TERMS AND CONDITIONS FOR SELLERS

These Terms and Conditions for Sellers (the “Terms”) constitute a legally binding agreement between you (including any business entity you are acting on behalf of, where applicable) (hereafter, “Seller,” “you,” “your”) and Brandimi, LLC. (hereafter, “Mavigadget,” “Company”, “We,” “Us,” or “Our”). Together the Seller and Mavigadget may be known as the “Parties.” The Terms govern your Seller Agreement with Mavigadget and the use of and access to Our software, mobile applications, platform, services, and other offerings on Our Network of Sites. By signing a Seller Agreement you acknowledge that you are authorized to enter into and agree to be bound by the Terms (“Effective Date”).

DEFINITIONS

Capitalized terms used but not otherwise defined in the Agreement shall have the following meanings:

• Agreement: means these Terms, associated Seller Agreement, Promotional Agreement (including terms concerning duration, promotions, prices, quantities and shipping charges), Purchase Order, Consignment Order, Data Processing Agreement, Privacy Policy, and Seller Success Guides. Collectively, the terms and conditions set forth in these documents represent the complete agreement between Seller and Mavigadget relating to offer and sale of Seller’s Product(s) through the Network.
• Applicable Laws: means all federal, state and local laws, rules, regulations and order applicable to the Agreement, including, without limitation, (i) all privacy and data security regulations; (ii) the Credit Card Accountability, Responsibility, and Disclosure Act of 2009 and any applicable laws governing the imposition of expiration dates, service charges or dormancy fees, (iii) the Federal Trade Commission’s Mail or Telephone Order Merchandise Rule, (iv) any Applicable Laws that govern the advertising, offer, sale, shipment and/or delivery of goods and/or services, (v) any Applicable Laws that govern false, unfair or deceptive practices, and (vi) any Applicable Laws that govern escheat or abandoned or unclaimed property.
• Network: means, singly or collectively as the context may require, any and all websites, applications, and platforms that are directly owned and operated by Mavigadget, any affiliated publisher websites and sub-domains, and any other affiliated websites as may be designated by Mavigadget.
• Offering(s): means the Product(s) being sold on the Network Product(s): means the Seller’s physical or digital goods that they wish to have Mavigadget offer and sell on the Network.
• Promotional Price: means the price shown on site at the time of sale
• Reserved Quantity: means total number of units of each Product(s) to be made available for sale by Mavigadget on the Network

1. APPOINTMENT OF MAVIGADGET

During the Term (as defined in the Seller Agreement), Seller authorizes Mavigadget to market, offer, sell and distribute the Products, with the specific terms and conditions for each Product as set forth in the Promotional Agreement. Mavigadget agrees to offer, sell and distribute the Products on the Network, subject to the terms and conditions of the Agreement and Promotional Agreement.

2. GENERAL TERMS OF OFFERING

a. Mavigadget is authorized to promote and sell Product(s) on Seller’s behalf subject to the terms of this Agreement. Mavigadget is authorized to promote and sell Product(s) on Seller’s behalf through any platform, including website, applications, and platforms that are directly owned and operated by Mavigadget, any affiliated publisher website and sub-domains, and any other affiliated websites as may be designated by Mavigadget.

b. Mavigadget reserves the right, without notice and in its sole discretion, to determine all promotional details for all Product(s) on the Network. Mavigadget may at any time change or modify any or all Product(s) promotions, including but not limited to, Product(s) details, drawings, specifications and pricing.

c. Mavigadget reserves the continuing right, but shall not be obligated, to reject, revise, or discontinue publishing any Offering, and to require the Seller to edit or modify any Offering for any reason, including, without limitation, to conform such Offering to Mavigadget specifications and/or Applicable Laws.

d. Mavigadget reserves the right, without notice and in its sole discretion, to terminate any publication or promotion of any Offering at any time and for any reason in Mavigadget’s sole discretion, and to terminate any and all Promotions and to remove all references to the Offering(s) from the Network; and redirect or delete any URL used in connection with the Offering(s).

e. Mavigadget is authorized to promote and sell up to the Reserved Quantities in multiple markets and on dates in its discretion.

f. During the time of promotion, Seller shall have readily available for Mavigadget the Reserved Quantities for all Product(s) as set forth in the Promotional Agreement. The Reserved Quantities are to be held exclusively for Mavigadget and are not to be made available for other retailers. The Reserved Quantities set forth in the Promotional Agreement are binding to the Seller, and do not constitute a commitment on the part of Mavigadget to purchase. The Reserved Quantities for any Offering may be increased by mutual agreement between the Parties including via exchange of email or written correspondence. In the event that Reserved Quantities are increased, all other details of the Agreement will remain valid and binding for the duration of the Term, unless otherwise negotiated. Failure to meet orders up to the total Reserved Quantities may result in fees or chargebacks in accordance with the Seller Success Guides.

g. Seller agrees that in providing the Offering(s), Seller will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or inconsistent with the terms stated on the Offering(s). Unless otherwise disclosed, Seller further agrees not to impose different terms or a different cancellation policy than what is stated on the Offering(s).

h. Seller is responsible for all customer service in connection with the Offering and for supplying all goods and services stated in the Offering. Seller is the seller of the Offering and, once Mavigadget distributes the Product(s), Seller shall be solely responsible for all customer service in connection with fulfilling the Offering and/or supplying the Product(s). In performing its customer service duties in connection therewith, Seller shall use its best efforts to timely resolve any reasonable customer complaints in a manner that preserves Mavigadget’s good reputation and best interests. The Seller Success Guide provides additional terms regarding Seller’s customer service responsibilities and shall govern in the event of a conflict with the Promotional Agreement or these Terms.

3. PAYMENT

a. Amounts retained by Mavigadget from the proceeds of the Offering are compensation to Mavigadget for marketing, promoting, and advertising the Offering and distributing the Product(s) on behalf of the Seller. Mavigadget is authorized to review the Seller’s credit history, which may include a soft credit check.

b. A third-party payment processor may be used by Mavigadget to process payments. In some instances, the third party will require additional personally-identifying information to comply with Applicable Laws. Fees for transferring funds may be deducted from payments to the Seller. Fees may vary by payment method and payment amount and may be changed at any time.

c. Seller will not attempt to bill or collect reimbursement from any third-party payor, including but not limited to any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local government program or entity (“Third-Party Payor”), for any of Seller’s services. Seller will accept the amounts received from Mavigadget as payment in full for all services provided by Seller delivered pursuant to the Offering. Seller is solely responsible for complying with any contractual requirements imposed by its contracts with Third-Party Payors, including but not limited to requirements related to offering discounted services.

d. Tax Levy. In the event Mavigadget receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Seller, Mavigadget may, in accordance with applicable law, deduct any such amounts from payments due to the Seller.

e. Taxes Generally. It is Seller’s responsibility to determine what, if any, taxes apply to the payment Seller makes or receives and it is Seller’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. Seller may be asked to provide Mavigadget with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in the Seller’s name for the value of payments made. Notwithstanding anything else in this Agreement, Seller shall be and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Seller is required to be so registered in connection with the Offering and pursuant to the terms and redemption of the Product(s). Seller is responsible for identifying their tax obligation in addition to the calculation, remittance, and reporting of all taxes within their obligation. In some circumstances, Mavigadget may, as is consistent with the applicable law, calculate, collect, and remit applicable national, state, or local sales and use taxes, goods, and services taxes (GST), or value added taxes (VAT) (collectively “Taxes”) on orders destined to specific locations.

f. Notwithstanding anything to the contrary, Mavigadget will have no obligation to advance amounts that have been paid to Mavigadget by a purchaser until Seller has complied with Seller’s obligations under this Agreement. If Mavigadget reasonably believes that Seller has breached any provision of this Agreement, Mavigadget may offset, delay, withhold, or suspend future payments to Seller, in Mavigadget’s sole discretion. In addition, if Seller is unwilling to, or in Mavigadget’s reasonable discretion appears unable to, perform its obligations under this Agreement, Mavigadget is authorized to offset, delay, withhold, or suspend future payments to Seller in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Seller for any refunds and/or other amounts payable by Seller under this Agreement.

g. Mavigadget shall remit payment to the Seller according to the Payment Terms set forth in the Agreement. So long as Seller has fully and properly fulfilled its obligations, Mavigadget shall pay Seller the “Remittance Amount” for each purchased and shipped Product(s) (or delivered redemption code for digital Product(s)) as long as the Purchaser has neither returned the underlying Product(s) to Seller nor received a refund from Mavigadget in connection with the Offering as of the date of payment.

4. CUSTOMER DATA RESTRICTIONS

a. “Customer Data” (hereafter “User Data”) means all identifiable information about purchasers generated or collected by Mavigadget or Seller, including but not limited to, purchaser’s name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.

b. Seller may use, and may authorize its Third Party Seller to use, User Data for the sole purpose of fulfilling its obligations under the Agreement. Seller expressly agrees that any User Data that may be provided hereunder is being provided solely to fulfill its obligations under the Agreement, and may not be used to enhance a file or marketing list owned by Seller, any Third Party Seller or any other third party. Seller represents, warrants and covenants that it will not, nor will it permit any Third Party Seller to, resell, broker or otherwise disclose any User Data to any third party, in whole or in part, for any purpose whatsoever. Seller agrees that it will not copy or otherwise reproduce any User Data other than for the purpose of fulfilling its obligations under the Agreement. If Seller engages any Third Party Seller to facilitate its redemption obligations hereunder, Seller shall ensure that such Third Party Seller implements and complies with reasonable security measures in handling any User Data. If any User Data is collected directly by Seller or a Third Party Seller, Seller shall ensure that it or such Third Party Seller adopts, posts and processes the User Data in conformity with its posted privacy policy.

c. For purposes of the Agreement, the restrictions set forth herein on Seller’s use of User Data do not apply to: (a) data from any customer who is already a customer of Seller prior to the effective date of the Agreement to the extent such data was previously provided to Seller by such customer independent of the Agreement or any transaction hereunder; or (b) data supplied by a customer directly to Seller who becomes a customer of Seller in connection with such customer explicitly opting in to receive communications from Seller for the purposes for which such User Data will be used by Seller; provided that Seller handles and uses such User Data in compliance with Applicable Laws and Seller’s posted privacy policy.

d. Seller shall immediately notify Mavigadget if Seller becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of Mavigadget, and shall cooperate with Mavigadget in the investigation of such breach and the mitigation of such damages. Seller will bear all associated expenses incurred by Mavigadget to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Seller’s reasonable possession or control. Upon termination or expiration of this Agreement, Seller shall, as directed by Mavigadget, destroy or return to Mavigadget all the Customer Data in Seller’s or any agent of Seller’s possession.

5. PROMOTIONAL PROGRAMS

In an effort to incentivize Product sales, Seller authorizes Mavigadget, at any time and in Mavigadget’s sole discretion, to increase or decrease the Promotional Price for the Seller Offering (any such effort, “Promotional Program(s)”). For each product(s) sold as part of a Promotional Program, the Net Remittance Amount may be adjusted in an amount equal to the percentage increase or decrease in the Amount Paid (“Promotional Adjustment”), provided that, any decrease of the Net Remittance Amount will not exceed the maximum Promotional Adjustment specified in the “Payment Terms” section of the Seller Agreement. Promotional Programs include the following:

a. Promotional Codes – A “Promotional Code” is a code that purchasers may use, in Mavigadget’s sole discretion, to receive a discount on the Amount Paid for an Offering.

b. Price Optimization – “Price Optimization” is any change (excluding Promotional Codes) to the Amount Paid for an Offering.

6. FEATURED PROMOTION & OTHER OPTIONAL MARKETING PROGRAMS

Seller may purchase a Featured Promotion from Mavigadget that guarantees certain email, editorial, site, SEO or other placement. Pricing for Featured Promotions will vary based on the type of promotion desired, the amount of estimated impressions, and the time of placement. Seller may also participate in additional optional marketing programs that involve paid to advertise and require the Seller to cover a portion of the paid advertising costs. Mavigadget makes no express or implied guarantees regarding the performance or conversion of Featured Promotions or other optional marketing programs. Featured Promotions and other optional marketing program payments will typically be due in advance of the placement or within 15 days of the advertisement going live. Seller’s failure to remit timely payment may result in the cancellation of the Featured Promotion, at Mavigadget’s sole discretion.

7. TERM & TERMINATION

This Agreement shall become effective as of the execution date of the Seller Agreement and will continue in effect until terminated by either party in accordance with this Section (“Term”). Mavigadget is authorized to terminate this Agreement, at any time for any reason, upon written notice to the Seller. Seller is authorized to terminate this Agreement upon ten (10) business days prior written notice to Mavigadget. The termination or expiration of this Agreement will not in any way affect Seller’s obligation to provide and/or deliver Product(s) or other obligations according to the terms of this Agreement. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.

8. INTELLECTUAL PROPERTY RIGHTS AND LICENSE

a. Seller grants to Mavigadget a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Seller’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Seller (collectively, “Seller IP”); and (b) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Seller (collectively, “Third Party IP”), in each case in connection with the promotion, sale/resale (as may be applicable) or distribution of the Seller Offering in all media or formats now known or hereinafter developed (“License”). Any use of the Seller IP or Third Party IP as contemplated in this Agreement is within Mavigadget’s sole discretion.

b. Seller acknowledges and agrees that, as between the parties, Mavigadget owns all interest in and to the Website, Customer Data, Mavigadget trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by Mavigadget or at Mavigadget’s direction, or assigned to Mavigadget, and any materials, software, technology or tools used or provided by Mavigadget to promote, sell/resell (as may be applicable) or distribute the Seller Offering and conduct its business in connection therewith (collectively “Mavigadget IP”). Seller shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Mavigadget IP or any portion thereof, or use such Mavigadget IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that Mavigadget grants Seller a limited, non-exclusive, revocable, non-transferable, non-sublicensable license during the Term to use one copy of Mavigadget’s mobile Seller software application on a single mobile computer, tablet computer, or other devices, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Seller shall keep the Mavigadget IP confidential, and shall not prepare any derivative work based on the Mavigadget IP or translate, reverse engineer, decompile or disassemble the Mavigadget IP. Seller shall not take any action to challenge or object to the validity of Mavigadget’s rights in the Mavigadget IP or Mavigadget’s ownership or registration thereof. Except as specifically provided in this Agreement, Seller and any third party assisting Seller with its obligations in this Agreement, are not authorized to use Mavigadget IP in any medium without prior written approval from an authorized representative of Mavigadget. Seller shall not include any trade name, trademark, service mark, domain name, social media identifier, of Mavigadget or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Seller shall not use or display any Mavigadget IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Seller or a third party and Mavigadget. All rights to the Mavigadget IP not expressly granted in this Agreement are reserved by Mavigadget.

c. If Seller provides Mavigadget or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Mavigadget product or service or otherwise in connection with this Agreement, any Mavigadget IP, or Seller’s participation in the Seller Offering or Product, (collectively, “Feedback”), Seller irrevocably assigns to Mavigadget all right, title, and interest in and to Feedback. In the event your assignment to Mavigadget is invalid for any reason, you hereby irrevocably grant Mavigadget and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, reformat, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Seller warrants that: (A) Feedback is Seller’s original work, or Seller obtained Feedback in a lawful manner; and (B) Mavigadget and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Seller agrees to provide Mavigadget such assistance as Mavigadget might require to document, perfect, or maintain Mavigadget’s rights in and to Feedback.

9. CONFIDENTIALITY

Seller agrees to keep confidential (a) the terms of the Agreement, (b) any materials, documents or information designated by the Mavigadget as “confidential” or with a similar designation, (c) all Customer Data, and (d) any materials, documents or information that Seller should reasonably expect to be confidential or proprietary under the circumstances and/or given the nature of the materials, documents or information (collectively, “Confidential Information”). Seller shall take reasonable precautions to protect all Confidential Information, and will only disclose Confidential Information to its employees on a need-to-know basis. Seller may disclose Confidential Information to a Third Party Seller (as defined below) if such Third Party Seller has signed a confidentiality agreement that requires it to protect the Confidential Information in at least the same manner specified in the Agreement. If Seller becomes aware of any unauthorized use or disclosure of Confidential Information, Seller shall promptly and fully notify Mavigadget of all facts known to it concerning such unauthorized use or disclosure and shall cooperate with Mavigadget so that Mavigadget may seek a protective order or other appropriate remedy to protect such Confidential Information. Seller will bear all associated expenses incurred by Mavigadget to comply with Applicable Laws including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Confidential Information while the same is in Seller’s or a Third Party Seller’s possession or control. Upon Mavigadget’s written request, Seller shall return to Mavigadget or destroy, at Mavigadget’s option, all Confidential Information in Seller’s or any Third Party Seller’s possession or control. Seller acknowledges and agrees that a breach of its confidentiality obligations under the Agreement will entitle Mavigadget to injunctive relief and a decree for specific performance, and any other relief allowed under Applicable Law. Without limiting the foregoing, Seller agrees that it shall not issue any press release or other public statement relating to its relationship with Mavigadget or the Agreement without the express prior written consent of Mavigadget.

10. REPRESENTATIONS, WARRANTIES, AND COVENANTS

Seller represents and warrants that: (a) Seller has the right, power and authority to enter into this Agreement; (b) Seller, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Seller’s goods and services will be provided; (c) the Product, upon being delivered by Mavigadget, will be available immediately for purchase and/or redemption and Seller will have sufficient goods and/or services available to fulfill its obligations in connection with the applicable Reserved Quantities; (d) the terms and conditions of the Product, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing Products, gift cards, coupons, and gift certificates; (e) The MSRP of the Product is accurate and Seller will keep Mavigadget updated during the duration of the term to any changes in the MSRP; (f) Seller will promptly fulfill its redemption obligations hereunder with respect to purchased Products, including, without limitation, shipping the purchased Products to each Purchaser by the Ship-by Date and will meet its reporting obligations hereunder within the time frames set forth hereunder, and the information contained therein and provided to Mavigadget will be complete and accurate; (g) If Seller is unable to fulfill its obligations under the Agreement or to any User for any reason, it will immediately notify Mavigadget and such User and take prompt action to remediate such failure; (h) Seller will immediately notify Mavigadget if any of Seller’s representations, warranties or covenants contained herein becomes inaccurate or untrue in any material respect during the Term; (i) Seller: (1) has, and shall maintain at Seller’s expense and at all times during the Term, all types of liability insurance policies, with coverage in amounts that are customary for Sellers or service providers in Seller’s trade area, consistent with best industry practices and sufficient to fully comply with Applicable Laws and fulfill Seller’s obligations under the Agreement; and (2) upon Mavigadget’s request, shall provide proof of its maintenance of such policies and provide confirmation that Mavigadget will be a named insured or otherwise covered by such policies in the event of a claim arising under or in relation to the Agreement; (j) the Seller’s redemption of the Product will result in the bona fide provision of goods and/or services by Seller to the purchaser; (k) Seller owns all interest in and to the Seller IP and has licensing rights in (with the right to sublicense to Mavigadget) the Third Party IP, and has the right to grant the License stated in this Agreement; (l) the Seller IP and the Third Party IP, the Seller Offering, Mavigadget’s use and promotion thereof, and the results of such Seller Offerings, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (m) the Seller IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (n) the Products and any advertising or promotion of Seller’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (o) Seller and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Offering to provide the goods or services described in this Agreement; (p) Seller’s business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Seller is the authorized entity to receive the funds forwarded by Mavigadget; (q) Seller is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Seller is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Products in connection with this Agreement; (r) the Seller Offering is: (i) free from defects in workmanship, materials and design, (ii) Sellerable and suitable for the purposes, if any, stated in the Agreement, and (iii) genuine, bona fide products, as described herein and does not violate the rights of any third party.

11. INDEMNIFICATION

Seller agrees to defend, indemnify and hold harmless Mavigadget, its officers, directors, employees, shareholders, affiliates, agents and publishers from and pay the final judgment or settlement and all associated costs (including all court costs and reasonable attorneys’ fees) in connection with (a) Data Processing Agreement; (b) any action, claim or demand arising out of or relating to the Products provided by Seller, including but not limited to, claims for false advertising, intellectual property infringement (including copyright, patent or trademark), product defects, personal injury, death or property damage and (c) any breach by Seller of any representation, warranty, covenant, obligation or other term of this Agreement; provided that Mavigadget (i) promptly gives written notice of the claim to Seller, (ii) allows Seller or Seller’s insurance carrier (as applicable) to select reasonable counsel to defend Mavigadget. (iii) allows Seller to settle such a claim with a third-party claimant (provided that Seller is solely responsible for paying any monetary sums and obtains an unconditional release of Mavigadget in connection therewith), (iii) provides to Seller all reasonably available information and reasonable assistance, and (iv) has not compromised or settled such claim.

12. LIMITATION OF LIABILITY

Except for Sellers breach of the Data Protection Agreement or breach of its confidentiality obligations and its indemnification requirements, neither party shall be liable for any incidental, consequential, exemplary, special or indirect damages (including, but not limited to, loss of profits, revenues, data and/or use), even if advised of the possibility thereof. A party’s total liability under this Agreement shall not exceed the fees paid by Mavigadget to Seller during the six (6) month period prior to any such liability.

13. TERM UPDATES

Mavigadget, subject to the provisions of this paragraph, may amend the Agreement in its sole discretion and at any time. The most recent version of the Terms and Conditions and Seller Success Guides (as may be amended by Mavigadget from time to time) will be available: (i) on the Seller portal, and/or (ii) on this page, and/or (iii) as a part of a Seller Newsletter. Seller agrees that these notifications methods constitute adequate notice to inform Seller of any amendments to the Agreement and Seller further agrees to be bound by any such amendments to the Agreement. Changes will become effective immediately upon being posted on the site. Any sales of Seller Product(s) made after any change becomes effective shall mean that Seller accepts those changes. The seller should visit the site regularly to ensure Seller is familiar and aware of the latest version of the Terms. Notwithstanding the preceding sentences of this section, no revisions to these Terms will apply to any dispute between Seller and Mavigadget that arose prior to the date of such revision.

14. SELLER SUCCESS GUIDE

The seller must comply with Mavigadget Seller Success Guide at all times. The Seller Success Guide is available on the Mavigadget Partner Portal. In the event of any inconsistency or conflict between or among this Agreement and the Seller Success Guide, the terms and conditions of the Seller Success Guide shall govern and control.

15. OTHER

a. Entire Agreement. These Terms, together with the Seller Agreement, Promotional Agreement, and Seller Success Guide, constitute the entire agreement between the Parties relating to the subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may be amended or modified only by mutual written agreement of authorized representatives of the Parties.

b. Notices. Any notice required or permitted hereunder shall be provided in writing, and shall be deemed delivered when: (a) delivered by email to a valid email address of the applicable Party, or (b) actually received or rejected by the designated addressee or, if earlier and regardless of whether or not actually received, when deposited in (i) the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) a regional or national overnight courier service, addressed to the applicable Party at the address set forth in the preamble of the Agreement.

c. No Partnership or Joint Venture. The Parties are independent contractors, and nothing contained herein will be construed to create a partnership or joint venture between Mavigadget and Seller or to make either Mavigadget or Seller an agent of the other party hereto for any purpose. Neither Party has the authority, without the other Party’s prior written approval, to bind or commit the other Party in any way.

d. Force Majeure. Whenever a period of time is herein prescribed for action to be taken by Mavigadget, Mavigadget shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time, any delays due to strikes, riots, acts of God, war, governmental laws, regulations or restrictions or any other causes of any kind whatsoever which are beyond the reasonable control of Mavigadget.

e. Waiver; Severability. Any waiver of a provision of the Agreement must be in writing, expressly identify the provision to be waived and signed by authorized representatives of the Parties. The consent or approval by a Party to or of any act by the other Party requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. A Party’s failure, whether single or repeated, to exercise a right hereunder shall not be deemed to be a waiver of that right and a Party’s delay in exercising a right shall not be deemed a waiver of that or any future right. If any of the provisions of the Agreement are held by a court of competent jurisdiction to be unenforceable or invalid, then such provisions will be ineffective to the extent of the court’s ruling. All remaining portions of the Agreement shall remain in full force and effect.

f. Interpretation. Each Party acknowledges that the Agreement (including the specific terms embodied by the Seller Agreement and Promotional Agreement) is the result of thorough negotiations, multiple drafts and modifications and each Party hereto has consulted with, and been advised by, independent legal counsel in connection with the Agreement. There shall be no presumption of interpretation made against either Party hereto as draftsman of the Agreement. The headings in the Agreement are inserted for convenience of reference only and are not to be considered in the interpretation or construction of the provisions hereof.

g. Multiple Counterparts; Electronic Transmission. The Agreement may be executed in one or more counterparts, each of which may be executed and transmitted by facsimile or other electronic methods, and each of which shall be deemed an original, but both of which shall constitute one and the same instrument.

h. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, MAVIGADGET MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF SELLERABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. MAVIGADGET DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE SHALL BE UNINTERRUPTED OR ERROR-FREE, THAT THE VOUCHERS WILL BE ERROR-FREE, THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS IN THE VOUCHER WILL BE CORRECTED, OR THAT THE PROMOTION OF THE SELLER OFFERING OR THE VOUCHERS WILL RESULT IN ANY REVENUE OR PROFIT FOR SELLER.

i. Choice of Law and Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A. without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply hereto.

j. Dispute Resolution. Any dispute or controversy arising out of, relating to, or concerning any interpretation, construction, performance, or breach of this Agreement, will be settled by arbitration to be held in Los Angeles, California in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in the dispute or controversy. The decision of the arbitrator will be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The prevailing party shall be entitled to recover from the non-prevailing party the prevailing party’s actual attorneys’ fees and costs (including, without limitation, all taxable and non-taxable costs, and all fees and costs to determine the amount of fees and costs to be awarded) incurred in connection with arbitration and enforcement of the judgment. No dispute may be brought by either party eighteen (18) months after the termination or expiration of this Agreement.

k. Waiver or Right to Jury Trial. Each Party acknowledges and, waives its right to a jury trial for all disputes relating to all aspects of the Agreement as set forth above.