or otherwise incur commission charges on the Services, you authorize Mav Farm to transmit your payment information to our third party payment processor to process the transaction. All information that you provide for such purpose must be accurate, complete, and current. You agree to pay all charges for your commissions plan or for commissions associated with reservations placed for products for pick-up at your retail locations, including all applicable taxes. Delinquent payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Mav Farm in collecting delinquent amounts, except where the delinquent amounts are due to billing inaccuracies. All commission payments are non-cancelable and non-refundable.
9. TERMS APPLICABLE TO INDIVIDUALS AND PUBLISHERS
WHEREAS, Individual is an individual creator of video or art in fashion, luxury, retail, sports, and the arts.
WHEREAS, Publisher is a creative agency, digital or physical magazine, media publisher, musician, or artist that conducts digital and print campaign production for clients in fashion, luxury, retail, sports, and the arts.
WHEREAS, Mav Farm owns and operates a proprietary business intelligence and e- commerce platform called Mav Farm Enterprise (the “Enterprise Platform”) and mobile application called .show (the “Mobile Platform”, and together with the Enterprise Platform, the “Platform”), which together offer a video creation and sharing tool and e-commerce marketplace.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
9.2 DEFINITIONS. For the purposes of this Agreement, capitalized terms shall have the meaning set forth in the preamble, recitals or the body of this Agreement.
9.3. INDIVIDUAL AND PUBLISHER MARKETING REQUIREMENTS.
(a) Video Deployment on the Platform. During the Term, Individual or Publisher shall invite its brand customers for whom Individual or Publisher has created branded video content to create an account to offer its products on the Platform through an e-mail link to be provided by Mav Farm. In the event that a brand customer creates an account on the Platform, Individual or Publisher shall deploy the branded video content created for such brand customer on the Platform (a “Published Video”). Each Published Video will contain links to enable a Platform user to view and purchase the applicable brand customer’s products featured in such Published Video through the shopping function in the Platform. Individual or Publisher hereby agrees that it shall not post any video content or other material on the Platform that directly or indirectly prompts users to visit a third-party e-commerce website or application. Mav Farm reserves the right to remove any Published Video or other material from the Mobile Platform at any time for any reason.
(b) Video Deployment on Individual or Publisher Channels. After a Published Video has been deployed on the Mobile Platform, Individual or Publisher is entitled to use the embed code for such Published Video to post such Published Video on Individual's or Publisher’s mobile and desktop website. Individual or Publisher may also deploy a Published Video on Individual or Publisher’s social media accounts or other digital channels, provided that all such deployments include a link or reference (including a “tag”, if applicable) to Mav Farm’s website and/or social media profile and clearly display Mav Farm’s brand.
9.4. FEES AND PAYMENT.
(a) Engagement Revenue Share. Mav Farm shall provide to Individual or Publisher a share of the revenue that Mav Farm receives from brand customers for the engagement of Platform users with such brand customers’ products through the Platform, calculated as follows:
- (i) Each instance of a user adding a product to its shopping cart in the Mobile Platform through a Published Video (whether such video is viewed by the user through the Mobile Platform or through Individual's or Publisher’s website or social media profile) shall constitute an “Engagement”.
- (ii) Mav Farm shall maintain a schedule on its Enterprise Platform setting forth the Engagement Rate for each category of products that may be featured in a Published Video. “Engagement Rate” means a percentage of the retail price of the product, which percentage is established by Mav Farm. Mav Farm may increase or decrease the Engagement Rate for any product category at any time in its sole discretion without notice to Individual or Publisher.
- (iii) Individual or Publisher shall be entitled to an amount equal to 60% of the Engagement Rate for each Engagement (the “Engagement Revenue Share”), provided that the percentage of the Engagement Rate owed to Publisher will be increased by 0.5% for each brand customer that Publisher causes to be on-boarded to the Platform for purposes of being a “Brand” (as defined in this Terms of Service), up to a maximum of 87.5% of the Engagement Rate for each Engagement. As an example of the calculation of the Engagement Revenue Share for one month: (a) Individual or Publisher includes three different products in Published Videos in one calendar month during the Term: Item A, Item B, and Item C; (b) Item A has a retail price of $70, receives 3001 Engagements and has an Engagement Rate of 0.25%; (c) Item B has a retail price of $120, receives 754 Engagements and has an Engagement Rate of 1.32%; (d) Item C has a retail price of $30, receives 0 Engagements and has an Engagement Rate of 0.78%; and (e) Individual or Publisher has caused four brands to be on-boarded to the Platform and is thus entitled to 62% of the Engagement Rate for each Engagement. The Engagement Revenue Share would be calculated as follows: (($70 x 3001 x 0.25%) + ($120 x 754 x 1.32%) + ($30 x 0 x 0.78%)) x 62% = $1,719.51.
(b) Invoices and Payment. Within ten (10) days of the end of each calendar month during the Term, Mav Farm shall pay to Individual or Publisher the Engagement Revenue Share for such prior month together with reasonably detailed calculations used in determining the Engagement Revenue Share.
9.5 Audit Rights. Each Party shall maintain complete and accurate records with respect to its obligations hereunder, and the other Party shall have the right to audit such records once during the Term upon at least ten (10) days prior written notice, and subject to any such auditor entering into a confidentiality agreement reasonably acceptable to the Party subject to audit.
9.6. INTELLECTUAL PROPERTY RIGHTS.
(a) License to Individual or Publisher. Subject to the terms and conditions of this Agreement, Mav Farm hereby grants to Individual or Publisher a personal, non-exclusive, non-transferable, revocable, limited license (without the right to sublicense) during the Term to (i) access and use the Platform, and (ii) use the MAV FARM, SHO_W and .SHOW names, logos, trademarks and service marks (the “Mav Farm Marks”), in each case, solely for the purposes set forth in this Agreement. Publisher shall use the Mav Farm Marks solely in accordance with any usage guidelines communicated by Mav Farm.
(b) License to Mav Farm. Subject to the terms and conditions of this Agreement, Individual or Publisher hereby grants to Mav Farm a non-exclusive, non-transferable (except pursuant to Section 9.14), irrevocable, limited license (without the right to sublicense) to (i) access, use, transmit, display, publish and distribute the Published Videos through the Platform and otherwise for its internal business purposes (including to market the Platform to potential brand and retailer customers), and (ii) use Individual or Publisher’s name, logo, trademarks and service marks (the “Individual and Publisher Marks”) on Mav Farm’s website and Platform during the Term. Mav Farm shall use the Individual or Individual and Publisher Marks solely in accordance with any usage guidelines communicated by Individual or Publisher.
- (i) As between the Parties, the Platform (excluding the Published Videos licensed from Individual or Publisher) and the Mav Farm Marks, including all intellectual property rights therein, are the exclusive property of Mav Farm. All rights in and to the Platform and the Mav Farm Marks not expressly granted to Individual or Individual or Publisher in this Agreement are reserved by Mav Farm. All use by Publisher of the Mav Farm Marks and any and all goodwill resulting therefrom shall inure to the sole benefit of Mav Farm. Individual or Publisher shall not contest the validity of the Mav Farm Marks or Mav Farm’s ownership thereof, and shall not use, seek to register, or cause any third party to seek to register any trademarks that are confusingly similar to the Mav Farm Marks that are licensed hereunder.
- (ii) As between the Parties, the Published Videos and the Individual and Publisher Marks, including all intellectual property rights therein, are the exclusive property of Individual or Publisher. All rights in and to the Published Videos and the Individual and Publisher Marks not expressly granted to Mav Farm in this Agreement are reserved by Individual or Publisher. All use by Mav Farm of the Individual and Publisher Marks and any and all goodwill resulting therefrom shall inure to the sole benefit of Individual or Publisher. Mav Farm shall not contest the validity of the Individual and Publisher Marks or Individual or Publisher’s ownership thereof, and shall not use, seek to register, or cause any third party to seek to register any trademarks that are confusingly similar to the Individual and Publisher Marks that are licensed hereunder.
(a) Obligations. “Confidential Information” means any and all technical and non- technical information of a confidential nature that either Party (the “Disclosing Party”) provides the other Party (the “Receiving Party”) hereunder, including trade secrets, know-how, firmware, designs, schematics, techniques, software code, technical documentation, specifications, plans or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plan or financial or personnel matter relating to the Disclosing Party, its present or future products, sales, suppliers, customers, employees, investors or business, whether in written, oral, graphic or electronic form. The Parties expressly acknowledge and agree that all Confidential Information shall be maintained by each Receiving Party in confidence, using the same degree of care to preserve the confidentiality of such Confidential Information that the Receiving Party would use to preserve the confidentiality of its own information of a similar nature and in no event less than a reasonable degree of care. Except as authorized in writing by the Disclosing Party, the Receiving Party may not use or disclose or permit to be disclosed any Confidential Information of the Disclosing Party to any Person, (a) except as may be reasonably required in connection with the performance or receipt of services hereunder by Seller or Purchaser, as the case may be, and (b) except to the Receiving Party’s agents or representatives who are informed by the Parties of the confidential nature of the information and are bound to maintain its confidentiality.
(b) Exceptions. The obligation not to disclose information under Section 9.7.a shall not apply to information that the Receiving Party can demonstrate (a) is or becomes generally available or in the public domain through no fault of the Receiving Party, (b) was in the Receiving Party’s possession free of any obligation of confidentiality at the time it was communicated to the receiving Party by the other Party, (c) becomes available to the Receiving Party on a non-confidential basis from a source that is not known by the Receiving Party to be bound by confidentiality agreements regarding the disclosure of such information, (d) is independently developed by the Receiving Party without use of or reliance on the Disclosing Party’s Confidential Information, or (e) is required to be disclosed pursuant to a governmental order or decree or other legal requirement, provided that the Receiving Party shall give the Disclosing Party prompt notice thereof prior to such disclosure and, at the request and expense of the Disclosing Party, shall cooperate in all reasonable respects in maintaining the confidentiality of such information, including obtaining a protective order or other similar order. Nothing in this Section 9.7.b shall limit in any respect either Party’s ability to disclose information in connection with the enforcement by such Party of its rights under this Agreement.
9.8 REPRESENTATIONS AND WARRANTIES.
(a) Each Party hereby represents, warrants and covenants to the other Party that as of the date hereof and continuing throughout the Term that: (a) it has full power and authority to enter into, and carry out its obligations under, this Agreement and to grant the rights and licenses granted by it to the other Party in this Agreement, (b) its execution, delivery and performance of this Agreement does not and will not result in any breach or contravention of, any contractual obligation to which it is a party, any third party’s intellectual property rights, or any order, injunction, writ or decree of any governmental authority to which it or its property is subject, and (c) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
(b) Individual or Publisher hereby represents, warrants and covenants to Mav Farm that (i) the Published Videos and the access, use, transmission, display, publishing and distribution of the Published Videos in accordance with the terms hereof do not and will not infringe, dilute, misappropriate or otherwise violate the intellectual property rights of any third party; (ii) Individual or Publisher has all necessary rights to license the Published videos to Mav Farm as licensed hereunder; (iii) (the Individual or the Individual or Publisher has obtained all consents, waivers or otherwise as required by applicable law; (iv) the Published Videos shall be free from any material defect, any illegal, fraudulent, unethical or obscene content, and any virus, trojan horse, worm, backdoor, or other malicious code or any software the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems or software or any data contained therein or transmitted thereby; and (v) in its performance under this Agreement, Individual or Publisher will abide by all applicable local, state, national, and international laws, rules, and regulations, including without limitation, all applicable laws and regulations related to data privacy, data protection or the other processing of data.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) OR STATUTORY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
(a) Indemnification by Individual or Publisher. Individual or Publisher shall defend, indemnify and hold harmless Mav Farm and its affiliates and its and their respective officers, directors, agents and employees from and against any and all claims, demands, complaints, liabilities, losses, damages, and all costs and expenses (including reasonable legal fees) (collectively, “Losses”) suffered in connection with any third party claims, to the extent such claims arise out of or relate to (a) Individual's or Publisher’s gross negligence or willful misconduct related to this Agreement or (b) allegations of intellectual property infringement arising out of the deployment or use of the Published Videos or Individual and Publisher Marks in accordance with the terms of this Agreement.
(b) Indemnification Procedures. If any claim or action is asserted against Mav Farm or any of its affiliates or one of its or their officers, directors, agents or employees (as applicable, the “Indemnified Party”) that would entitle such Indemnified Party to indemnification pursuant to this Section 9.9, (a “Proceeding”), the Indemnified Party will give prompt written notice thereof to Individual or Publisher; provided, however, that the failure of any Indemnified Party to give timely notice hereunder will not affect its rights to indemnification hereunder, except to the extent that Individual or Publisher demonstrates actual damage caused by such failure. Individual or Publisher may elect to direct the defense or settlement of any such Proceeding by giving written notice to the Indemnified Party, which election will be effective immediately upon receipt by the Indemnified Party of such written notice of election. Individual or Publisher will have the right to employ counsel reasonably acceptable to the Indemnified Party to defend any such Proceeding, or to compromise, settle or otherwise dispose of the same, if Individual or Publisher deems it advisable to do so, all at the expense of Individual or Publisher; provided that Individual or Publisher will not settle, or consent to any entry of judgment in, any Proceeding without obtaining either: (a) an unconditional release of the Indemnified Party from all liability with respect to all claims underlying such Proceeding; or (b) the prior written consent of the Indemnified Party. An Indemnified Party will not settle, or consent to any entry of judgment in, any Proceeding without obtaining the prior written consent of Individual or Publisher. Individual or Publisher and each Indemnified Party will fully cooperate with each other in any such Proceeding and will make available to each other any books or records useful for the defense of any such Proceeding.
9.10 LIMITATIONS OF LIABILITY. WITH THE EXCEPTION OF A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.9 AND LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 9.7, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR ANY PARTY CLAIMING THROUGH SUCH OTHER PARTY) FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, UNINTERRUPTED ACCESS, OR INTERRUPTION OF BUSINESS IN ANY WAY ARISING OUT OF OR RELATED TO THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR THE FORESEEABILITY OF SUCH DAMAGES AND (B) EACH PARTY’S AGGREGATE LIABILITY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED THE AMOUNT PAID BY MAV FARM TO INDIVIDUAL OR PUBLISHER IN ACCORDANCE WITH THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD PRIOR TO THE EVENT GIVING TO RISE TO THE CLAIM FOR DAMAGES.
9.11. TERM AND TERMINATION.
(a) Term of Agreement. The initial term of this Agreement shall begin on the date first set forth above and shall continue for a period of three (3) months (the “Initial Term”). Thereafter, this Agreement shall automatically renew for additional three (3) month renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either Party provides the other Party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
(b) Termination for Cause. Either Party may terminate this Agreement if the other Party is in breach of a material obligation of this Agreement and has failed to cure such breach within thirty (30) days of its receipt of written notice from the non-breaching Party describing such breach. In the event that either Party files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within sixty (60) days of the filing thereof, the other Party may terminate this Agreement effective immediately upon written notice to such Party, to the extent permitted by applicable law.
(c) Effect of Termination; Survival. Upon termination or expiration of this Agreement for any reason, if Individual or Publisher desires that any Published Videos be removed from the Platform or any other digital channels where Individual or Publisher has deployed such videos, then Individual or Publisher shall remove such Published Videos at its sole cost and expense. For the avoidance of doubt, Mav Farm shall have no responsibility for removing any Published Videos from the Platform or any other channels upon expiration or termination of this Agreement. Upon termination or expiration of this Agreement for any reason, Mav Farm’s payment obligations under Section 9.4 that have not accrued as of the date of termination or expiration shall terminate in their entirety, including, for the avoidance of doubt, in the event that Individual or Publisher fails to remove any Published Videos from the Platform. The following provisions of this Agreement shall survive its termination: Section 9.2, Section 9.6.c, Sections 9.7 through 9.10, this Section 9.11.c and Section 9.12.
(a) Independent Development. Except as expressly set forth herein, nothing in this Agreement will impair either Party's right to develop and sell products and services performing the same or similar functions as the products and services of the other Party covered by this Agreement, or to market and distribute such similar products and services, providing that such activities do not violate the terms of this Agreement, including the provisions regarding confidentiality and intellectual property ownership.
(b) No Agency. It is agreed and understood that neither Party is the agent, representative or partner of the other and neither Party has any authority or power to bind or contract in the name of or to create any liability against the other in any way or for any purpose pursuant to this Agreement. Nothing contained in this Agreement shall be construed to give either Party the power to direct and control the day-to-day activities of the other, constitute the parties as partners, joint venturers, principal and agent, employer and employee, co-owners, or otherwise as participants in a joint undertaking, or allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.
(c) Force Majeure. Neither Party shall be liable for any failure to perform its obligations under this Agreement due to a force majeure event during the Term, including but not limited to an act of God, flood, earthquake, fire, explosion, interruption or defect in the supply of electricity or water, act of government, war, acts of terror, civil commotion, insurrection, embargo, riots, lockouts, inability to obtain raw materials, or labor disputes.
(d) Notices. All notices, requests and other communications required or permitted under, or otherwise made in connection with, this Agreement, shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) upon receipt after dispatch by registered or certified mail, postage prepaid, or (c) on the next business day if transmitted by national overnight courier (with confirmation of delivery), in each case, addressed as follows:
if to Mav Farm, to:
Mav Farm Inc.
1837 N. La Brea #12
Los Angeles, CA 90046
Attention: General Counsel
if to Individual or Publisher, to:
such other address as such Party may hereafter specify for the purpose by notice to the other Party.
9.13 Amendments and Waivers.
(a) Any provision of this Agreement may be amended or waived but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each Party to this Agreement or, in the case of a waiver, by the Party against whom the waiver is to be effective.
(b) No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable law.
9.14 Binding Effect; Benefit; Assignment.
(a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any person or entity other than the Parties and their respective successors and assigns.
(b) Neither Party may assign this Agreement, or any of its rights of obligations hereunder, without the other Party’s prior written consent; provided, however, that Mav Farm shall have the right to assign or otherwise transfer its rights and obligations under this Agreement without Individual or Publisher’s consent to (i) one of its affiliates or (ii) any entity that acquires (whether by merger, reorganization, acquisition, sale or otherwise) all or substantially all of the business or assets of Mav Farm to which this Agreement relates.
9.15 Governing Law and Jurisdiction. The rights and obligations of the Parties under this Agreement shall be governed in all respects by the laws of California without regard to conflict of law principles. The Parties agree that all disputes arising hereunder shall be adjudicated in the state and federal courts having jurisdiction over disputes arising in San Francisco, California and hereby agree to consent to the personal jurisdiction of such courts. Without limiting the foregoing, each Party agrees that service of process on such Party as provided in Section 9.13 shall be deemed effective service of process on such Party.
9.16 Counterpart; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party shall have received a counterpart hereof signed by the other Party. Until and unless each Party has received a counterpart hereof signed by the other Party, this Agreement shall have no effect, and no Party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in .PDF format or by facsimile shall be sufficient to bind the Parties to the terms and conditions of this Agreement.
9.17 Entire Agreement. This Agreement and the TOS constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both oral and written, between the Parties with respect to the subject matter hereof.
10.OWNERSHIP OF THE SERVICES
10.2. Feedback and Revisions. Any and all (i) suggestions for correction, change and modification to the Services and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to Mav Farm by you (collectively “Feedback”), and all (ii) improvements, updates, modifications or enhancements, whether made, created or developed by Mav Farm or otherwise relating to the Services (collectively, “Revisions”), are and will remain the property of Mav Farm. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of Mav Farm and Mav Farm may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Mav Farm any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At Mav Farm’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
11.DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
11.1.Warranty Disclaimer. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD-PARTY MATERIALS, SOFTWARE OR SERVICES CONTAINED THEREIN OR OFFERED IN CONNECTION THEREWITH) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MAV FARM HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. MAV FARM DOES NOT WARRANT THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (D) DEFECTS IN THE SERVICES CAN OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY MAV FARM OR ITS AUTHORIZED REPRESENTATIVE SHALL BE DEEMED TO CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
12.DIGITAL MILLENNIUM COPYRIGHT ACT.
12.1. Anyone who believes that his or her work has been reproduced on the Services in a manner which constitutes copyright infringement may submit a notification to Mav Farm’s copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”) by providing all of the following information in writing: (1) identification of the copyrighted work that is claimed to be infringed; (2) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service; (3) information for Mav Farm’s copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address; (4) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; (5) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and (6) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by indicating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
12.2. Notices of copyright infringement claims should be sent by mail to 1837 N La Brea, Apt. 12, Los Angeles, CA 90046, or by email to email@example.com. Mav Farm will respond expeditiously to claims of copyright infringement that are reported to Mav Farm’s copyright agent in the manner explained above. It is Mav Farm’s policy, in appropriate circumstances and at its discretion, to disable or terminate the Accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
12.3.If you believe that any of Your Content that was removed (or to which access was disabled) after Mav Farm received a notice of copyright infringement is not actually infringing, or thatyou have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may send a counter-notice containing all of the following information to Mav Farm’s copyright agent: (1) your physical or electronic signature (with your full legal name); (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief, under penalty of perjury, that the content was removed or disabled as a result of mistake or a misidentification of the content; (4) your name, address, telephone number, and email address; and (5) a statement that you will accept service of process from the person who provided the original notification of the alleged infringement.
12.4.If a counter-notice is received by Mav Farm’s copyright agent, Mav Farm may send a copy of the counter-notice to the original complaining party informing that person that Mav Farm may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) business days or more after receipt of the counter-notice, at Mav Farm’s sole discretion. Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.
12.5.Further information on the DMCA can be found in 17 U.S.C. 512 or on the United States Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf.
13. Arbitration and Class Action Waiver
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
13.1. Informal Process First. You agree that in the event of any dispute between you and Mav Farm, you will first contact Mav Farm and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
13.4. Arbitration Rules. If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to 1837 N La Brea, Apt. 12, Los Angeles, CA 90046. The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA’s Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
13.5. Conduct of the Arbitration. The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
13.6. Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If you are an individual and have not accessed or used the Services on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
13.7. Interpretation. The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
13.8.Opting-Out. If you do not want to arbitrate disputes with Mav Farm and you are an individual, you may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the first of the date you access or use the Services.
13.9.Class Action Waiver. Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration. If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Mav Farm each waive any right to a jury trial.
14. General Provisions
14.3.Export Laws. You agree that you will not export or re-export, directly or indirectly the Services and/or other information or materials provided by Mav Farm hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Services for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
14.4. U.S. Government Restricted Rights. The Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R.
§12.212 or 48C.F.R.§227.7202, as applicable. Consistent with 48C.F.R.§12.212 or 48C.F.R.
§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.