Terms of service

PRODUCT LISTING AGREEMENT

This website (the “Website”), owned by Viva Shop Live, Inc., its affiliates, or agents (referred to as “Viva Shop Live, Inc.,” “Company,” “us,” “we,” or “our” below), provides an e-commerce platform allowing you to register, list, offer for sale, and sell your products (the “Products”) to customers, subject to our Terms of Service and each of our applicable policies (collectively, such services, including any new features and applications, and the Website, the “Service(s)”). By using the Services, you expressly agree to the following provisions of this Product Listing Agreement (this “Agreement”).

1. Payments; Commission

We shall collect all revenue from sales of the Products facilitated by the Website (such sales, “Website Sales”). On the first of each calendar month, we shall remit to you in immediately available funds eighty-five percent (85%) of the revenue from Website Sales made in the prior month, and we shall retain the remaining fifteen percent (15%) of such revenue as commission for payment in full of the Services performed, inclusive of all credit card processing fees (the “Commission”).

2. Shipping

For each Website Sale, you shall be responsible for shipping Products to customers and for any and all related costs.

3. Taxes

We shall pay all applicable taxes, including, but not limited to, estimated taxes, incurred as a result of the Commission. You shall pay all applicable taxes, including, but not limited to, estimated taxes, incurred in connection with all other revenue from Website Sales, and shall indemnify and hold us harmless with respect thereto.

4. Promotional Service

At your election, you may participate in our sampler box or other promotional programs (the “Promotion”) for one or more Products listed on the Website by shipping samples of each such Product (the “Samples”) at your sole cost to an address to be provided by us upon request. We shall market, promote on the Website and our social media channels, and distribute the Samples in connection with the Promotion and shall retain all revenue resulting from the Promotion.

5. Trademarks; Intellectual Property

We acknowledge that you are and shall remain the exclusive owner of all intellectual property in connection with the Products, including: (i) all recipes, formulations and any modifications or improvements thereto, and specifications, (ii) trademarks, service marks, trade dress, trade names used in connection with the Products (the “Marks”), (iii) associated goodwill, domain names and websites (and their content) that include the Marks, original copyrightable subject matter and any derivative works, including, but not limited to, artwork, graphics, and label copy furnished by, or developed for, you, and other confidential and proprietary information developed by or for you; and (iv) any inventions, discoveries or improvements by you, whether or not patentable including, without limitation, manufacturing processing techniques and equipment, methods and designs for packaging, dispensing or storing of the Products (collectively, the “Intellectual Property”).

6. Indemnification

a. You shall indemnify, defend and hold harmless Viva Shop Live, Inc., its directors, officers, managers, members, shareholders and employees, from and against any and all claims, suits, judgments, losses, expenses, costs of investigation, damages and liabilities (including reasonable attorneys’, expert witness and court reporter fees and expenses) (each, a “Claim”) arising out of or relating to:

  • (a) any damage to any person or property which was caused, or alleged to have been caused, in whole or in part, by your negligent or intentional conduct, performance of its obligations herein, or failure to perform your obligations herein;
  • (b) any claims by governmental authorities with respect to your non-compliance with laws, rules and regulations applicable to the transactions addressed herein, including sale and delivery of the Products;
  • (c) any breach of any of your covenants, representations and warranties herein;
  • (d) any actual, alleged or threatened recall of any Products or customer refunds or payments in connection with recalled Products;
  • (e) any actual or alleged bodily injury to, or death of, any person; damage or destruction to real or tangible personal property; or any other damage or loss by whomsoever suffered, claimed to result in whole or in part from the Products;
  • (f) any actual or alleged defect in the Products, whether latent or patent, including any alleged failure to provide accurate, truthful or adequate warnings, labeling or instructions or statements in advertising; and
  • (g) any actual or alleged infringement of the intellectual property rights of any third party in connection with the Products or Intellectual Property, including without limitation that Viva Shop Live, Inc.’s sale, promotion, or use of any Intellectual Property or Products infringes or misappropriates the patent, copyright, trademark, trade dress, trade secret intellectual property, or confidential property rights of any third party.

b. Any entity entitled to indemnification shall give written notice to the indemnifying party of any Claims that may be subject to indemnification, promptly after learning of such Claim. Within a reasonable time after receiving such notice, the indemnifying party shall assume the defense of such Claims with counsel reasonably satisfactory to the indemnified party. The indemnified party shall cooperate with the indemnifying party in such defense at the indemnifying party’s expense. The indemnified party may, at its option and expense, be represented by counsel of its choice in any action or proceeding with respect to such Claim. The indemnifying party shall not be liable for any litigation costs or expenses incurred by the indemnified party without the indemnifying party’s written consent, such consent not to be unreasonably withheld. The indemnifying party shall not settle any such Claim if such settlement (a) does not fully and unconditionally release the indemnified party from all liability relating thereto or (b) adversely impacts the rights granted to the indemnified party under this Agreement, unless the indemnified party otherwise agrees in writing. Notwithstanding the foregoing, the indemnifying party is not required to indemnify the indemnified party against the gross negligence or willful misconduct of the indemnified party.

7. Compliance with Laws

You shall perform your obligations under this Agreement in compliance with all applicable federal, state and local laws, ordinances, rules, regulations, codes or orders (collectively, “Applicable Law”). You represent and warrant that each Product delivered to a customer in connection with a Website Sale shall be undamaged, free of defect, and compliant with Applicable Law and prevailing industry standards for health, safety, storage, or handling.

8. Governing Law; Venue

This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, excluding its conflict of law principles. Any action to declare or enforce any rights or obligations under this Agreement shall be brought only before a federal or state court of competent jurisdiction in the State of Michigan.

9. Relationship of Parties

The relationship between you and Viva Shop Live, Inc. shall be governed by the terms and conditions of this Agreement. You and Viva Shop Live, Inc. shall each be treated as an independent party with respect to the other. Nothing in this Agreement shall be construed to make any party hereto an agent, employee, franchisee, joint venturer, partner or legal representative of the other. A party hereto shall not have, nor represent itself to have, any authority to act on the other’s behalf.

10. Notices

All notices and other communications given hereunder shall be in writing and shall be considered to have been given (i) upon personal delivery; (ii) upon delivery if sent by a nationally or internationally recognized overnight courier; (iii) by email on the date sent; (iv) on the third day after the date mailed, by certified or registered mail; or (v) by displaying notices or links to notices generally on the Website on the date such notices or links were displayed on the Website.

11. Assignment

You may not assign, delegate or otherwise transfer this Agreement or any of your rights or obligations hereunder without our written approval.

12. Severability

If any provision of this Agreement shall be held invalid, it shall not affect the validity of the remainder of this Agreement.

PLEASE NOTE that the terms of this Agreement are subject to change by Viva Shop Live, Inc. in its sole discretion at any time. When changes are made, Company will make a new copy of this Agreement available at the Website. If we make any material changes, and you have registered with us to create an account, we will also send an e-mail to you at the last e-mail address you provided to us. Any changes to this Agreement will be effective immediately for new users of the Website and/or Services and will be effective thirty (30) days after posting notice of such changes on the Website or dispatch of an e-mail notice of such changes for existing users. We may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.