Marketplace Planner Agreement
WHEREAS, Planner is in the business of providing wedding planning services ("Services");
WHEREAS, Vowlá provides a platform for select third party planners to offer their Services to clients who wish to hire a wedding planner on the Vowlá website and mobile application (together the "Vowlá Platform");
WHEREAS, Planner desires to offer its wedding planning Services through the Vowlá Platform;
WHEREAS, Vowlá and Planner desire to set forth in this Agreement the Terms of Service that will govern Planner's offer and sale of Services on the Vowlá Platform.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
For purposes of this Agreement, capitalized terms will have the meaning specified in their contextual paragraph, or where not otherwise defined herein, will have the meanings specified below:
"Affiliate" will mean any business that directly or indirectly is controlled by or is under common control with Vowlá, Inc.
"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.
"Intellectual Property" means any trademark, trade name, service mark, copyright, patent, logo, moral right, trade secret and any other intellectual property right arising under any Law and all ancillary and related rights, including all rights of registration and renewal and causes of action for misappropriation, infringement or violation of any of the foregoing.
"Law" shall mean any law, ordinance, 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.
"Planner Content" shall mean all images, service information and content including without limitation, the service and client data, (i) provided by Planner to Vowlá or its Affiliates for use in connection with the Vowlá Platform and (ii) otherwise made available by Planner to Client on the Vowlá Platform (e.g. through Planner's distribution or hosting of such images, content or information).
2. Planner Onboarding
In order for Planner to start listing its services on the Vowlá Platform, Vowlá will open on Planner’s behalf a Planner Marketplace account on the Vowlá Platform. Planner will be required to upload all necessary Planner Content and information within a reasonable time after the opening of Planner’s account and prepare the Planner profile to go live on the Vowlá Platform. If Planner fails to take any such actions within a reasonable timeframe, Vowlá may suspend the account.
3. Planner's Content License Grant
3.1 License for Content
By entering into this Agreement and listing an item, Planner grants, as well as represents and warrants that it has the right to grant to Vowlá 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 Planner Content throughout the Vowlá Site and all Affiliate properties and on those marketplaces that Vowlá participates
3.2 License for Marks
Planner hereby grants Vowlá and its Affiliates and marketing partners a non-exclusive, royalty-free, non-transferable license to publish, use, reproduce, distribute, transmit, and display Planner's name, trademarks, service marks and logos ("Planner's Marks") during the Term in connection with the Vowlá Platform.
4. Service Information and Other Content
Planner agrees and warrants that any and all Planner 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 law, statute, ordinance or regulation; (d) will not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; and (e) will not create liability for Vowlá. Planner agrees that any and all Planner Content may be publicly displayed by Vowlá as Vowlá sees fit and at no charge to Vowlá. Planner will only provide content for services that fit into the categories or parameters approved in writing by Vowlá. Planner may provide Vowlá with Content for Services in additional categories or parameters only upon the prior written consent of Vowlá (which, in this case, may be given by email). At its request, Vowlá will have the option to review Planner's complete Service catalog on a regular basis and in a mutually agreed upon format in order to review assortment and style decisions. If Planner receives Client ratings or reviews for its Services directly or through third parties, then Vowlá and Planner may mutually agree to have Planner provide such ratings and reviews to Vowlá as part of the Content. Vowlá will not have any responsibility for or liability with respect to Planner's Content.
4.2 Excluded Services
You hereby represent and warrant that you will not list, offer or sell services that: (a) are deceiving or fraudulent; (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 offer; (d) contain any viruses, Trojan horses, worms, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) violate any law, statute, ordinance or regulation (such as those governing export control or consumer protection); (f) contain any material that is obscene, pornographic or that contains child pornography; and/or (g) create liability for Vowlá.
5. Service Compliance and Certification
5.1 Compliance with Laws and Certification
Planner will comply with and ensure that all Services comply with all relevant and applicable regulations and certification requirements under applicable Law.
If Planner intends to claim that Planner is certified by the American Association of Wedding Planners or by the Association of Bridal Consultants, then Planner shall provide Vowlá with written certification from such association evidencing Planner’s certification.
6. Fees and Commissions
Vowlá does not currently require Planners to pay commission. Vowlá may, at any time and in its sole discretion, amend its commission policy to require Planners to compensate Vowlá through a commission on Planners’ earnings derived in connection with the Planners’ use of the Vowlá Platform.
6.2 Planner Payment
Currently, payment by Client for Services rendered by Planner are made directly to Planner. If Vowlá implements a commission policy, commission fees and other amounts owed to Vowlá (the “Vowlá Commission”) must be deducted from the amounts to be received by Planner from Clients for the hiring of Planner for Planner’s Services through the Vowlá Platform (such resulting amount, "Planner Payment"). IF Vowlá implements a commission policy, Planner agrees to deposit an amount equal to Vowlá’s commission for Planner’s Services provided after the implementation of the commission policy with Vowlá within seven days of forming a Service contract with Client. Payment for Vowlá Commission must be made to Vowlá via paper check, money order, or wire transfer.
7. Cancellations and Refunds
Planner is responsible for processing all Client cancellations and refunds, and/or Client service price adjustments. Planner will provide Vowlá with its Client refund and price adjustment policies ("Client Service Policies") for display on the Vowlá Platform. Planner's Client Service Policies for Services sold through the Vowlá Platform will be no less favorable to Clients than Planner's most favorable policies offered on Planner's own Site or on other Marketplaces for such Services. If Planner does not provide such Client Service Policies to Vowlá prior to the Effective Date, then Planner shall be deemed to have adopted Vowlá’s standard Client service policies as may be adopted and/or revised from time to time. Planner shall notify Vowlá of any material changes to Planner's Client Service Policies at least fourteen (14) days prior to Planner's implementation of such changes, provided, however, that any such changes shall not be effective with respect to Services until the revised Planner Client Service Policy has been posted to the Vowlá Site.
If a Client is due a cash refund, Planner will notify Vowlá in writing and include other related information requested by Vowlá (e.g. reason for refund). For cash refunds, Planner will provide the applicable refund of monies paid to Planner for Planner’s Services, and Vowlá will refund to Planner the amount of the Vowlá Commission attributable to the amount of the Client refund (excluding any refunded taxes), less the lesser of: (i) five hundred dollars ($500.00); or (ii) twenty percent (20%) of such Commission Fee; provided that Vowlá shall have no liability for refunds offered by Planner in excess of the total price for the Planner’s Services.
8. Parity with Planner's Sales Channels
Planner will maintain parity between the Services it offers through the Planner’s own website or other mediums through which it offers its Services and the Services offered on the Vowlá Platform by ensuring that at all times: (a) the Service price and every other term of offer and/or sale of the Services is at least as favorable to Vowlá users as the most favorable terms upon which a service is offered and/or sold via the Planner Site or by Planner on any other third party marketplace; (b) Client service for the Services is at least as responsive and available and offers at least the same level of support as the most favorable Client service offered in connection with the Planner site; and (c) the Content, including without limitation, any service images, description and other information regarding the Services, provided by Planner to Vowlá for the Vowlá Platform (i) is of at least the same level of quality as the highest quality information displayed or used on the Planner site or provided by Planner to any other third party marketplace and (ii) provides users of the Vowlá Platform with at least as much product information, images and other content as the information provided by Planner on any other site. If a Client becomes aware of any non-compliance with (a) above, Planner shall promptly notify Vowlá and compensate adversely affected Clients in accordance with the procedures set forth in Section 7 for providing Clients with cash refunds.
9. Ownership and Use of Transaction Information
9.1 Vowlá shall own all Transaction Information
10. Ratings and Reviews
Vowlá may use mechanisms that rate or review, or allows Clients to rate or review, Planner's Services and Planner's performance as a Planner and Vowlá may make these ratings publicly available. Vowlá will have no liability to Planner for the content or accuracy of any ratings or reviews. Planner shall have no ownership interest in or license to use any rating or reviews posted on the Vowlá site.
11.1 Taxpayer and Planner of Record
Planner acknowledges that Vowlá is not an employer of Planner and has not and will not hire Planner to perform any Services. Planner is the taxpayer and an independent contractor of Client, not Vowlá, and must comply with all applicable tax Law. Planner shall be solely liable for any tax liabilities, including without limitation, any penalties or interest. All references to "tax" or "taxes" in this Agreement shall mean all taxes and fees, including without limitation, sales, income taxes, and all related ancillary taxes and fees, including without limitation.
11.2 Planner Warranty
Planner is solely responsible for determining the amount of income, sales, use or other taxes owed as a result of the sale of Services, and is solely responsible to report and remit any such income, sales, use or other taxes required under applicable Law. Planner hereby represents and warrants that it will (a) identify all states in which it has an obligation to remit income, sales, and/or use tax during registration, (b) keep such information updated at all times. Upon the request of Vowlá, Planner will immediately provide verifiable proof acceptable to Vowlá of Planner's remittance of all income, sales/use tax collected as a result of its provision of Services through the Marketplace. If Planner is unable to provide such proof to the satisfaction of Vowlá, Vowlá may withhold and retain all such amounts and/or terminate Planner's Marketplace account. Planner acknowledges and agrees that Vowlá has no responsibility to collect, report or remit sales, use or any other applicable taxes in connection with your Services.
If any governmental authority determines that income, sales, use or other taxes are owed by Vowlá or Planner on sales of Services through the Vowlá Platform or that Planner has nexus in a state or local jurisdiction, or is otherwise responsible for the remittance or reporting of taxes (and all related penalties and interest) related to the sale of any Services, whether or not as a result of any action or inaction by Vowlá, Planner (i) agrees that Planner 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 Vowlá shall have no liability to Planner or any governmental authority for such taxes or penalties, and (iii) will not seek any reimbursement from Vowlá for such taxes and related penalties. Planner shall indemnify and hold harmless Vowlá 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 Vowlá or Planner has a tax remittance or reporting obligation in any State on account of sales of Services through the Vowlá Platform, whether or not due to any action or inaction by Vowlá. Vowlá may immediately charge Planner'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 Planner (including, without limitation, any Planner Payments).
12. Information Security
Planner 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 Vowlá or compromise the security of Vowlá Confidential Information, including without limitation, the Transaction Information. Planner shall be responsible for any costs, damages or legal notification procedures resulting from any breach of this Section.
13. Confidential Information
Both Parties acknowledge that either Party may receive ("Receiving Party") Confidential Information from the other Party ("Disclosing Party") during the Term, and such Confidential information will be deemed to have been received in confidence and will be used only for purposes of this Agreement. The Receiving Party shall use the Disclosing Party's Confidential Information only to perform its obligations under this Agreement and disclose the Disclosing Party's Confidential Information only to the Receiving Party's personnel, contractors and affiliates having a need to know the information for the purpose of 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. 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 personally identifiable information ("PII" as required by this Agreement and any applicable Law, (ii) any trade secrets of the Disclosing Party as long as such information is deemed a trade secret and (iii) the terms of this Agreement. Planner agrees that Vowlá may share Planner's Confidential Information with its Affiliates for internal use only.
The term "Confidential Information" means all information communicated by the disclosing 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) all trade secrets, (c) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, (d) information relating to business plans, sales or marketing methods and Client or supplier lists or requirements, and (e) all information identified as confidential to which Receiving Party has access in connection with the subject matter hereof, whether before or after the Effective Date. Planner shall also treat all Transaction Information, payment card data, tax codes, and PII as Confidential Information.
The obligations of either Party under this Section will not apply to information that the Receiving Party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality; (b) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act or failure to act by the Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure; (c) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by such third party or the Receiving Party; or (d) is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party.
13.4 Disclosure by Law
In the event the Receiving Party is required by Law, stock exchange requirement 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.
14. Representations and Warranties
Planner hereby represents and warrants to Vowlá the following:
Planner is a corporation, limited liability company, or individual duly organized, validly existing and in good standing under the laws of the state where Planner does business and Planner has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval. This Agreement constitutes the legal, valid, and binding obligations of Planner. Planner has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances.
14.2 No Conflicts
Neither the execution and delivery 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.
15. Term, Termination and Suspension
This Agreement shall commence on the Effective Date and shall continue ("Initial Term") unless terminated in accordance with the Terms of Service set forth in this Agreement.
15.2 Termination for Breach
This Agreement may be terminated at any time by either Party if the other Party breaches any provision of this Agreement, and has failed to cure such breach within thirty (30) days of the receipt of written notice of breach from the non-breaching party, stating the nature and character of the breach. Vowlá may immediately terminate this Agreement if Planner fails to provide quality or adequate Services to a Client or if Planner fails to meet any of its tax obligations, including without limitation the requirement of Planner to provide documentation proving that Planner has remitted relevant taxes or fees to the appropriate jurisdiction(s) in accordance with Section 11; provided that Planner has been given written notice of such failure and has not cured such failure within five (5) days of receipt of such notice. 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 fraud, money laundering or terrorist activity). Upon termination of this Agreement under this Section, if for breach of Planner, any fees due to Vowlá at the time of terminational shall immediately come due and; if for breach of Vowlá, any prepaid but unused amounts by Planner up to the date of termination shall be refunded to Planner. 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.
15.3 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; (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.
15.4 Vowlá Termination
Vowlá may terminate this Agreement for any reason by giving thirty (30) days' prior written notice to Planner.
Vowlá may immediately suspend Planner's listing of Services on the Vowlá Platform for (i) Planner's failure to comply with any service level agreement set forth in this Agreement, (ii) Planner's failure to meet any tax obligations set forth in this Agreement, or (iii) any breach of Planner's information security obligations set forth in Section 12 or breaches to Planner's systems, until Planner has resolved such failure to Vowloká’s reasonable satisfaction. Planner will work diligently and cooperate with Vowlá to promptly remedy any service level, tax or information security failures within a reasonable period of time.
15.6 Post-Termination Obligations
Planner will continue to have obligations under this Agreement after termination of the Agreement, including without limitation, the obligation to (i) provide Client service to Clients who purchased Services on the Vowlá Platform, (ii) pay any invoices delivered by Vowlá in connection with the Agreement, (iii) notify Vowlá and Clients of any recalls of its Products, (iv) remit any taxes applicable to the proper jurisdiction(s) and (v) immediately notify Vowlá of any security breach that allows a third party to view or access or otherwise compromise any Transaction Information.
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, Vowlá's rights to use Planner's suggestions and feedback, limitations of liability, choice of law, jurisdiction, and venue) shall survive its termination.
16.1 Indemnification Obligations
Planner will defend, indemnify and hold harmless Vowlá 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 Planner's representations, warranties, or obligations set forth in this Agreement or any Planner breach of Vowlá's Terms and Conditions; (b) Planner’s violation of any law, regulation or third-party right; (c) Planner's own website or other sales channels, Planner's Services (including the advertisement, offer, sale or refund of any of Planner's Services), Planner's Content, any actual or alleged infringement of any intellectual property or proprietary rights by Planner's Services or Content; (d) personal injury, death or property damage arising from Planner's Services; and (e) 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 Services on the Vowlá Platform, specifically excluding however, any taxes related to Vowlá's net income. The term "taxes" is further defined to include and refer to any class action or qui tam legal claims grounded in an allegation or allegations that Vowlá bears some civil or criminal liability for over- or under-collection of any tax or fee on sales of Services offered by Retailer.
16.2 Procedure for Indemnification
Upon receipt of notice, from whatever source, of Claims against Vowlá for which Planner is obligated to indemnify Vowlá, Planner immediately shall take necessary and appropriate action to protect Vowlá's interests with regard to the Claims. Vowlá shall notify Planner of the assertion, filing or service of any Claims of which Vowlá has knowledge, as soon as is reasonably practicable.
Planner, in the defense of any Claim, shall not, except with the prior written consent of Vowlá, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term the giving by the claimant or plaintiff to Vowlá or a release from all liability and blame with respect to the Claim. Vowlá shall have the right at all times to accept or reject any offer to settle any Claim against it.
Planner represents and warrants that it will maintain during the entire term of the Agreement commercial, general liability insurance, including Commercial General Liability and Completed Operations coverage, in the minimum amount of coverage of $1,000,000.00 per occurrence, with a general aggregate coverage of not less than $2,000,000.00. This insurance coverage will be primary and non-contributing to any other insurance that may apply, and may not be canceled nor modified until at least thirty (30) days prior written notice has been given to Vowlá. The insurance coverage required herein shall be provided by an insurance company or companies acceptable to Vowlá in its reasonable business judgment. Upon request of Vowlá, Planner will promptly provide Vowlá with certificates of insurance evidencing such coverage and naming Vowlá or its designated Affiliate as additional insured.
17. Warranty Disclaimer
THE VOWLÁ MARKETPLACE AND ANY RELATED PRODUCTS, SERVICES, CONTENT, SOFTWARE, ARTWORK, DATA, AND INFORMATION ARE PROVIDED "AS IS." VOWLÁ EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE VOWLÁ MARKETPLACE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR QUALITY OF DATA AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES OR CORRESPONDENCE TO DESCRIPTION. PLANNER AGREES THAT IT'S USE OF THE VOWLÁ MARKETPLACE IS ENTIRELY AT PLANNER'S OWN RISK.
18. Limitation of Liability
THE ENTIRE RISK ARISING OUT OF PLANNER'S USE OF THE VOWLÁ MARKETPLACE, THE USE OF ANY SERVICES OFFERED IN CONNECTION WITH THE MARKETPLACE, AND/OR THE USE OF ANY CONTENT REMAINS WITH PLANNER. IN NO EVENT SHALL VOWLÁ OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS MARKETPLACE PLANNER AGREEMENT, PLANNER'S USE OF THE VOWLÁ MARKETPLACE OR ITS SERVICES, ANY INFORMATION OBTAINED THROUGH THE MARKETPLACE, ANY DELAY OR INABILITY TO USE THE VOWLÁ MARKETPLACE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES TO PLANNER IN CONNECTION WITH THE MARKETPLACE, OR OTHERWISE ARISING OUT OF THE USE OF THE VOWLÁ MARKETPLACE OR THE VOWLÁ PLATFORM WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF VOWLÁ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS MARKETPLACE PLANNER AGREEMENT, THE MAXIMUM LIABILITY THAT VOWLÁ SHALL HAVE IS LIMITED TO THE ACTUAL VALUE OF ANY COMMISSIONS ACTUALLY RECEIVED BY VOWLÁ IN CONNECTION WITH ANY SALES MADE BY PLANNER THROUGH THE MARKETPLACE. PLANNER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND FUNDAMENTAL BREACH OF THIS MARKETPLACE PLANNER AGREEMENT) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
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, by facsimile, 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.
For Planner: The address provided by Planner in the registration process.
For Vowlá, Inc.:
13700 Marina Pointe Dr. STE 1707
Marina Del Rey, CA 90292
Attn: Legal Department
20. Controlling Law and Jurisdiction
The Parties mutually acknowledge and agree that Agreement shall be governed, controlled, interpreted and defined by and under the laws of the State of Delaware and the United States, without regard to the conflicts of laws provisions thereof. Unless waived by Vowlá (which it may do in its sole discretion) the exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the state and federal courts sitting in Los Angeles County, in the State of California. Service of process in any such action may be effected in the manner provided in Section 19 for delivery of notices.
21. Waivers and Amendments
Except as otherwise expressly provided herein, any provision of this Agreement may be amended and the observance of any provision of this Agreement may be waived (either generally or any particular instance and either retroactively or prospectively) only with the written consent of the parties. Any waiver or delay in the exercise by either party of any of its rights under this Agreement shall not be deemed to prejudice such party's right of termination or enforcement for any further, continuing or other breach by the other party. This Agreement shall be controlling over additional or different terms of any order, confirmation, invoice or similar document, even if accepted in writing by both parties, and that waivers and amendments shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall only apply to such provision and shall not render this Agreement unenforceable or invalid as a whole; and, in such event, such provision shall be modified or interpreted so as to best accomplish the objective of such unenforceable or invalid provision within the limits of applicable law or applicable court decision and the manifest intent of the parties hereto.
23. Relationship of the Parties
The parties hereto expressly understand and agree that the Planner is neither an independent contractor nor employee of Vowlá’s 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. Vowlá is purely a marketplace, and Planners are independent contractors of their Clients only.
24. Complete Agreement
This Agreement (and all Exhibits hereto) constitutes the entire understanding and agreement with respect to the subject matter hereof and supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry custom.
Section headings are for reference only and shall not affect the interpretation of this Agreement.
This Agreement may be executed in any number of separate counterparts each of which when executed by and delivered to the other party shall be an original as against the party whose signature appears thereon, but all such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by persons duly authorized as of the date and year first above written.