Marketplace Supplier Agreement

Last Updated: August 19, 2021

This Marketplace Supplier Agreement (“Agreement”) contains the terms and conditions that governs your access to the Avvinue, Inc. Website accessible at the address https://www.avvinue.com/ and / or any suffixes and / or access fields that refer to this address, as well as via any shortcut and other mobile phone, tablet or computer application (the “Site”) to sell Products and Services pursuant to Avvinue, Inc.’s marketplace program and is an agreement between you or the business you represent and Avvinue, Inc. By registering as a Supplier, you (on behalf of yourself or the business you represent) agree to be bound by the terms of this Agreement.

As used in this Agreement, "Avvinue, Inc." means Avvinue, Inc. and "You" or “Supplier” means the applicant (if registering for the Marketplace Program as an individual), or the business employing the applicant (if registering for the Marketplace Program as a business).

Definitions

For purposes of this Agreement, capitalized terms will have the meanings specified below, or if not defined herein, the meanings given in Avvinue, Inc.’s Terms of Service:

"Affiliate" will mean, with respect to Avvinue, Inc., any entity, whether incorporated or not, that directly or indirectly controls, is under common controlled by, or is under common control by such party or its corporate parent, where “control” (or variations of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.

"Claims(s)" will mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation.

“Item File” means a data feed between Supplier and the Site that includes Supplier Content (as defined below) and other relevant or necessary information enabling Supplier Content to be made available on the Marketplace Program.

"Law" shall mean any law, ordinance, statute, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, or any governmental authority of competent jurisdiction.

"Losses" shall mean any and all damages (including, without limitation, past, future, direct, indirect, economic, noneconomic, consequential, special, exemplary, incidental, and punitive), sanctions, settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys' fees and costs.

“Product and Services” shall mean all items and goods for which Supplier provides Avvinue, Inc. Supplier Content.

"Supplier Content" shall mean all images, Product and Services information and content including without limitation, the Product and Services data, (i) provided by Supplier to Avvinue, Inc. or its Affiliates for use in connection with the Marketplace Program and (ii) otherwise made available by Supplier to customer on the Site (“Customer”) (e.g. through Supplier's distribution or hosting of such images, content or information).

Agreement to Avvinue, Inc.'s Terms of Service and Privacy Policy

This Agreement is in addition to and supplements Avvinue, Inc. 's Terms of Service, Acceptable Use Policy and Privacy Policy posted on the Site. By entering into this Agreement, you also agree to abide by Avvinue, Inc. 's Terms of Service, Acceptable Use Policy and Privacy Policy. Avvinue, Inc. may modify its Terms of Service and Privacy Policy from time to time, with or without notice. Your continued use of the Site and the Marketplace Program following Avvinue, Inc.'s posting of such modifications shall be deemed to be your acceptance of any such modifications. If you do not agree to the changes in the Terms and Conditions or Privacy Policy, immediately cease to use the Site. For the avoidance of doubt, modifications to this Agreement are governed by the Waivers and Amendments section herein.

Supplier's Content License Grant

License for Content. By entering into this Agreement, Supplier grants Avvinue, Inc. and its Affiliates a royalty-free, non-exclusive, worldwide, sublicensable, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, commercially or non-commercially exploit in any manner, incorporate and imbed into other works, and distribute Supplier Content throughout the Site and all Affiliate properties. Supplier must be notified of any modifications to the content.

License for Marks. Supplier hereby grants Avvinue, Inc., its Affiliates and marketing partners a non-exclusive, royalty-free, non-transferable license to publish, use, reproduce, distribute, transmit, and display Supplier's name, trademarks, service marks and logos ("Supplier's Marks") during the Term in connection with, or for the promotion of, the Marketplace Program or for internal purposes. All such uses of the Supplier’s Marks will be subject to the brand guidelines which Supplier provides to Avvinue, Inc.

Product and Services Information and Other Content

Content. Supplier agrees and warrants that any and all Supplier Content: (a) will be truthful, accurate, and not misleading or otherwise deceptive; (b) will not violate the intellectual property rights of any third party such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy; (c) will not violate any applicable Law; (d) will not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; and (e) will not create liability for Avvinue, Inc. Supplier agrees that any and all Supplier Content may be publicly displayed by Avvinue, Inc. as Avvinue, Inc. sees fit and at no charge to Avvinue, Inc., provided that Avvinue, Inc. shall have no obligation to display Supplier Content. Supplier will only provide Supplier Content for Products and Services that fit into the categories or parameters approved in writing by Avvinue, Inc. Supplier may provide Avvinue, Inc. with Supplier Content for Products and Services in additional categories or parameters only with the prior written consent of Avvinue, Inc. (which may be given by email). Avvinue, Inc. shall have no obligation to list, display, or otherwise offer on the Site all Products and Services for which Supplier provides Supplier Content, and listing any such Products and Services is in Avvinue, Inc.’s sole discretion.

Excluded Products and Services. You hereby represent and warrant that you will not list, offer or sell Products and Services that: (a) are stolen, replicas, counterfeits or unauthorized copies; (b) violate the intellectual property rights of others such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy; (c) You do not have full right and authority to sell; (d) violate any Laws, including those governing export control or consumer protection; or (f) contain any material that is obscene, pornographic or that contains child pornography.

Product and Services Authenticity

Authenticity / Authorization. All Products and Services that bear a company’s official brand or logo can be listed on the Site as long as the Products and Services are sold directly by the brand owner or from an authorized Supplier. Supplier will maintain adequate processes and procedures for conducting diligence to assure that Products and Services are authentic, authorized for sale, and not stolen, counterfeited, replicas, unauthorize copies, illegal or misbranded. Upon Avvinue, Inc.'s request, Supplier will promptly provide Avvinue, Inc. with (i) certificates of authenticity (or similar documentation) for Products and Services and (ii) documentation showing that Supplier is permitted to sell specific brands or Products and Services on Site.

Penalties. If the Supplier fails to provide the required documentation, Supplier may be removed from the Site, and may be subject to a range of other actions, including but not limited to suspension of their Supplier Marketplace account and removal of their Products and Services from the Site.

Fees and Commissions

The fees and commissions (“Fees”) payable by Supplier to Avvinue, Inc. are as set forth in Avvinue Marketplace Supplier Agreement.

Supplier hereby appoints Avvinue, Inc. as its agent for accepting and processing payment from Customer’s on Supplier’s behalf. Supplier authorizes Avvinue, Inc. to receive payments on its behalf. Avvinue shall deliver such payments to Supplier’s designated bank account in accordance with its instructions on the schedule and net of agreed-upon Fees and/or other amounts owed by Supplier to Avvinue, Inc. (such resulting amount, "Supplier Payment"), in each case as provided in Avvinue Marketplace Supplier Agreement. Supplier agrees and acknowledges that: (a) once Avvinue, Inc. receives payment from a Customer, Supplier will treat the Customer as if Supplier has itself received the funds, regardless of whether Supplier actually receives the payment from Avvinue, Inc., and (b) its sole recourse for nonpayment by Avvinue, Inc. is against Avvinue, Inc., and it will not seek any return, refund or payment directly or indirectly from Customers in the event of nonpayment by Avvinue, Inc. Avvinue, Inc. reserves the right to offset any overpayments to Supplier against any future Supplier Payments.

Avvinue, Inc. will automatically take a 15% marketplace fee of the selling price, exclusive of any sales taxes of each order or part of each order of Products and Services duly remitted by the Supplier in accordance with this agreement. It is the sole responsibility of the Supplier to ensure the Products and Services pricing provided to the Customer is accurate and inclusive of the marketplace fee. The marketplace fee percentage established in this clause cannot be modified by the Parties, unless it is mutually agreed in writing.

Avvinue, Inc. may modify the schedule of payments from time to time upon prior notice to Suppliers. To the extent Avvinue, Inc. agrees to invoice Supplier for any Fees due, Supplier shall pay those Fees set forth in invoices not disputed in good faith within thirty (30) days of the date of receipt thereof. All such payment obligations are non-cancelable and all amounts paid are non-refundable, except for amounts paid in error that are not actually due under this Agreement. Supplier shall pay interest on all payments not received by the due date at a rate of one and a half percent (1.5%) or the maximum amount allowed by Law, whichever is less.

Withholding of Payment. Avvinue, Inc. may withhold the payment of funds to You or return funds to Customers, if the Supplier is the subject of an investigation, or there is a Claim against You, for any suspected or alleged wrongful conduct or any violation of this Agreement. Avvinue, Inc. will not be liable to You for any such amounts.

Purchase/Order Processing, Fulfillment and Shipping

Orders. Supplier will be the seller of record. Customers purchasing Products and Services through the Site will place orders using the Avvinue, Inc. checkout system and Avvinue, Inc. will collect all proceeds from such transactions, including shipping costs and applicable taxes based on shipment options and tax designations provided by Supplier to Avvinue, Inc. The Customer is the purchaser of record. Avvinue, Inc. will electronically transmit to Supplier the order information (e.g. Customer full name, shipping address, and email) ("Transaction Information") that Avvinue, Inc. determines Supplier needs to fulfill each order, including without limitation, shipping Product and Services to Customers and providing Customer service. Avvinue, Inc. will send an automated email message to each Customer confirming receipt of an order. Supplier will provide Avvinue, Inc. with Supplier's customer service contact information which Avvinue, Inc. may include in such confirmation email and/or on the Site.

Risk of Fraud and Loss. Supplier’s bears the risk of all fraud except for credit card chargebacks that result from unauthorized payments. Supplier will be responsible for all costs related to fraud under any other circumstance, and all chargebacks related to Products and Services sold and Product and Services fulfillment and delivery. For all credit card chargebacks for which Supplier bears the risk, Avvinue, Inc. will offset such chargeback amounts against amounts otherwise owed to Supplier or send Supplier an invoice and Supplier will pay such invoice within thirty (30) days of receipt.

Fulfillment of orders. (a) Once Avvinue, Inc. has transmitted an order to Supplier, Supplier will at its own expense, be solely responsible for, and bear all liability for, the fulfillment of the order, including without limitation, packaging and shipping of Products and Services, securing the services of and payment of any freight forwarder or customs broker service charges (as may be required for any particular shipment), import or export duties or taxes (as applicable), and Customer service. Supplier agrees that legal ownership and all risk of loss of the Products and Services remains with Supplier until the Customer receives the Product and Services from Supplier. If Supplier cannot fulfill the entire quantity of a purchase order (PO) line in a single order, then the Supplier will cancel that PO line, fulfill all other lines in the order and immediately notify Avvinue, Inc. of such cancellation. If the order consists of one PO line that Supplier cannot fulfill the entire quantity for, then Supplier will cancel the entire order and immediately notify Avvinue, Inc.

(b) Supplier will ship only the Product and Services purchased by the Customer and will not include any additional Products and Services, substitute Products and Services, materials or information not purchased by the Customer, other than those materials included in all shipments sold by Supplier as long as such materials do not in any way promote other third-party marketplaces.

Shipping. (a) Supplier is responsible for properly specifying shipping options for all Products and Services in its Item File, and for properly handling all returns, including without limitation, those for Products and Services that have unique requirements for shipping and return handling, including without limitation, hazardous materials or perishable Products and Services to the extent such Products and Services are permitted to be sold on the Site. Supplier must offer a 2-day shipping option to Consumers who purchase on the Site.

(b) Supplier will provide Avvinue, Inc. with the shipping, handling, and any other charges for each Product and Services, separate from the purchase price. Supplier will accept payments from Avvinue, Inc. based on the specified shipping charges as full payment for the shipping of such Products and Services to the Customer.

(c) Supplier will ship Products and Services ordered by Customers by placing the ordered items into the custody of the appropriate shipping agency or freight forwarder within two (2) business day or less following notification of the order. Supplier will provide notice of shipment to Avvinue, Inc. through the Supplier’s interface in the Supplier Portal app, or via email to partnerships@avvinue.com, and Supplier hereby represents and warrants that it will only provide notification of shipment following actual shipment of the Product and Services. If Avvinue, Inc. does not receive a shipment notification from Supplier within seven (7) days of placement of order, the order may be cancelled by Avvinue, Inc. and Supplier will be responsible for all Product and Services costs and shipping costs associated with such cancelled order.

(d) Supplier will maintain an on-time shipment rate of 95% or higher

(e) Factors outside of the Supplier’s control will not impact the on-time shipment rate.

Responsibilities (cancellations, returns and refunds)

Responsibilities . Supplier is responsible for processing all Customer cancellations, returns, refunds, and/or Customer Service price adjustments. Supplier will provide Avvinue, Inc. with its Customer return, refund and price adjustment policies ("Customer Service Policies") for display on the Site. Supplier's Customer Service Policies for Products and Services sold through the Site will be no less favorable to Customers than Supplier's most favorable policies offered on Supplier's own site or on other third-party marketplaces where such Products and Services are offered for sale. Notwithstanding the foregoing, Supplier initial response time to Customers shall be within forty-eight (48) hours. If Supplier does not provide such Customer Service Policies to Avvinue, Inc. prior to the Effective Date, then Supplier shall be deemed to have adopted Avvinue, Inc.'s standard customer service policies as may be adopted and/or revised from time to time. Supplier shall notify Avvinue, Inc. of any material changes to Supplier's Customer Service Policies at least fourteen (14) days prior to Supplier's implementation of such changes, provided, however, that any such changes shall not be effective with respect to orders until the revised Supplier Customer Service Policy has been posted on the Site.

Cancellations. Supplier will maintain a cancellation rate due to Supplier’s error or fault of 3.0% or less, calculated on a rolling thirty (30) day period. Substitutions do not count towards cancellation rates.

Refunds. Avvinue, Inc. will whenever possible provide refunds to Customers via the method of payment used by the Customer (most often the Customer’s credit card) for Products and Services not received or sufficiently different from their Product and Services description. Supplier will provide Avvinue, Inc. with the necessary information to process such refunds, such as the reason code and/or any special instructions. Avvinue, Inc. will refund to Supplier the amount of the Commission Fee attributable to the amount of the Customer refund (excluding any refunded taxes); provided that Avvinue, Inc. shall have no liability for refunds offered by Supplier in excess of the purchase price. Supplier will be responsible for all other forms of refund, such as store credit or exchanges, which shall be offered according to the Supplier’s own Customer Service Policy. If Supplier provides Customer directly with a refund, Avvinue, Inc. shall retain the full amount of the Commission Fee attributable to such Customer refund. If Avvinue, Inc. makes a cash refund to a Customer for a Product and Services returned to Supplier, Avvinue, Inc. in its sole discretion, will obtain a refund of the Supplier Payment received by Supplier for such returned Products and Services either via (i) offset of any amounts payable by Avvinue, Inc. to Supplier or (ii) by billing Supplier for such amounts.

Ownership and Use of Transaction Information

Avvinue, Inc. shall own all Transaction Information. Supplier may only use Transaction Information to further a transaction related to this Agreement, in accordance with the terms of this Agreement, Avvinue, Inc.'s Privacy Policy and all applicable Law. Supplier will not (i) disclose or convey any Transaction Information to any third party (except as necessary for Supplier to perform its obligations under the Agreement); (ii) use any Transaction Information to conduct Customer surveys or for any marketing or promotional purposes; (iii) contact a Customer that has ordered a Product and Services that has not yet been delivered with the intent to collect a payment in connection therewith or to influence such Customer to make an alternative or additional purchase; or (iv) target communications of any kind on the basis of the intended recipient being a Customer.

Taxes

Taxpayer and Seller of Record. Supplier is the taxpayer and seller of record and must comply with all applicable tax Law. Supplier shall be solely liable for any tax liabilities, including without limitation, any associated penalties, fees or interest. All references to "tax" or "taxes" in this Agreement shall mean all taxes and fees, including without limitation, sales, use and surcharge taxes, import or export duties, electronic waste recycling fees, and all other indirect taxes and fees.

Supplier Warranty. Supplier is solely responsible for determining the amount of sales, use or other indirect taxes owed as a result of the sale of Products and Services, and is solely responsible for reporting and remitting any such taxes required under applicable Law. Supplier hereby represents and warrants that it will (a) identify all states in which it has an obligation to collect and remit taxes during onboarding, (b) keep such information updated at all times, (c) report and remit all such taxes collected on Supplier’s behalf by Avvinue, Inc., and (d) maintain appropriate accounting records and documentation to verify the remittance of such taxes collected on Supplier’s behalf by Avvinue, Inc. Upon the request of Avvinue, Inc., Supplier will immediately provide Avvinue, Inc. with records and documentation in the manner, form and substance as Avvinue, Inc. may reasonable request of Supplier's remittance of all taxes collected by Avvinue, Inc. on Supplier’s behalf. If Supplier is unable to provide such proof to Avvinue, Inc.’s satisfaction, Avvinue, Inc. may retain all such tax amounts and/or terminate Supplier's Marketplace account. Supplier acknowledges and agrees that Avvinue, Inc. has no responsibility to collect, report or remit taxes in connection with Supplier’s sales. Supplier shall cooperate with Avvinue, Inc. regarding any requests for information, audit or similar request by any taxing authority concerning taxes collected and remitted resulting from the sale of Products and Services on the Site.

Marketplace Sales Tax. Without limiting the generality of the foregoing, as a marketplace facilitator, Avvinue, Inc. is required by law to automatically collect sale taxes on the Supplier’s behalf with respect to any Products and Services shipped to certain states and countries and their territories, as determined by Avvinue, Inc. in its sole discretion, and all such tax amounts shall be remitted by Avvinue, Inc. to the State or Country from amounts received by Avvinue, Inc. from Customers.

Nexus. If any governmental authority determines that Supplier has established nexus in a state or local jurisdictions; or that sales, use or other indirect taxes are due from Avvinue, Inc. or Supplier on sales of Products and Services through the Site; or that Supplier is otherwise responsible for the collection and remittance or reporting of taxes (and all related penalties and interest) related to the sale of any Products and Services, whether or not as a result of any action or inaction by Avvinue, Inc., Supplier (i) agrees that Supplier shall solely be responsible for payment of such taxes (and all related penalties and interest) and/or reporting of such taxes (if applicable), (ii) agrees that Avvinue, Inc. shall have no liability to Supplier or any governmental authority for such taxes or penalties, and (iii) will not seek any reimbursement from Avvinue, Inc. for such taxes and related penalties. Supplier shall indemnify and hold harmless Avvinue, Inc. and its Affiliates and their respective officers, directors, employees and agents for any claims, liabilities, losses, fines, costs and expenses (including reasonable attorneys' fees) arising out of or related to any ruling by any governmental authority that Avvinue, Inc. or Supplier has a tax remittance or reporting obligation in any State on account of sales of Products and Services on the Site, whether or not due to any action or inaction by Avvinue, Inc. Avvinue, Inc. may immediately charge Supplier's credit card on file and/or set-off any and all costs and/or expenses that are incurred in connection with the foregoing against any amounts owing to Supplier, including without limitation, any Supplier Payments).

Information Security

Supplier will use appropriate internal information security practices to prevent the compromise of its information systems, computer networks and data files by unauthorized users, viruses or malicious computer programs which could in turn be transmitted to Avvinue, Inc. or compromise the security of Avvinue, Inc. Confidential Information (as defined in the Section titled “Confidential Information” below), including without limitation, the Transaction Information. Supplier shall promptly notify Avvinue, Inc. of any breach and take all necessary actions to remediate the breach. Supplier shall be responsible for any costs, damages or legal notification procedures resulting from any breach of this Section.

Confidential Information

Definition. The term "Confidential Information" means all information communicated by one party (“Disclosing Party”) to the other party (“Receiving Party”) that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure, including, without limitation (a) the terms of this Agreement, (b) existing or contemplated Products and Services, services, designs, processes and technical specifications, and (c) information relating to business plans, sales or marketing methods and information accessed via Avvinue, Inc.’s APIs. Supplier shall also treat all Transaction Information and tax codes as Confidential Information.

Obligations. The Receiving Party may receive Confidential Information from the Disclosing Party during the Term, and such Confidential Information shall be used only to perform its obligations under this Agreement. The Receiving Party shall treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care.

Exceptions. The obligations of either party under this Section will not apply to information that the Receiving Party can demonstrate (a) is known by the Receiving Party prior to the date of the disclosure by the Disclosing Party without a restriction on disclosure or use; (b) becomes publicly known though no act or fault of the Receiving Party; provided, however, Transaction Information shall remain subject to confidentiality obligations regardless of its availability to the public; (c) was received from a third party without restriction on disclosure or use; or (d) is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party.

Disclosure by Law. In the event the Receiving Party is required by Law or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (a) give the Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (b) limit the disclosure to the minimum amount that is legally required to be disclosed.

Return or destruction. Upon the Disclosing Party's written request, the Receiving Party shall return or certify the destruction of all Confidential Information, and the obligation of confidentiality shall continue for three (3) years from the expiration or termination of this Agreement; provided however, the Receiving Party shall continue to keep confidential (i) any Transaction Information, and (ii) the terms of this Agreement. Supplier agrees that Avvinue, Inc. may share Supplier's Confidential Information with its Affiliates for internal use only.

Representations and Warranties

Supplier hereby represents and warrants to Avvinue, Inc. the following:

Authority. Supplier is a corporation duly organized, validly existing and in good standing under the Laws of the state and country where Supplier is incorporated, and Supplier has full power and authority to execute Agreement and to perform its obligations hereunder without any further ratification or approval. Supplier has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances.

No Conflicts. Neither the execution of this Agreement, nor the consummation of the transaction contemplated hereby, will violate or conflict with any obligation, contract or license which could reasonably be expected to interfere with the consummation of the transaction contemplated hereby.

Taxes. The person(s) inputting all tax related information (including without limitation, tax designations, and States and Countries in which Supplier has a tax remittance obligation) (collectively "Tax Information") into the Item File or otherwise providing such Tax Information to Avvinue, Inc. has adequate tax knowledge and enough information about Supplier to accurately and completely enter such Tax Information. All Tax Information shall be accurate and complete. Supplier shall promptly update any Tax Information in the Item File as necessary to collect the correct amount of tax from Customers.

Intellectual Property. Supplier represents and warrants that Supplier has the right to grant the licenses granted herein, including with respect to the Supplier Content and Supplier Marks. Supplier has all necessary and sufficient rights to sell and offer for sale the Products and Services, directly and through the Site, without any conflict with or infringement of the rights of any third party, including any rights in intellectual property. To Supplier’s knowledge, Supplier’s Products and Services are not counterfeit, stolen, replicas, or otherwise unauthorized copies of a third party’s Products and Services.

Term, Termination and Suspension

Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect as long as the Supplier continues using the Site to list and sell Products and Services, unless an agreed upon term is included in Avvinue Marketplace Supplier Agreement.

Termination for Breach. This Agreement may be terminated at any time by either party if the other party materially breaches any provision of this Agreement, and fails to cure such breach within thirty (30) days of receipt of written notice of breach from the non-breaching party, stating the nature and character of the breach. Avvinue, Inc. may immediately terminate this Agreement if Supplier fails to meet any of its tax obligations, including without limitation the requirement of Supplier to provide documentation proving that Supplier has remitted collected taxes or fees to the appropriate jurisdiction(s) in accordance with the Section titled “Taxes”. Either party may terminate this Agreement without prior notice or a cure period for breaches that are incapable of cure (including, but not limited to, a party’s involvement in money laundering or terrorist activity). Upon termination of this Agreement for breach by Supplier, any fees due to Avvinue, Inc. at the time of termination shall immediately come due and; if for breach of Avvinue, Inc., any amounts prepaid by Supplier but unused up to the date of termination shall be refunded to Supplier. Termination under this Section does not limit either party from pursuing any other remedies available to such party, including but not limited to injunctive relief.

Termination in the Event of Insolvency or Bankruptcy. Either party may terminate this Agreement upon written notice to the other party in the event (a) the other party files a petition for bankruptcy or is adjudicated bankrupt; (b) a petition in bankruptcy is filed against the other party and such petition is not dismissed within ninety (90) days of filing; (c) the other party becomes or is declared insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar Law; (d) the other party ceases to do business in the normal course; or (e) a receiver is appointed for the other party or its business.

Avvinue, Inc. Termination. Avvinue, Inc. may terminate this Agreement at any time, upon sixty (60) days prior written notice to Supplier.

Supplier Termination. Supplier may terminate this Agreement at any time, upon sixty (60) days prior written notice to Avvinue, Inc.

Post-Termination Obligations. Supplier will continue to have obligations under this Agreement after termination of the Agreement or during a suspension of Supplier’s listing of Products and Services under the foregoing paragraph, including without limitation, the obligation to (i) provide customer service to Customers who purchased Products and Services on the Site, (ii) pay any invoices delivered by Avvinue, Inc. in connection with this Agreement, (iii) notify Avvinue, Inc. and Customers of any recalls of its Products and Services, (iv) remit any taxes collected to the proper jurisdiction(s), (v) fulfill any outstanding orders, and (vi) immediately notify Avvinue, Inc. of any security breach that allows a third party to view or access or otherwise compromise any Transaction Information.

Survival. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement (including, without limitation, representations, warranties, indemnification, payment obligations, remedies, Avvinue, Inc.'s rights to use Supplier's suggestions and feedback, limitations of liability, choice of law, jurisdiction, and venue) shall survive its termination

Indemnification

Indemnification Obligations. Supplier will defend, indemnify and hold harmless Avvinue, Inc. and Affiliates and their respective employees, directors, agents and representatives (each an "Indemnitee") from and against any and all Losses arising out of or related to third party Claims asserted against, imposed upon or incurred by an Indemnitee due to, arising out of or relating to: (a) any actual or alleged breach of Supplier's representations, warranties, or obligations set forth in this Agreement, Avvinue, Inc.'s Terms and Conditions, or Avvinue, Inc.’s Privacy Policy; (b) violation of any applicable Laws; (c) Supplier's own site or other sales channels, Supplier's Products and Services (including the advertisement, offer, sale or return of any of Supplier's Products and Services) and Supplier's Content; (d) any actual or alleged infringement of any intellectual property rights (including rights of publicity or right of privacy) by Supplier's Products and Services or Supplier’s Content; (e) personal injury, death or property damage arising from Supplier's Products and Services; and (f) any and all income, sales, use, and other taxes, surcharges, fees, assessments or charges of any kind whatever, together with any interest, penalties and other additions with respect thereto, imposed by any federal, state, local or foreign government in any way related to the sale of the Products and Services on the Site, excluding, any taxes related to Avvinue, Inc.'s net income. The term "taxes" includes any class action or qui tam legal claims grounded in an allegation or allegations that Avvinue, Inc. bears some civil or criminal liability for over- or under-collection of any tax or fee on sales of Products and Services offered by Supplier.

Procedure for Indemnification. Upon receipt of notice, from whatever source, of Claims against an Indemnitee for which Supplier is obligated to indemnify such Indemnitee, Supplier shall immediately take necessary and appropriate action to protect such Indemnitee's interests with regard to the Claims. Avvinue, Inc. shall notify Supplier of the assertion, filing or service of any Claims of which Avvinue, Inc. has knowledge, as soon as is reasonably practicable.

Settlement. Supplier, in the defense of any Claim, shall not, except with the prior written consent of Avvinue, Inc., consent to entry of any judgment or enter into any settlement that does not include as an unconditional term the release of Avvinue, Inc. and any other applicable Indemnitee from all liability and blame with respect to the Claim. Avvinue, Inc. shall have the right at all times to accept or reject any offer to settle any Claim against it.

Insurance. Each Party undertakes to have taken out or to take out before the Effective Date a civil liability insurance policy covering any damage that may occur to its property and staff. Supplier also undertakes to have taken out any insurance policy and to have all the necessary amendments drawn up to cover its liability and any damage resulting from the execution of the Partnership.

Each Party will have to justify to the other Party, on its first request, the subscription of these guarantees by the production of a certificate delivered by its insurers, giving the details, the amount of the guarantees and the exclusions. Each Party will have to assume alone the risks of its operation without there being any relationship of subordination or a de facto partnership between or with the other Party.

Each Party must in this respect in particular, but without being limited to it, ensure compliance with all the obligations and responsibilities resulting from the hiring of employees as well as all legal and regulatory formalities.

No Party can be held responsible for the improper performance or non-performance of its obligations hereunder, the cause of which does not relate to its negligence or the cause of which relates to elements that it cannot control or for damage which would not have occurred if the other Party had respected its obligations.

Avvinue Inc.'s liability is therefore limited to the obligations defined in the agreement, on the basis of an obligation of means. In any event, financial consequences resulting from Avvinue, Inc.’s liability under the agreement shall not exceed what Avvinue, Inc.’s insurance policy (not least than the current version at the date of signature of the agreement) covers.

Warranty Disclaimer

THE SITE AND ANY RELATED SERVICES, CONTENT, SOFTWARE, ARTWORK, DATA, AND INFORMATION ARE PROVIDED BY AVVINUE, INC. "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. AVVINUE, INC. EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF DATA, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, OR NON-INFRINGEMENT. AVVINUE, INC. DOES NOT WARRANT THAT THE SITE WILL BE ERROR-FREE, FREE OF VIRUSES OR THAT DEFECTS WILL BE CORRECTED.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AVVINUE, INC. OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, LOSS OF USE OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF AVVINUE, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL LIABILITY OF AVVINUE, INC. UNDER THIS AGREEMENT SHALL NOT EXCEED THE ACTUAL VALUE OF ANY FEES ACTUALLY RECEIVED BY AVVINUE, INC. IN CONNECTION WITH SUPPLIER’S SALES THROUGH THE SITE IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO THE LIABILITY.

Notices

Any notice or other communication required or permitted to be made or given to either party under this Agreement shall be deemed sufficiently made or given on the date of delivery if delivered in person, email, or by overnight commercial courier service with tracking capabilities with costs prepaid, or three (3) days after the date of mailing if sent by certified first class U.S. mail, return receipt requested and postage prepaid, at the address of the parties set forth below or such other address as may be given from time to time under the terms of this notice provision. A party may update its proper address for notice using the notice mechanisms provided for in this paragraph. For Supplier: The address provided by Supplier in the onboarding process.

For Avvinue, Inc.:

Avvinue, Inc.
57 Rue du President Edouard Herriot 69002 Lyon, France e-mail: support@avvinue.com Attn: Legal Department

Controlling Law and Jurisdiction

The Supplier may at any time refer to the consumer mediator with a view to the amicable resolution of any possible litigation opposing Avvinue, Inc. (article L. 612-1 of the Consumer Code). The name and contact details of the consumer mediator (s) :

Marion le MARCHAND

Avocat au Barreau de Lyon – T. 1636

21, Avenue Jean Jaurès 69 007 LYON

marion@mlm-avocats.fr

www.mlm-avocats.fr

ANY DISPUTE BETWEEN AVVINUE AND A SUPPLIER, RELATING TO THE VALIDITY, INTERPRETATION AND / OR EXECUTION OF THE TOS, NOT BEFORE THE CONSUMER MEDIATOR, NOR AMICIABLY RESOLVED AT THE END OF A PERIOD OF SIXTY (60) DAYS FROM THE FIRST NOTIFICATION ON THE DISPUTE, WILL BE BROUGHT BEFORE MATERIAL AND TERRITORIALLY COMPETENT COURTS.

Waivers and Amendments

This Agreement may only be modified, or any rights under it waived, by a written document executed by the Parties. The express waiver of any right or default hereunder shall be effective only in the instance given and shall not operate as or imply a waiver of any similar right or default on any subsequent occasion. No failure or delay by a party in exercising any right, power or privilege under this Agreement shall operate as waiver hereof.

Severability

If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected. If any provision of this Agreement is for any reason held to be excessively broad as to duration, geographical scope, activity, or subject, then such provision shall be construed by limiting and reducing it so as to be enforceable to the extent compatible with the then-applicable Law.

Relationship of the Parties

The Parties hereto expressly understand and agree that the other is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. This Agreement does not make either party the employee, agent or legal representative of the other.

No assignment

Supplier shall not assign this Agreement, in whole or in part, without the prior written consent of Avvinue, Inc. Avvinue, Inc. may freely assign this Agreement, in whole or in part, without the prior written consent of Supplier.

Complete Agreement

This Agreement is the complete and exclusive agreement by and among the Parties with respect to the subject matter hereof, superseding any prior agreements and communications regarding such subject matter. To the extent that the terms of this Agreement conflict with Avvinue, Inc.’s Terms of Service, Acceptable Use Policy and/or Privacy Policy, this Agreement shall control.