Additional Terms and Conditions
The following Additional Terms and Conditions (these “Terms & Conditions”) form a part of the Supplier/Seller Agreement (the “Supplier Agreement”) entered into by Lofty and the Supplier (each as defined in the Supplier Agreement) and further govern the relationship between Lofty and the Supplier. Any terms that are capitalized herein and not defined herein have the meaning set forth in the Supplier Agreement. In the event of a conflict between the Supplier Agreement and these Terms & Conditions, the Supplier Agreement controls. The Supplier Agreement and these Terms & Conditions are collectively referred to herein as the “Agreement.” Lofty reserves the right to change or modify these Terms & Conditions at any time, effective when posted at the same location that these Terms & Conditions are posted.
Intellectual Property. Supplier grants to Lofty a non-exclusive worldwide license and right to use, reproduce, license, display, create derivative works, distribute and transmit any photographs, graphics, artwork, text and other content provided by Supplier (collectively, the “Intellectual Property”) in connection with the marketing, promotion, sale or distribution of the items to be listed for sale on Lofty, in any and all media or formats in which such items are marketed, promoted, sold, or distributed. Except as expressly provided herein, neither party will acquire any rights or interest in the other party’s trademarks, trade names, trade dress or other intellectual property, and any goodwill generated therein will inure solely to the benefit of the owner party. Each party reserves all of its rights in and to its trademarks, trade names and trade dress, all graphic images and text contained on such party’s website, and all other intellectual property owned or licensed by such party.
Representations, Warranties & Covenants. Supplier represents, warrants and covenants to Lofty that: (i) The person entering into the Agreement on behalf of Supplier has the authority and full power to do so, and all corporate actions have been taken, and all approvals obtained, that are necessary to make the Agreement binding and enforceable as against Supplier; (ii) Supplier’s performance of the Agreement is not in conflict with, and will not cause an event of default under, any agreement or instrument to which Supplier is a party or by which Supplier is bound; (iii) Supplier has full authority to distribute and use the Intellectual Property and the items listed for sale on Lofty and has full authority and full power to grant to Lofty the right to use such Intellectual Property in the manner set forth above. Such Intellectual Property does not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party; (iv) The items listed for sale on Lofty comply with all, and do not and will not violate any, applicable federal, state, county or local laws, rules, ordinances or regulations (“Applicable Law”); (v) Supplier shall deliver the items in a safe and professional manner, and in accordance with these Terms and Conditions; (vi) Supplier shall perform its obligations under the Agreement in compliance with all Applicable Law and without undue delay; (vii) Supplier is the seller of the items and Lofty’s role is as a marketing partner providing marketing and sales services; and (viii) Supplier will not make or publish any negative or disparaging statements about Lofty.
Indemnification. Supplier agrees to indemnify, defend, and hold harmless Lofty and its affiliated companies, and their respective directors, officers, employees, contractors, stockholders, agents and representatives (the “Lofty Indemnified Parties”), from and against any and all losses, damages, liabilities, penalties, costs of settlement and expenses (including, without limitation, reasonable attorney’s fees and expenses) arising from any claims, suits, proceedings, demands or causes of action (including, without limitation, governmental actions) arising out of, resulting from, or relating to (i) any harm, including, but not limited to, death, bodily injury or property damage occurring or alleged to have occurred as a result of the sale of the items on Lofty or (ii) any actual or alleged breach of this Agreement by Supplier, or the employees, contractors, agents or representatives of Supplier. In the event Supplier fails to indemnify a Lofty Indemnified Party as required pursuant to this Section, Supplier will reimburse such Lofty Indemnified Party for any and all costs and expenses, including without limitation, reasonable attorney's fees and expenses arising out of, resulting from, or relating to the Lofty Indemnified Party's enforcement of such rights.
Confidentiality. Each party (the “Disclosing Party”) may disclose its Confidential Information to the other (the “Receiving Party”). Any such disclosure will be governed by the following provisions (collectively, the “Confidentiality Provisions”): (i) “Confidential Information” means any information of the Disclosing Party that is disclosed by the Disclosing Party to the Receiving Party or that is otherwise learned by the Receiving Party in the course of its business dealings with the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and/or confidential; (ii) Each party agrees not to use any Confidential Information disclosed to it by the other party for its own use or for any purpose other than to carry out its obligations under the Agreement. Each party will ensure that its employees, contractors, and agents will comply with the Confidentiality Provisions and shall be responsible for any breach of this Agreement by any of its employees, contractor or agents. Each party agrees that it will take all reasonable measures to protect the secrecy of and avoid unauthorized disclosure or use of Confidential Information of the other party. Such measures will include, but not be limited to, those measures that the Receiving Party uses to protect its own Confidential Information, which will be no less than reasonable care. Each party agrees to notify the other in writing of any unauthorized disclosure, misuse or misappropriation of Confidential Information of the Disclosing Party; (iii) If the Receiving Party becomes legally obligated to disclose Confidential Information to any governmental entity with jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice and provide reasonable cooperation to the Disclosing Party to allow the Disclosing Party to seek a protective order or other appropriate remedy. The Receiving Party will disclose only such information as is required by the governmental entity and will use its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed; and (iv) All Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party promptly will return or destroy all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) upon the termination of the Agreement or at the Disclosing Party’s written request.
DISCLAIMER OF LIABILITY. LOFTY WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY PROVISION OF THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LOFTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE $100.
- Successors; Assignments. This Agreement will be binding on and inure to the benefit of the parties and their respective successors in interest and assigns. Supplier may not assign any of its rights or obligations under this Agreement without the prior written consent of Lofty.
- Notices. All legal or other notices to be provided under the Agreement will be given in writing and sent by U.S. mail (delivery confirmation requested) or express courier to the applicable party: if to Lofty, to Hammerless, Inc. d/b/a Lofty, 26 Broadway, 22nd Floor New York, NY 10004, Attention: Legal Department; if to Supplier, to the appropriate Supplier representative specified in the Supplier Agreement, at the address provided for such representative. Supplier will notify Lofty of any change in any of the Supplier representatives (or their contact information) as soon as reasonably practicable, but in no event more than ten (10) business days, after such change. All notices will be effective on receipt or where confirmation is required, on confirmation.
- Governing Law; Venue. This Agreement and the rights and obligations of the parties will be governed by and construed according to the laws of the state of New York, without regard to the choice of law provisions that would require or permit the application of the laws of another jurisdiction, and Vendor irrevocably submits to the exclusive jurisdiction of courts of the state of New York and of the United States located in the City of New York with respect thereto.
- Severability. The provisions of this Agreement are severable, and in the event that any provision thereof is determined to be invalid or unenforceable, such invalidity or unenforceability will not in any way affect the validity or enforceability of the remaining provisions.
- Amendment; Waiver. No amendment, waiver, or discharge of any provision of this Agreement will be effective unless made in writing, signed by Lofty and Supplier.
- Entire Agreement; Conflict. This Agreement, including all documents incorporated herein by reference, constitutes the entire agreement between Supplier and Lofty with respect to the subject matter hereof and supersedes all prior agreements. Lofty hereby objects to and shall not be bound by any additional, different or conflicting terms contained in an order or any other document pertaining to the subject matter hereof.