THINGPARK MARKETPLACE SELLER AGREEMENT
This ThingPark Marketplace Seller Agreement (this "Agreement") is between ThingPark Marketplace ("ThingPark") and you (if registering as an individual) (“You”) or the entity that you represent (if you are registering as a business (“Seller” or “Vendor” or ”You”) Before clicking to agree to this Agreement, please read carefully the terms and conditions below. Under this Agreement, You authorize ThingPark, and ThingPark affiliates to promote, facilitate the sales of Marketplace Products (as defined below).
This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by checking the box (or similar action) to accept the Agreement that is presented to you at the time you sign up to list your products on the ThingPark Marketplace.
1 Introduction to the ThingPark Marketplace
The ThingPark Marketplace is a platform that connects sellers who manufacture and/or distribute Products with potential customers/buyers (referred to as Buyers).
2 Key Definitions
2.1. " ThingPark Marketplace" or "Marketplace" is defined by any location at which ThingPark makes available or lists Marketplace Products via various channels including but not limited to online platform, applications, mobile interfaces, service or user interface that allows for the discovery, download or purchase of Products.
2.2. "Marketplace Guidelines" is defined by terms, rules & policies and are available via ThingPark Marketplace home page. These Guidelines set forth requirements for You to include your Products in the ThingPark Marketplace.
2.3. "New Versions" means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your Products.
2.4 “Products” are defined by any hardware products, software products and associated services that are offered on the Marketplace.
2.5 “Wholesale Buyers are defined by Buyers that comply with eligibility criteria as defined by ThingPark Marketplace and updated from time to time. The Wholesale buyers are entitled to special price list.
3 Descriptions of the Services
The ThingPark Marketplace provides a platform that connects Sellers who wish to market and sell their products with Buyers. The sale of Products shall be direct between the Buyer and the Seller. Sellers are able to market their products for sale and reference to a global buyer community and Wholesale Buyers. Sellers are to describe their products, shipping information and manage post sales for sold products.
Transactions are conducted via the Service ThingPark Marketplace for the sale of Products paid through the ThingPark Marketplace. ThingPark Marketplace shall by no means resell products offered by Sellers on the Service. ThingPark Marketplace invoice Seller for its services fees and remit the amount due as described in article 9.
4 Access to the Service
In addition to complying with these Seller Terms, access to the Service shall be subject to the creation of your ThingPark account. This shall require the entering of personal identification data. During the account creation process, You agree to provide only accurate information and to inform ThingPark Marketplace immediately of any changes that would impact your Service.
In order to use the ThingPark Service, You maintain the username and password that you created when you opened your account. You agree to keep this information confidential and to not disclose this information to any third party., You are solely responsible for access to the Service using your username and password will not be tolerated by law.
In case of loss, misappropriation or unauthorized use of your username and/or password, You shall agree to immediately notify ThingPark’s support services.
At the time that you adhere to this agreement, the Service shall be limited to Sellers residing in the following countries:
- France, Germany
If you want to join the marketplace, but your country is not in the above list, feel free to contact our support: firstname.lastname@example.org.
5 Obligations concerning Transactions through the Service
5.1 General Obligations
You as a seller understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the ThingPark Marketplace site and services. In connection with your use of the site, application, services, and collective content, you agree to the following:
- You agree to comply with relevant business legislations (including registration, accounting obligations, social and fiscal legislation).
- You will not solicit marketplace Buyers to contact him/her outside of the ThingPark marketplace portal in any form whatsoever (including yet not excluding the insertion of contact information (phone number, URL, hyperlinks) in Seller product descriptions, brand pages, packaging, and messages to the Buyers.
- You agree to be committed to answering emails and notifications from the ThingPark Marketplace or from Buyers within 2 business days from receipt.
- You agree to not infringe the rights of ThingPark or the rights of any other person or entity, including without limitation, their intellectual property, privacy, publicity or contractual right.
- You agree to avoid, without this list being exhaustive, the use of virtual or trade names, pseudonyms, statements or other messages which may be abusive, contrary to public convention or morality.
5.2 Obligations concerning Products Offered on the Site
The Seller shall ensure to sell only products which the Seller owns or which he/she has the right to sell including versions and editions (except as otherwise provided under this Agreement) that you make available directly or indirectly through any other similar service. You will deliver any New Versions to the Marketplace, together with any related Product information, as soon as they are available. Seller shall ensure that the Products do not in any way violate the law, current regulations and standards (mandatory or not) and do not infringe the rights of third parties. The Seller shall be solely responsible for the sale, delivery of Products and after sales services she/he offers on the ThingPark Marketplace.
The Seller shall undertake to act in good faith in the description associated with Products offered on the Site. He shall be solely responsible for the accuracy of the information contained therein and shall ensure that they are not likely to mislead potential buyers, with regard to the characteristics of the Product, the associated guarantees, and the state or price of the Product. The Seller shall notify the Buyer of all information enabling them to know the essential and technical characteristics of the product (if applicable, composition of the product including accessories, origin, legal guarantees, the terms of their implementation, or any other contractual conditions, etc.).
The Seller shall further ensure that the illustrations/images provided in the description associated with each Product (photographs, drawings, etc.) clearly illustrate the Products in question, respect the rights of third parties, and do not violate public convention or morality. The Seller shall guarantee ThingPark Marketplace that he possesses the rights, especially intellectual property rights for these illustrations which allow them to be used in the presentation of products.
In case of absence or unavailability for more than 2 days, the Seller shall temporarily suspend the placement of his Products online for sale by using the tool "vacation" made available on the Service. Failure on the part of the Seller to reply within the time limit stipulated, shall result in the automatic cancelation of the sales contract and the Seller’s account shall be placed "on vacation" by ThingPark Marketplace.
You agree to be committed to answering emails and notifications from the ThingPark Marketplace or from Buyers within 2 business days from receipt.
Failure on the part of the Seller to reply within the time limit stipulated, shall result in the automatic cancelation of the sales contract and the Seller’s account shall be placed "on vacation" by ThingPark Marketplace
The Seller shall ensure to fulfill at least 95% of orders for Products offered for sale on the Site from the creation of his account.
5.3 Obligations concerning Product Prices
Product prices shall be freely determined by the Seller, in accordance with laws and regulations. ThingPark Marketplace will be in charge of VAT rules calculation when applied.
Those prices must be exclusive of tax, delivery charges and miscellaneous. These additional charges will be added by ThingPark Marketplace to the price of the Products when the Buyer validates his purchase at order confirmation based on Sellers information.
ThingPark Marketplace currency is limited to Euro at this point.
5.4 Delivery-Related Obligations
The Seller is responsible to defined its Shipping terms and conditions and to update its shipping price rules with Marketplace support. The support team update the shipping price rules and term of delivery within 5 business days.
The description associated with each product on the Site shall indicate delivery methods proposed for the product.
The Seller shall respect the shipping method chosen by the Buyer.
The Buyer will issue an order and the ThingPark Marketplace will send to the Seller the purchase order. The Seller shall attach to the delivery of a Product an invoice or other document which will enable the Buyer to lay claim to his warranty.
The Seller shall undertake to provide all the necessary care for the packaging of Products in order to prevent damage during transportation.
Products shall be shipped by the Seller at the expense of the Buyer, which amount will be collected by ThingPark Marketplace payment system.
ThingPark shall forward to the Seller, no later than 2 business days after the purchase order issued by ThingPark Marketplace, Buyer's information necessary for the delivery of the Products.
The Seller shall process Products ordered within 2 working days after confirmation of the Product's purchase order, when the Product is mentioned in stock.
If the Product is mentioned out of stock, the Seller shall add in the Product description the Product detailed lead time and shipping condition if any.
6 Your Content; License to ThingPark; Buyer Licensing
6.1. Delivery of Your Content. You will offer Marketplace Products through ThingPark together with delivery of each Marketplace Product, you will also provide the following information and materials:
(a) Marketplace Product title, category, Seller name, List Prices (if applicable), product description, icon, logo or banner images, and any other information related to the Marketplace Products that ThingPark requires;
(b) the metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with your Marketplace Product that you wish to appear in connection with your Product;
(c) any Seller EULA (defined below ((a), (b), (c) collectively being the "Product Information"). Together, the Marketplace Product and Product Information are defined as "Content".
6.2. Accuracy. You are responsible for providing accurate Product Information. If Product Information is inaccurate or needs to be updated or modified, you will promptly provide ThingPark with corrections, updates, or modifications.
6.3. Compliance. You will ensure that all Content complies with this Agreement, including ThingPark's Marketplace Guidelines (which are hereby incorporated into this Agreement). You must comply with all such terms. Nonetheless, the express terms and conditions of this Agreement will supersede in the event of any direct conflict with the Marketplace Guidelines or such included (or referenced) terms, but only with respect to the subject matter of this Agreement.
6.4. License Granted to ThingPark. You hereby grant ThingPark, during the duration (and thereafter in accordance with Section 11 (Term and Termination), the nonexclusive, royalty‐free (subject to payment of any applicable Revenue Share and any other applicable service fees), worldwide right and license:
6.4.1. distribute or make available (including via download), as applicable, the Marketplace Products through the ThingPark Marketplace to Buyers by all means of electronic distribution available now or in the future;
6.4.2. to use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Product Information (and any such excerpts) in any and all digital and other formats for promotional purposes in connection with (i) the ThingPark Marketplace and (ii) listings for your; and
6.4.3. otherwise to use, store, copy and distribute your Content for testing and evaluation purposes; for ThingPark's use internally, in object code format (which ThingPark agrees not to decompile or reverse engineer), within the scope for which the Product's use is reasonably intended ("Internal Use License"); for purposes of exercising ThingPark's rights and fulfilling ThingPark's obligations hereunder; and for purposes of enforcing this Agreement and the Marketplace Guidelines.
6.5. License Clarifications. The licenses granted to ThingPark in Section 5.4: (i) include rights to distribute, promote and make available New Versions to Buyers, (ii) include the right, consistent with Section 11 (Term and Termination), after the Term to retain one or more electronic copies of each Marketplace Products and its associated Product Information and allow and downloads and re‐downloads of and access to Marketplace Products by Buyers , and (iii) are granted under all applicable intellectual property rights (including patent rights).
6.6. Buyer License Agreement ("EULA"). You, not ThingPark, license your Products to Buyers. You may provide your own EULA ("Seller EULA") with any Marketplace Products. However, your Seller EULA (if any) must comply with the terms and conditions of this Agreement and must, at a minimum, include terms consistent with, and at least as protective of ThingPark, as the terms in the Standard EULA Terms (defined below). If you do not provide a Seller EULA, then you agree that the provisions of the ThingPark Marketplace Guidelines in which ThingPark designates default Buyer license terms (the "Standard EULA Terms") will apply to Buyers' use of your Marketplace Products. The Standard EULA Terms specify, among other things, that you are the licensor of your Marketplace Products and that ThingPark is not a party to your EULA. You agree that ThingPark does not and will not have any responsibility or liability related to compliance or non‐compliance by you or any Buyer under a Seller EULA or the Standard EULA Terms.
6.7. Buyer Support. You will use commercially reasonable efforts to provide telephone, web-based and/or email support to the Buyers for your Marketplace Products during normal business hours after your sells. You will provide to ThingPark a current email address to which ThingPark may direct inquiries from Buyers regarding your Marketplace Products. You are solely responsible for providing all support for your Marketplace Products, and for providing to users of your Marketplace Products all information necessary for their use of your Marketplace Products. At a minimum you agree to respond within 24 hours to any support request that ThingPark identifies as critical.
7 Reservations of Rights
Subject to the rights granted in this Agreement and ThingPark's ownership of certain software, APIs, documentation and related materials (the "ThingPark Materials") to which ThingPark provides with access, as between You and us, You retain all rights, title and interest in and to Content that You deliver to us. Subject to your rights in such Content, ThingPark retains all right, title and interest in and to the ThingPark Marketplace, ThingPark Materials, and other ThingPark products, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.
8 ThingPark Marketplace Terms
8.1. Prohibited Actions; Responsibilities. You may not reverse engineer, disassemble or decompile any binary code used in connection with the ThingPark Marketplace, including any ThingPark Materials that ThingPark provides you. You will not take any action that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of ThingPark or of any Buyer or other third party. You agree not to make any representations, guarantees or warranties (1) that violate any laws or regulations, including any false advertising, (2) with respect to ThingPark, the ThingPark Marketplace, or ThingPark's Product or Services. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue ThingPark or the Marketplace.
8.2. ThingPark Marketplace Operations. ThingPark maintains at its sole discretion to determine all features and operations of the ThingPark Marketplace. You acknowledge that ThingPark has no obligation to promote, distribute, list or offer for Sale any Marketplace Product, or to continue to do so. With respect to Paid-via-ThingPark Products only, ThingPark is responsible for and has sole discretion related to processing payments, collecting payments, executing refunds to Buyers upon request by Sellers or by authorized third parties. All Sales through the ThingPark Marketplace will be processed by ThingPark's payment systems and will be subject to the Revenue Share terms below.
8.3. Buyers Data and Privacy‐Related Obligations. In addition to sales data related to your Paid-via-ThingPark Products, ThingPark will provide You with access to certain information provided to ThingPark by Buyers of your ThingPark Products through the ThingPark Marketplace, including Buyer name, company name (if any), physical or email addresses, and phone numbers ("ThingPark-Collected Buyer Data"). Based on the activities under this Agreement, subject to the provisions of this Section 8.4, You may also collect other information or data from Buyers, some of which may include personally identifiable information ("Seller-Collected Buyer Data"). Any Buyers data or information, whether ThingPark-Collected Buyers Data or Seller-Collected Buyer Data, is, collectively "Buyers Data". For all Buyer Data you will (i) use and authorize others to access and use the Buyer Data only for the purposes of providing and improving the functionality and user experience of your Marketplace Product, marketing your Marketplace Products to Buyers or such other purposes expressly permitted by the Buyer (in each case, in compliance with all Laws), and not modify any Buyer Data in a manner that adversely affects it integrity, and (ii) treat, store, transmit, disclose and use the information only in accordance with applicable privacy notices and laws, rules, regulations, orders, and other requirements of governmental agencies (together, "Laws"). Without limiting the foregoing and with respect to Seller-Collected Buyer Data, you shall provide legally adequate privacy notices to each Buyer and obtain all necessary consents under
Law and (y) notify Buyers that ThingPark is not responsible for the privacy, security or integrity of Seller-Collected Buyer Data. You shall also maintain and handle all of the Buyer Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable Laws. For the sake of clarity, ThingPark shall not be liable for or have any responsibility in connection with Seller-Collected Buyer Data.
8.4. Export. ThingPark is relying on your accurate determination of your Marketplace Products export status and your compliance with all export laws. You hereby represent, warrant and certify that, if applicable, (1) your Marketplace Products are authorized for export from and to each country to which you permit them to be distributed or made available through the ThingPark Marketplace, in accordance with the requirements of the applicable Regulations and (2) either (i) the Marketplace Products do not contain, use or support any data encryption or cryptographic functions ("Encryption Technology") or (ii) you have qualified each Marketplace Products containing, using or supporting Encryption Technology for export. You represent, warrant and certify to ThingPark that you will comply with all applicable export laws and regulations.
8.5. "Feedback" means any feedback, comments, suggestions, ideas, description of processes or other information that you may provide to ThingPark from time to time about or in connection with ThingPark Marketplace, including any ideas, concepts, know-how or techniques contained therein. You hereby grant ThingPark a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, including incorporating or implementing the Feedback in the ThingPark Marketplace or any ThingPark products, applications or services. You agree that ThingPark may exploit all Feedback without any restriction or obligation with regards to intellectual property rights or otherwise.
8.6. Aggregated Information. In addition to ThingPark's other rights, ThingPark may collect aggregated information regarding the ThingPark Marketplace and Marketplace Products (excluding any personally identifiable information), including through the use of third party analytics tools such as Google Analytics ("Aggregated Information") and may exploit and use the Aggregated Information for any purpose without restriction.
9 Disputes - Disagreements
At any time, the Buyer has the option to contact the Seller and address all requests or claims with regard to Products ordered provided by the Service, including claims to any valid warranties.
A trigger shall be provided for the Buyer to indicate in his account - within 14 days from the date he is notified for the Shipping - any complaint concerning Products, (e.g. product not received, etc.).
Beyond these deadlines, the Buyer retains the right to contact the Seller to make any claim for Products ordered.
In case of any complaint from a Buyer regarding a product, including where the Seller is informed of the complaint through the information tool made available in the Service and/or by an email from ThingPark, the Seller shall be personally responsible for the resolution of the dispute between him and the Buyer. Disputes shall be settled directly between the Buyer and the Seller where necessary. The Seller shall make every effort to resolve the dispute with the Buyer amicably.
A Seller will be removed from the ThingPark Market Place if there is a complaint rate of over 5% comprising of at least 5 sales orders since account creation.
10 Financial Terms
10.1. List Price. Subject to the terms of this Agreement, you have at your discretion to set the commercial pricing tiers for initial sales, licenses or subscriptions to your Products (the "List Prices"). You will determine the pricing for renewals, upgrades that add more licenses/users, New Versions and other support and maintenance, and academic and community licenses acquired through the ThingPark Marketplace ("Follow-on Sales"), all in accordance with its standard formulas and policies. You agree that any List Price may not exceed, at any time, the lowest list price or suggested retail price for each applicable pricing tier for the Products (including any similar edition, version or release) available on any Similar Service or the lowest actual price at which you make such Paid-via-Marketplace -on available for sale through any Similar Service. You will update the List Price for each Product as necessary to ensure that it meets the requirements of this Section 9.
Revenue Share. For each Sale, ThingPark will pay you an amount ("Revenue Share") equal to
- 85% of the amount received by ThingPark from the Sale
10.2. Sale includes any initial or renewal sale, subscription or license of a Product (or related content or services) through the ThingPark Marketplace.
Such amounts are the full amounts paid by the Buyer including taxes, shipment and miscellaneous. A Revenue Share is due only for Sales for which ThingPark has received final payment from or on behalf of the Buyer. If a Product is sold to a Buyer using a credit card or any other payment method authorized by the Marketplace, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. For purposes of clarity, in the event ThingPark refunds the applicable Sale amount (or a portion thereof) to a Buyer upon request by the Seller or any authorized third party, You agree and acknowledge that you will not receive and will have no right to receive a Revenue Share on that portion of the Sale amount that was refunded
ThingPark reserves the right to modify this revenue sharing.
10.3. Sale outside the ThingPark Marketplace. If a purchase of a Buyer that initially purchased Seller Products through the ThingPark Marketplace is completed afterwards or If the Seller is informed about a customer project or tender by the Actility sales team or through the Marketplace, a “Project Protection Acknowledgement / Request” process will prevail. If transactions are performed outside of ThingPark Marketplace (off-platform transaction), the Seller shall immediately report in writing the transaction details to ThingPark MarketPlace. In these instances, and in consideration of ThingPark MarkePlace’s initial role in marketing and offering the Seller’s Products, the Seller agrees to pay the ThingPark Marketplace a Commission Fee of (% to ThingPark Market for any sales within 12 month from last sales on platform.
10.4. Payment by ThingPark. Subject to the terms of this Agreement, approximately thirty (30) days after the end of the calendar month in which the applicable Sale is made, ThingPark will make available to you a report detailing Sales of Products and corresponding Revenue Share along with payment of the Revenue Share due in connection with such report. All payments will be made in Euros. You agree to provide ThingPark with information on a valid bank account in your name, and ThingPark will make payments to that account via Electronic Funds Transfer ("EFT"). ThingPark is entitled to accrue and withhold payments, without interest, until the total amount due to You (net of any tax withholding, as further described below) is at least 300 Euros. If ThingPark pays you a Revenue Share on a Sale and later issues a refund or credit to the Buyer for such Sale (or receives a chargeback related to the Sale), ThingPark may offset the amount of the Revenue Share that ThingPark previously paid you against future Revenue Share or other amounts that would otherwise be payable to you under this Agreement, or require you to remit that amount to ThingPark. ThingPark may also withhold and offset sums you owe to ThingPark against amounts that are payable to you. You agree that any fees charged by your bank in connection with wire transfers pursuant to this Section are solely your responsibility. When this Agreement terminates, ThingPark may withhold all Revenue Share due for a period of sixty (60) days from the date they would otherwise be payable, in order to ensure ThingPark's ability to offset any Buyer refunds or make any other offsets to which ThingPark is entitled. If less than a threshold is left, no payment will be due by ThingPark.
10.5. EFT fees. All EFT fees are deducted from remittance transfer for 1 euro per wire transfer in Europe and 10 Euros per wire transfer outside Europe.
10.6. Use of Certain Information. ThingPark shall only use your banking and payment information for purposes related to this Section 9 (Payment Terms). ThingPark shall not disclose your sales and related financial data to third parties. The foregoing sentence notwithstanding, ThingPark may use or disclose aggregated sales and other financial data related to the ThingPark Marketplace, which may include your sales and related financial data but does not identify you or your data specifically.
10.7. Taxes. As described in this Agreement, ThingPark is responsible for taxes calculation, adjust total price order to include taxes, collecting the total order amount and remitting any taxes imposed on sales of Products to Buyers. You are responsible for any income or other taxes due and payable resulting from ThingPark's payments to You. Accordingly, unless otherwise stated, the amounts due to You hereunder are taxes included applicable to such payments. ThingPark maintains the right to deduct or withhold any applicable taxes payable by You from amounts due from ThingPark, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to You.
10.8. Fraud Management. In order to fight against fraud (non-delivery to customers, defaulted payments, ...) or inappropriate behavior by Seller (claims, bad ratings or low satisfaction rate, ...) and ensure optimal quality for Service Users, Sellers’ personal data on the site shall be processed by ThingPark to determine fraud risk and trust levels associated with each Seller account. As part of this analysis, ThingPark may question its service providers specializing in the prevention of risks to refine its analysis. Some of these service providers shall be sent details of the results of the analysis and may use them in their own incident files. Some data on the terminal associated with the Seller's account may also be transferred to the United States. This transfer falls within a "SafeHarbor" certification, to ensure a level of data protection comparable to that of the French legislation (Decision 2000/520/EC of the European Commission of 26 July 2000). Messages exchanged between the Seller and Buyer through ThingPark Marketplace shall be archived by ThingPark and may be used to prove maladaptive behavior on the Seller's part. Fraud Management costs of charge back shall be deducted from the next remittance to the Seller and will be based upon: the recovery of the original amount that generates the charge back and the fixed cost of 20 (twenty) Euros per charge back.
11 Seller Assessment
ThingPark provides Buyers with means to assess the performance of Sellers at the end of the confirmation of receipt of products ordered, thus enabling Buyers to choose products from Sellers with the best profiles, who comply with the Terms and Conditions.
The assessment shall be based on an evaluation criteria and the awarding of stars.
12 ThingPark Control of Marketplace
ThingPark may determine at its sole discretion to make available or list any Marketplace Product through the ThingPark Marketplace. ThingPark may stop any transaction, or take other actions as needed to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect Buyers. Inclusion of a Marketplace Product in the ThingPark Marketplace does not relieve you of responsibility to ensure the Marketplace Product complies with this Agreement or to perform other obligations under this Agreement.
13 Term and Termination
13.1. Term. The term of this Agreement (the "Term") will begin on the date of the acceptance of the Agreement it and will continue until You or ThingPark terminates it.
13.2. Termination Rights. Either ThingPark or You are entitled to terminate this Agreement and access to your account (and/or this Agreement with respect to any particular Product with thirty (30) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (a) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, or (b) the party breaches its confidentiality obligations under this Agreement, infringes or misappropriates the terminating party's intellectual property rights.
13.2.1. Notwithstanding anything to the contrary in this Agreement, immediately upon notice to You (or with the notice specified by ThingPark at the time), ThingPark may also terminate this Agreement (and/or terminate or suspend either your account on the Marketplace or this Agreement with respect to any particular Product under the following circumstances: (1) ThingPark ceases to operate the Marketplace, (2) you violate ThingPark's Marketplace Guidelines, or (3) ThingPark determines (in its discretion) that your participation in the Marketplace could result in legal or business liability to ThingPark or any third party or otherwise harm the Marketplace or other Marketplace Sellers or users.
13.3. Transition. Following any termination or expiration of this Agreement or withdrawal of your Product from the Marketplace, in ThingPark's discretion, (a) ThingPark may continue to fulfill any Buyer orders for Products pending as of the date the termination takes effect, and (b) ThingPark will use reasonable efforts to take down the listing for your Products within forty-five (45) days after termination (the "Transition Period"), but in any event ThingPark may continue to make available Paid-via-ThingPark Products for further access, downloads or re‐downloads by existing Buyers of those Products for the duration of the Buyer's license or subscription to the Products.
13.3.1. Prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible doing the following, consistent with ThingPark's guidance and instructions:
- arranging for ongoing support and maintenance (including New Versions) for your Products for all Buyers who have purchased such rights, and
- communicating such matters accurately and in a positive and professional manner to Buyers. If specified by ThingPark, the Transition Period may commence upon a notice of termination rather than the effective date of termination. For the sake of clarity, after termination, you are not obligated to provide any New Versions of your terminated Products to ThingPark for distribution under this Agreement thereafter, but ThingPark's post-termination rights in this paragraph will apply for the latest version of the Product you provided to ThingPark hereunder (and any prior version).
13.4. Effect of Termination; Survival. Unless otherwise specified by ThingPark: (a) all EULAs and associated Buyer licenses and subscriptions to Products will survive termination or expiration of this Agreement in accordance with their terms. The following sections of this Agreement will survive termination or expiration of this Agreement and any Transition Period: Section 9 (Financial Terms) 11(Term and Termination), Section 16 Disclaimer and Limitation of liability.
14 Representations and Warranties
You represent and guarantee:
14.1. You are at least 18 years of age and are able to form a legally binding contract. If Seller is a business or other legal entity and not an individual, then the individual entering into this Agreement on Seller's behalf represents that she or he has all necessary legal authority to bind Seller to this Agreement;
14.2. You have the full right, power, and authority to enter into and fully perform this Agreement;
14.3. Before providing ThingPark any Content or listing Content in the ThingPark Marketplace, You will have obtained the rights necessary for the exercise of all rights granted under this Agreement and to Buyers in relation to the Content, and you will be solely responsible for and will pay any licensors or co‐owners any royalties or other monies due to them related to such Content;
14.4. None of the following will violate any Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) the Content; (iii) the sale or distribution of the Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Content;
14.5. You will immediately notify ThingPark if you unexpectedly lose any Intellectual Property Rights related to your Marketplace Add-ons or become aware of a third party claim related to these rights;
14.6. Your Content will not contain any viruses, spyware, "Trojan horses," or other "malware" or harmful code, and will not cause injury to any person or damage to any property; and
14.7. You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to Buyers (e.g., as part of a Seller EULA) based on your use of third party "open source" software or other third party intellectual property in any Add-on. You will also promptly make available to ThingPark, Buyers and any other third party that is entitled to it, the source code corresponding to any Add-on or portion thereof if and in the manner required by applicable third party terms and conditions. ThingPark's exploitation (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third party terms or agreements of any kind.
15.1. By ThingPark. Subject to the terms and conditions of this Agreement: (1) ThingPark shall defend you of a Paid-via-ThingPark Products from claims by third parties alleging that the ThingPark Marketplace or Guidelines used in connection with such Add-on infringes such third party's U.S. or Australian copyright or trademark and (2) ThingPark shall pay damages finally awarded by a court of competent jurisdiction against such Seller for such a claim or, if ThingPark settles the claim, the settlement amounts. ThingPark's obligations in this Section 13 apply only to the ThingPark Marketplace and Guidelines themselves and not to any Marketplace Add-ons, other ThingPark products or services, or other third party content hosted on or used with the ThingPark Marketplace and Guidelines, and in any case ThingPark's obligations do not apply if the alleged infringement, misappropriation or violation resulted from any modifications, combinations, or unauthorized use of the ThingPark Marketplace or Guidelines. As a condition to ThingPark's obligations under this Section 12.1, you must provide ThingPark (i) prompt written notice of the claim (and in any event notice in sufficient time for ThingPark to respond without prejudice), (ii) the exclusive right to control and direct the investigation, settlement and defense (if applicable) of the claim, and (iii) all reasonable necessary cooperation. This Section 12.1 sets forth ThingPark's sole liability and your exclusive remedy with respect to third party claims of intellectual property rights infringement.
15.2. By You. You will indemnify, defend and hold ThingPark and its subsidiaries (including its respective affiliates, officers, directors, employees, contractors and assigns) harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys' fees) arising out of any claim relating to any Content or the use of Content (including any claims made by or arising from Buyers), or from any breach of your representations, warranties or obligations set forth in this Agreement (individually, a "Claim," and collectively, the "Claims"). You will not consent to the entry of a judgment or settle a Claim without ThingPark's prior written consent, which may not be unreasonably withheld. If you do not promptly assume and conduct the defense of a Claim or take reasonable action to settle any such Claim after being provided with sufficient reasonable advance notice to evaluate the Claim, then ThingPark may take control of the defense (without limiting your indemnification obligations). Your obligations under this Section 12.2 are independent of your other obligations under the Agreement.
16 ThingPark Confidential Information
16.1. Definition. All information disclosed by ThingPark that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is "Confidential Information". Confidential Information includes non-public aspects of the ThingPark Marketplace and ThingPark's applications; non-public aspects of third-party applications listed in the ThingPark Marketplace to which you obtain access as a result of the relationship between you and ThingPark under this Agreement; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and ThingPark under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to You before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to ThingPark or anyone else.
16.2. Your Obligations. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide ThingPark with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at ThingPark's cost, if ThingPark wishes to contest the disclosure.
16.3. Injunctive Relief. In event of actual or threatened breach of this Section 13, ThingPark shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.
17 Information You Provide Is Not Confidential
17.1. You understand and agree that ThingPark develops its own products and services and works with many other sellers and developers, and either ThingPark or these third parties could in the future develop (or already have developed) products similar to yours.
17.2. You should not provide to ThingPark any information that you consider confidential and you agree that ThingPark is not subject to any confidentiality obligations or use restrictions related to information that you may provide to us in relation to this Agreement. You expressly agree that neither this Agreement nor your participation in the Marketplace limits ThingPark's right to develop or have developed for it products, concepts, systems or techniques that are similar to or compete with any Marketplace Add-on or any other products, concepts, systems or techniques contemplated by or embodied in information you disclose to ThingPark. For clarity, however, this paragraph, in itself, does not grant ThingPark any license under your intellectual property rights.
18 ThingPark Trademarks/Publicity
You will: (i) only use the ThingPark Marks in the form and manner as set forth at http://www.ThingPark.com/company/trademarkand only in connection with the sale of your Marketplace Add-ons in the ThingPark Marketplace; (ii) not register any domain names that contain any terms that are the same or similar to any ThingPark Marks; and (iii) upon expiration or termination of this Agreement for any reason, immediately cease all use of the ThingPark Marks, unless you are otherwise authorized to continue using the ThingPark Marks pursuant to a separate written agreement with ThingPark. "ThingPark Marks" means the trademarks, trade names, service marks and logos owned or otherwise used by ThingPark. Nothing contained herein shall grant you any ownership right in the ThingPark Marks.
19 Disclaimers and Limitations of Liability
19.1. Disclaimer of Warranties. THE THINGPARK MARKETPLACE AND ANY THINGPARK MATERIALS ARE PROVIDED "AS IS" AND THINGPARK EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
19.2. Limitations of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 ABOVE: (A) NEITHER YOU NOR THINGPARK SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER YOUR OR THINGPARK'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE THINGPARK MARKETPLACE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THINGPARK'S MARGIN IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. FOR THE PURPOSES OF THIS AGREEMENT, "THINGPARK'S MARGIN" MEANS THE AMOUNTS RECEIVED BY THINGPARK FROM SALES OF YOUR ADD-ONS, MINUS THE REVENUE SHARE THINGPARK HAS PAID YOU.
19.3. Basis of Bargain; Failure of Essential Purpose. The parties have entered into this Agreement relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in this Agreement and agree that such provisions are an essential basis of the bargain between the parties. The parties further agree that all such limitations, disclaimer and other provisions will survive and apply even if any limited remedy is found to have failed of its essential purpose.
20 Agreement Changes
This Agreement relates to the broader ThingPark Marketplace, which will change over time. ThingPark reserves the right to change this Agreement at any time in its sole discretion with the changes to become effective thirty (30) days after notice. ThingPark will give you notice of the changes by posting an updated version of this Agreement online or by emailing you at an email address you have provided. If You do not agree to any of the proposed changes, You may terminate this Agreement prior to the date on which the changes were to take effect by (i) providing written notice to ThingPark and (ii) terminating this Agreement and withdrawing all of your Add-ons from the Marketplace. If You so terminate the Agreement, the proposed changes will have no effect on you. However, if You do not so terminate then your continued participation in the ThingPark Marketplace after changes to this Agreement take effect will constitute your acceptance of the changes.
21 Dispute Resolution; Governing Law
21.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Paris (France). All negotiations and arbitration proceedings pursuant to this Section 18.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English or in French.
21.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of France, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 18.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of Paris, France and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Paris, France, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, ThingPark may bring a claim for equitable relief in any court with proper jurisdiction.
21.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of this Section 18, nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
This Agreement may not be amended except as provided under the terms of this Agreement. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word "including" will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors. Each party will bear its own costs and expenses in performing this Agreement. ThingPark's failure to enforce any provision of this Agreement will not constitute a waiver of ThingPark's rights to subsequently enforce the provision. ThingPark may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that ThingPark's affiliates, contractors and service providers may exercise all rights of ThingPark under this Agreement, including ThingPark's license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without ThingPark's prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) You give ThingPark written notice of any such assignment at least ten business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement; however, in the event that ThingPark determines that such assignment is to a competitor of ThingPark, ThingPark may terminate this Agreement upon notice to You. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by ThingPark via email, via a posting in the Marketplace Guidelines, or via a message through your my.ThingPark.com account, or (ii) by you via email to legal@ThingPark.com or to such other email or physical addresses as ThingPark may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.
Last Revised: October 7, 2016.