MARKETPLACE SELLER AGREEMENT
This marketplace seller agreement (the “Agreement”) is entered into between Basis Finance Inc., 548 Market St, PMB 60414, San Francisco, CA 94104 USA (“Basis”) and the legal entity that accepted this Agreement (“Seller”). This Agreement may be accepted by manual signature or electronic signature, or through an electronic system specified by Basis. Using any Marketplace Service indicates that Seller has read, understood and accepted this Agreement. If Seller does not accept this Agreement, Seller must not use any Marketplace Service.
“Buyers” means designated entities interested in buying a Seller Product through the Marketplace.
“Marketing Material” means any documents, information, and other content provided by or on behalf of Seller for or in connection with the marketing and/or provision of the Seller Product. Marketing Material includes trademarks, designations and logos in the form provided by Seller to Basis (with any modifications to optimize their viewing). Marketing Material is part of the Seller Product.
“Marketplace” means an online marketplace operated by or on behalf of Basis allowing Seller to Promote and/or Transact Seller Products, e.g. available at www.basis.so.
“Marketplace Seller Guide” means the guide made available to Seller, as it may be updated by Basis from time to time.
“Marketplace Services” means the services provided by Basis to enable Seller to engage in the Promotion of Seller Products set forth in an Order.
“Order” means an order form or similar ordering document that (i) incorporates the terms of this Agreement and sets forth the Marketplace Services ordered by Seller and any associated fees and (ii) has been agreed by Seller by manual or electronic signatures or agreed through an electronic system specified by Basis and accepted by Basis.
“Party” means Seller and/or Basis, depending on the context.
“Promote” or ”Promotion” means listing the Seller Products on the Marketplace and linking to the Seller where buyers can obtain or purchase the Seller Products directly from Seller.
“Seller Product” means any software and/or service Seller Promotes to Buyers through the Marketplace and content description information and any related Marketing Material.
“Subscription Term” means the time period specified in the Order for which a Marketplace Service is made available to Seller. Any renewal constitutes a new Subscription Term.
2. ORDERS; FEES; TAXES
2.1. Ordering. The Parties may enter into one or more Orders under this Agreement. Each Order is binding on the Parties and is governed by the terms of this Agreement.
2.2. Taxes. All fees are exclusive of any taxes and any other charges. Seller agrees to pay or reimburse Basis for the payment of any applicable taxes or duties including, but not limited to, sales taxes, value added taxes, goods and services taxes, consumption taxes, or any other charge that is imposed by any government authority on Seller’s use of any Marketplace Service.
3. PROVISION OF MARKETPLACE SERVICES; RIGHTS AND RESPONSIBILITIES
3.1. Eligibility. Seller needs to meet the following eligibility requirements in order to Promote or Transact the Seller Product through the Marketplace. Seller needs to: (i) have a valid Seller Account; and (ii) meet any other eligibility requirements specified in the Marketplace Seller Guide.
3.2. Submission. Seller is responsible for (i) the evaluation and testing of the Seller Product as to its technology, functionality, performance, security, and user interface; (ii) compliance of the Seller Product with the Marketplace Seller Guide and any other requirements set out in this Agreement; and (iii) Seller’s successful completion of any technical self-certification process made available by Basis.
3.3. Review. Basis reserves the right to review each Seller Product itself or through a subcontractor, and Basis may accept or reject it for any reason. Basis shall not be obliged to conduct any such review. Neither any review nor the lack thereof shall constitute or be communicated by Seller to be an endorsement of the Seller Product by Basis. Additional terms regarding Basis’s review standards and processes may be set out in the Marketplace Seller Guide. Seller agrees to cooperate with Basis in the review process and provide information and materials reasonably requested by Basis, including information on the operation of Seller’s business. Basis may adopt and change its review standards and processes at any time and as Basis deems appropriate. Any of Seller’s non-public information to which Basis obtains access in the course of the review will be considered Basis’s Confidential Information.
3.4. Placement; No Guarantee. The type of placement, category or order in which the listing of a Seller Product will be made available on the Marketplace is subject to Basis’s sole discretion. Basis does not guarantee that any Seller Product listed on the Marketplace will sell, that Seller will make any particular amount of money in promoting or selling Seller Products on the Marketplace, or that any Buyers will complete any Transaction with Seller or be able to pay for the Seller Products.
3.5. Responsibility for the Seller Product. Seller is responsible for the Seller Product(s) and any related Marketing Material. Seller in particular represents and warrants the following: (i) Seller owns all rights necessary to distribute each Seller Product listed on the Marketplace as contemplated by this Agreement; (ii) each Seller Product conforms in all material respects to the description and documentation made available by Seller on the Marketplace and otherwise; (iii) no Seller Product infringes any third party’s intellectual property rights; (iv) each Seller Product (including information about applicable fees) and all Marketing Material are, at all times, accurate, complete, not misleading, and in compliance with applicable law and the terms of the Agreement, and in particular comply
with privacy and data protection laws and meet any security or other standards of the industries for which they are intended or useful; and (v) each Seller Product can be legally distributed in the countries where the Marketplace is available in accordance with the Export Laws applicable to such distribution.
3.6. Maintenance and Removal. Basis reserves the right to remove the listing of a Seller Product if it does not meet the requirements set out in this Agreement or the Marketplace Seller Guide. Basis may also request Seller to update a Seller Product within a time period determined by Basis to ensure that it complies with such requirements. Seller may remove the listing of a Seller Product from the Marketplace at any time in accordance with the Marketplace Seller Guide. Any removal by Seller of the listing of a Seller Product from the Marketplace will apply to prospective Buyers only and Seller will continue to enable Buyers with a running subscription to the Seller Product to use the Seller Product (including related support) after removal of the listing until all then-current subscriptions terminate.
3.7. Insurance. On Basis’s request, Seller will provide Basis with information about insurance policies that Basis may have in place for the Seller Product(s). Basis may require Seller to obtain and maintain, at Seller’s own cost and expense, certain levels of insurance for certain types of Seller Products.
3.8. Seller of Record; Contracts. Seller will be the licensor and seller of record for the Seller Product(s). Seller will establish the pricing, license rights and other terms governing Buyers’ use of a Seller Product. Seller shall include express provisions in the contract with Buyers which state: (i) Seller’s company name and address and the contact information (telephone number, e-mail address) to which any questions, complaints, or claims with respect to the Seller Product should be directed; (ii) that the contract is only between Seller and Buyer and not between Basis and Buyer. Seller shall remain fully responsible for the enforceability and enforcement of the contract and its compliance with laws.
3.9. Support; User Documentation. Seller is solely responsible for providing support (if any) for the Seller Product(s). If Basis receives support queries relating to a Seller Product, Basis will forward such queries to Seller. Seller will provide Buyers with user documentation that accurately reflects the functionalities of the Seller Product, including security safeguards.
3.10. Ratings and Feedback. Basis may implement mechanisms that rate, or allow Buyers to rate, and provide feedback about a Seller Product, Seller’s performance in connection with a Seller Product and the Marketplace. Basis may make these ratings and feedback publicly available.
3.11. Buyer’s Data. Seller shall inform Buyers of and, where legally required, obtain their consent for any collection, storage, processing, modification, disclosure, or other use of Buyers‘ data in connection with the Seller Product. Where required, Seller shall conclude adequate data protection terms with Buyers.
3.12. Rights in the Marketplace and Marketplace Services. All rights, title, and interest in and to the Marketplace and the Marketplace Services, including any know-how and any part and improvement thereof, and all intellectual property rights in or to the foregoing shall remain wholly vested in Basis, its affiliates, its business partners, and/or licensors.
3.13. Rights in the Seller Product. During the term of this Agreement and for as long as Buyers are permitted to use the Seller Product(s) Promoted or Transacted on the Marketplace, Seller grants Basis and its business partners a worldwide, nonexclusive, transferable, sub-licensable, royalty-free right to: (i) list, promote, distribute and otherwise digitally make available the Seller Product(s) on the Marketplace; (ii) use Seller’s Marketing Material as authorized by Seller; and (iii) access, display, promote, and otherwise use the Seller Product(s) in connection with demonstrating it to potential Buyers.
3.14. Records; Information Obligations and Audit. Seller will maintain records specifically identifying the number and identity of Buyers, along with all contracts. Seller will provide information or other materials that Basis reasonably requests to verify Seller’s compliance with this Agreement and its contractual obligations as a provider of Seller Products. Basis may, during regular business hours and upon reasonable advance notice, conduct an audit of Seller’s compliance with this Agreement. Seller will permit Basis or its authorized agents to access facilities, workstations, and servers and take all commercially reasonable actions to assist Basis in determining compliance with this Agreement. Basis and its agents will comply with reasonable security procedures communicated to Basis while on Seller’s premises.
3.15. Changes. As the Marketplace evolves over time, Basis reserves the right to change this Agreement or any Marketplace Service provided hereunder from time to time. Basis will notify Seller of any material changes at least 60 days prior to the change effective date specified in the notice. If the change has a material adverse impact on Seller and Seller does not agree to the change, Seller may terminate the affected Order(s) 30 days prior to the change effective date.
4. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
4.1. Disclaimer. Except as otherwise expressly set forth in this Agreement, the Marketplace Services are provided “AS IS” and Basis disclaims all warranties including, without limitation, the implied warranties of merchantability and fitness for a particular purpose. Basis does not warrant or otherwise guarantee that (a) reported errors will be corrected or support requests will be resolved to meet Seller’s needs, (b) Marketplace or Marketplace Services will be uninterrupted, error free, fail-safe, fault-tolerant or free of harmful components. Representations about Marketplace or Marketplace Services or features or functionality in any communication with Seller constitute technical information, not a warranty or guarantee.
4.2. Limitation of Liability.
4.2.1. The entire, aggregate liability of Basis related in any way to this Agreement will be limited to the fees paid to Basis for the
Marketplace Service that gave rise to the liability during the 12 month period before the first event giving rise to the claim occurred.
4.2.2. In no event will Basis be liable for (i) any indirect, incidental, consequential, special, exemplary or punitive damages, loss of production or data, interruption of operations, or lost revenue or profits, even if such damages were foreseeable, or (ii) any No-Charge-Services or Previews.
4.2.3. Basis will not be liable for any claim in connection with this Agreement if such claim is brought more than two years after the first event giving rise to such claim is or should have been discovered by Seller.
4.2.4. The foregoing limitations and exclusions apply (i) to the benefit of Basis and its affiliates, and their respective officers, directors and licensors, subcontractors, and representatives, and (ii) regardless of the form of action, whether based in contract, statute, tort (including negligence) or otherwise.
4.2.5. The foregoing limitations and exclusions will not apply to the extent that liability cannot be limited or excluded according to applicable law.
4.3.1. General. Seller will indemnify, defend and hold harmless Basis and its suppliers and contractors and each of their respective employees, officers, directors, and representatives from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorney’s fees) arising from or in connection with: (i) the Seller Product and/or its promotion or sale on the Marketplace; (ii) any violation of laws or rights of others by Seller’s use of the Marketplace Services; (iii) any breach by Seller of this Agreement; (iv) any breach of Seller’s representations or warranties set forth in this Agreement; (v) the use of Seller’s trademarks, designations and logos as authorized by Seller; and (vi) any claim or demand for (1) payment of any taxes imposed in connection with any Transaction, (2) any fines, penalties, or similar charges imposed as a result of Seller’s failure to collect, remit or report any taxes in connection with any Transaction, or (3) any fines, penalties, or similar charges imposed as a result of Transaction cancellations, chargebacks, Buyer complaints or Seller’s breach of its obligations under its agreement with Payment Processor.
4.3.2. Process. Basis will promptly notify Seller of any claim subject to Section
5.3.1, but Basis’s failure to promptly notify Seller will only affect Seller’s obligations under Section 5.3.1 to the extent that Basis’s failure prejudices Seller’s ability to defend the claim. Seller may: (i) use counsel of Seller’s own choosing (subject to Basis’s written consent) to defend against any claim; and
(ii) settle the claim as Seller deems appropriate, provided that Seller obtains Basis’s prior written consent before entering into any settlement. Basis may also assume control of the defense and settlement of the claim at any time and charge all reasonable costs for such defense from Seller.
5. RENEWAL; TERMINATION; SUSPENSION
5.1. Subscription and Renewals. If indicated on the Order or as otherwise agreed by the Parties in writing or in an electronic system made available by Basis, the Subscription Term for the applicable paid Marketplace Service will automatically renew for successive Subscription Terms unless either Party notifies the other Party at least 60 days prior to the end of the then-current Subscription Term that it has elected not to renew. Any renewed Subscription Term will be the same length as the preceding term or 12 months, whichever is greater. The then-current Marketplace Seller Agreement (or successor terms) at www.basis.so/terms/marketplace for the following Subscription Term in lieu of this Agreement. The fees during any renewed Subscription Term will be the same as those charged during the preceding Subscription Term, unless (i) Basis notifies Seller about different future fees at least 90 days prior to the end of the then-current Subscription Term or (ii) fees for the renewed Subscription Term(s) are specified on the Order.
5.2. Termination. Basis may terminate an Order or this Agreement for convenience at any time. Either Party may terminate an Order for a particular Marketplace Service with immediate effect in the event of the other Party’s material breach of this Agreement which remains uncured for a period of 30 days from receipt of notice specifying the breach by the other Party; provided that such termination will only be effective with respect to the Marketplace Service affected by the material breach. Basis may immediately terminate any or all Orders or this Agreement upon notice to Seller (i) for reasonable cause, including, without limitation, Seller’s non-compliance with the Marketplace Seller Guide, Seller’s filing for bankruptcy or having bankruptcy proceedings filed against it, Seller ceasing to do business, termination of the agreement between Seller and Payment Processor, or any breach by Seller of Sections 2.2, 3, 7, or 8, or (ii) in order to comply with applicable law or the requests of government authorities.
5.3. Effect of Termination. Upon expiration of the applicable Subscription Term (if not seamlessly renewed) or termination of any Order for one or more Marketplace Services or this Agreement for any reason, all of Seller’s rights to access, use or receive the affected Marketplace Service(s) automatically terminate. Seller will immediately cease using the affected Marketplace Service(s), and remove and destroy all copies of Basis’s Confidential Information, and certify such removal and destruction in writing to Basis. After termination, Basis will remove the listing of the Seller Products from the Marketplace, unless otherwise agreed in writing. Termination of this Agreement or any Order for one or more Marketplace Services will not relieve Seller of its obligation to pay the total fees set forth in any Order, which fees will become due and payable immediately upon termination. No refund or credit will be given as a result of any termination under Section 6, except that in case of Seller’s termination for Basis’s material breach or Basis’s termination for convenience in accordance with Section 6.2, Basis will refund a reasonable portion of any prepaid fees on a pro-rata basis for the remainder of the Subscription Term for the affected Marketplace Service(s). Sections 2.2, 2.3, 3.5, 5, 6.3, 7, 8 and 9 survive termination of this Agreement.
5.4. Suspension. Basis may suspend or limit Seller’s access to and use of the Marketplace or Marketplace Services, in whole or in part, immediately (i) if Basis reasonably determines that the use of the Marketplace or Marketplace Services poses a security risk to the Marketplace, the Marketplace Services, to Basis or to any third party, or subjects Basis or any third party to liability, (ii) if Seller materially breaches this Agreement, or (iii) upon the occurrence of any of the circumstances that give Basis the right to immediate termination under Section 6.2. The suspension or limitation may be made in addition to any other rights available to Basis under this Agreement, will not relieve Seller of its obligation to pay any fees, and will be lifted when the reason for such suspension or limitation no longer exists.
6.1. Confidentiality Obligations. “Confidential Information” means all information disclosed by one Party or any of its affiliates or subcontractors to the other Party under this Agreement that is marked as confidential or the confidential nature of which is evident to a reasonable person. Basis’s Confidential Information includes the terms of this Agreement and any Order, the Marketplace Services, the Marketplace, Basis’s intellectual property rights, and any information Seller derives from benchmarking the Marketplace Services. The receiving Party will (i) not disclose Confidential Information, except (1) on a need-to-know basis to its and its affiliates’ employees, consultants, contractors, and financial, tax and legal advisors that are bound by confidentiality obligations and use restrictions at least as restrictive as those in this Agreement, or (2) as otherwise authorized by the disclosing Party or this Agreement, (ii) use Confidential Information only as required to exercise or enforce rights or perform obligations under this Agreement, and (iii) use reasonable care to protect against unauthorized use and disclosure of the disclosing Party’ Confidential Information. The receiving Party will be liable for compliance with Section 8 by each of its recipients. Basis and its affiliates may name Seller as a customer on their websites and in customer lists and other marketing materials.
6.2. Exclusions. The foregoing confidentiality obligations will not apply to any Confidential Information that (i) is or becomes generally available to the public other than as a result of disclosure by the receiving Party in violation of this Agreement; (ii) becomes available to the receiving Party from a source other than the disclosing Party, provided that the receiving Party has no reason to believe that such source is itself bound by a legal, contractual, or fiduciary obligation of confidentiality; (iii) was in the receiving Party’s possession without an obligation of confidentiality prior to receipt from the disclosing Party; (iv) is independently developed by the receiving Party without the use of, or reference to, the disclosing Party’s Confidential Information; or (v) is required to be disclosed by a governmental authority or law, so long as the receiving Party promptly provides the disclosing Party with written notice of the required disclosure, to the extent such notice is permitted by law, and cooperates with the disclosing Party to limit the scope of such disclosure.
7. GENERAL PROVISIONS
7.1. Assignment. This Agreement will extend to and be binding upon the successors, legal representatives, and permitted assignees of the Parties. However, this Agreement and the rights granted under this Agreement may not be assigned, sublicensed, or otherwise transferred (by operation of law or otherwise) by Seller without the prior written consent of Basis. Any attempted assignment in violation of this Section will be void.
7.2. Force Majeure. Neither Party will be liable for delay or failure to perform any obligations under this Agreement (except with respect to any payment obligations) due to any cause beyond its reasonable control. The delayed Party will promptly notify the other Party of any such event.
7.3. Notices. Basis may notify Seller under this Agreement by sending an email or other text message to the address or contact number provided by Seller for business. Notices to Basis shall be sent to email@example.com. Notwithstanding the foregoing, notices of claims or notices regarding disputes shall always be sent to the Party’s address as specified in the applicable Order. A Party may change its address for receipt of notice by delivery of written notice to the other Party.
7.4. Governing Law and Jurisdiction. This Agreement shall be subject to the applicable laws of the State of Delaware, United States. Any dispute arising out of or in connection with this Agreement shall be subject to the jurisdiction of the courts of the State of Delaware, United States. Each Party hereby irrevocably submits itself to the personal jurisdiction of the relevant court of the State of Delaware for any such disputes. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Section shall restrict the right of the Parties to seek interim relief intended to preserve the status quo or interim measures in any court of competent jurisdiction. Notwithstanding the foregoing, to the extent permissible under applicable laws and to the extent it would not result in the invalidity or inapplicability of this Section, the Parties agree that Basis, at its sole discretion, may bring an action in the courts of the jurisdiction(s) where the Marketplace Services are being used or Seller has its place of business, (i) to enforce its intellectual property rights; or (ii) for the payment of the fees related to a Marketplace Service.
7.5. No Waiver; Validity and Enforceability. The failure to enforce any provision of this Agreement will not be construed as a waiver of such provision. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions will not be affected, and such provision will be deemed to be restated to reflect the original intentions of the Parties as nearly as possible in accordance with applicable law. The Parties agree that electronic signatures or acceptance of this Agreement via an electronic system specified by Basis will have the same force and effect as manual signatures.
7.6. Publicity. Except as may be required by applicable law, neither Party shall issue a press release in connection with the subject matter hereof without the prior written consent of the other Party, which shall not be unreasonably withheld.
7.7. Entire Agreement and Order of Precedence. This Agreement constitutes the full and complete agreement between the Parties with respect to the subject matter thereof and supersedes any previous or contemporaneous agreements or communications, whether written or verbal, relating to such subject matter. The reference to a document that refers to another document shall be deemed to also include such other document, unless otherwise stated therein. Subject to Section 3.18, the Agreement may not be varied other than in writing executed by manual signatures or electronic signatures of authorized representatives of both Parties or via an online mechanism, if so provided explicitly for such purpose by Basis. No other terms and conditions shall apply. In the event of a conflict between this Agreement and the Marketplace Seller Guide, this Agreement prevails. In the event of a conflict between this Agreement and an Order, the Order prevails with respect to any Marketplace Service ordered thereunder. The terms of any purchase order or similar Seller document are excluded and such terms will not apply to any Order, and will not supplement or modify this Agreement irrespective of any language to the contrary in such document.
7.8. Independent Contractors. For all purposes, the Parties will be deemed to be independent contractors, and nothing contained in this Agreement will be deemed to constitute a joint venture, partnership, employer-employee relationship, or other agency relationship. Unless otherwise stated herein, neither Party is, nor will either Party hold itself out to be, vested with any power or right to contractually bind or act on behalf of the other Party.