Template Marketplace Supplement to 17hats Terms of Service
This Template Marketplace Supplement (the “Supplement”) is incorporated into and forms a part of the 17hats Terms of Service (“Terms of Service”) and: (a) governs Sellers’ use of the 17hats Solution to create templates, documents, forms, workflows and routines; and (b) sets forth the terms and conditions under which 17hats may sell Templates to End Users in the Territory via the Template Marketplace (as such capitalized terms are defined below):
1. DefinitionsTerms used but not defined in this Supplement shall have the meanings given in the Terms of Service.
- “17hats Data” means all data and information, including any and all personal data (such as name, address, mobile phone number and email) of 17hats and/or its End Users, customers, suppliers, employees, contractors and other third parties that may be provided to Seller or that Seller may access or receive in connection with this Supplement. To the extent there is any overlap between 17hats Data and Seller Data, such data shall be deemed 17hats Data for purposes of this Supplement and 17hats’ ownership thereof.
- “17hats Solution” means 17hats’ small business management products, services, software, templates, tools and platform.
- “Confidential Information” means any and all information disclosed by 17hats to Seller pursuant to this Supplement which: (a) is in written, graphic, machine readable or other tangible form and is marked “Confidential” or “Proprietary”; (b) if disclosed orally or visually, is designated as confidential at the time of disclosure or is reduced to writing by 17hats within a reasonable time after its disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to Seller; or (c) would be considered to be confidential by a reasonable person given the nature of the information or the circumstances of its disclosure, including, without limitation, all 17hats Data.
- “End User” means any third party that obtains a Template via the Template Marketplace.
- “Losses” means all liabilities, losses, damages, harms, settlements, costs and expenses (including legal fees).
- “Net Revenue” means gross revenue received by 17hats for Seller’s Templates sold in the Template Marketplace, less refunds and chargebacks.
- “Template” means those Seller templates, documents, forms, workflows and routines and associated content created using or for use with the 17hats Solution, including any and all associated documentation created by Seller to facilitate use of such templates and all corrections to or corrected versions of such Templates. The parties may from time to time agree in writing (which may be by email) to add specific items to this definition.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, throughout the world.
- “Proprietary Rights” means all Intellectual Property Rights or other proprietary rights relating to the 17hats Solution and associated documentation and all Confidential Information (including, without limitation, all 17hats Data) and any and all improvements, developments, modifications and derivative works thereof and any and all embodiments of those rights.
- “Seller,” “You” or their derivatives means any person or entity who accesses or uses the 17hats Solution pursuant to this Supplement.
- “Seller Data” means 17hats’ online template marketplace currently available within the application.
- “Template Marketplace” means 17hats’ online template marketplace currently available within the application.
- “Use” means to publish, copy, reproduce, distribute, display, publicly perform, exhibit, transmit, broadcast, digitize, create derivative works of and otherwise alter, modify, edit, adapt, make, have made, market, advertise, rent, sell, offer to sell, import, practice methods, processes and procedures and otherwise use, exploit and disclose to third parties, for any and all purposes, including, without limitation, for marketing, advertising and promotional purposes, in any and all media or marketing platforms, now known or hereafter known.
- “Territory” means worldwide.
2. Intellectual Property
- Acknowledgment. 17hats is and will remain the sole and exclusive owner of all right, title and interest in and to the 17hats Solution and associated documentation, Confidential Information (including, without limitation, 17hats Data) and all Proprietary Rights, subject only to the limited license granted to Seller under this Supplement in Section 2.2. Upon termination of this Supplement for any reason, such license will immediately terminate. 17hats also shall have the right to suspend or terminate such license and/or Seller’s access to the Service and/or the Seller Marketplace at any time, for any or no reason, in 17hats’ sole discretion.
- License to Create Templates. Subject to the terms, conditions and restrictions of this Supplement, 17hats hereby grants Seller the limited, revocable, non-transferable, non-sublicenseable right to use the 17hats Solution to create, display, modify, and prepare derivative works of Templates for Seller’s internal business use only.
- Seller Assignment of Rights. Seller hereby assigns, transfers and conveys to 17hats and its successors and assigns, in perpetuity, all of Seller’s right, title and interest throughout the world in and to any and all Templates, 17hats Data (to the extent it obtains any rights to such data), and all Intellectual Property Rights and other proprietary rights relating thereto and any and all improvements, developments, modifications and derivative works thereof (the “Assigned Rights”). Seller hereby waives and irrevocably quitclaims to 17hats any and all claims, of any nature whatsoever, that Seller now has or may hereafter have for infringement, misappropriation or other violation of any Assigned Rights. All right, title and interest, including all Assigned Rights, shall not be waived if not exercised by 17hats within one (1) year of such assignment. If any of the Assigned Rights cannot be assigned to 17hats, Seller hereby unconditionally and irrevocably grants to 17hats during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free, transferable license, with rights to sublicense through multiple levels of sublicensees, to Use such Assigned Rights.
- Content. 17hats may provide interactive features on or through our Service or the Template Marketplace including, without limitation, message boards, messaging/chat features, information sharing features (including the ability to email information directly to other Sellers or End Users), content sharing features, Seller profiles and forums (collectively, “Interactive Features”) that allow Sellers to post, submit, publish, display or transmit to other Sellers or End Users, 17hats, or other persons (“post”) information, data, content or materials, including, without limitation, any and all image(s), text, photograph(s), video(s), and sound recordings (“Content”). By posting Content, you hereby grant the 17hats and its successors and assigns a non-exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free, transferable license, right and permission, with rights to sublicense through multiple levels of sublicensees, to Use:
• such Content;
• your name and/or handle, image, likeness, voice, appearance and biographical information;
• all Intellectual Property Rights and other proprietary rights relating to such Content; and
• all improvements, developments, modifications and derivative works of such Content.
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL LEGAL AND EQUITABLE RIGHTS RELATING TO ANY AND ALL LOSSES INCURRED IN CONNECTION WITH ANY CLAIMS, ACTIONS OR PROCEEDINGS, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT, INFRINGEMENT OF MORAL RIGHTS, DEFAMATION, INVASION OF RIGHTS OF PRIVACY, RIGHTS OF PUBLICITY, INTRUSION, FALSE LIGHT, PUBLIC DISCLOSURE OF PRIVATE FACTS, PHYSICAL OR EMOTIONAL INJURY OR DISTRESS, LOSS OR CORRUPTION OF DATA, OR ANY SIMILAR CLAIM OR CAUSE OF ACTION IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, NOW KNOWN OR HEREAFTER KNOWN, IN ANY JURISDICTION THROUGHOUT THE WORLD (“CONTENT CLAIMS”) ARISING FROM 17HATS’ OR ITS SUCCESSORS OR ASSIGNS’ EXERCISE OF THE RIGHTS GRANTED HEREIN OR USE OR EXPLOITATION OF THE CONTENT OR SELLER DATA, AND AGREE NOT TO MAKE OR BRING ANY CONTENT CLAIM AGAINST 17HATS OR ITS SUCCESSORS OR ASSIGNS, AND FOREVER RELEASE AND DISCHARGE 17HATS AND ITS SUCCESSORS OR ASSIGNS FROM LIABILITY UNDER SUCH CONTENT CLAIMS.
- Use of Seller Trademarks. During the Term of this Supplement, 17hats may advertise the Templates under the trademarks, marks, and trade names that Seller may adopt from time to time (the “Seller Trademarks”). 17hats may use the Seller Trademarks for one (1) year after the termination of this Supplement for the sole purpose of servicing Templates. Nothing herein will grant to 17hats any right, title or interest in the Seller Trademarks. 17hats shall follow reasonable trademark usage guidelines communicated by Seller. Upon the date one (1) year after termination of this Supplement for any reason, 17hats will promptly cease all use of Seller Trademarks.
- Use of 17hats Trademarks. During the Term of this Supplement, Seller may use the trademarks, marks, and trade names that 17hats may adopt from time to time (the “17hats Trademarks”) in connection with its performance of its obligations under this Supplement, with 17hats’ express written consent. Nothing herein will grant to Seller any right, title or interest in the 17hats Trademarks. Seller shall follow reasonable trademark usage guidelines communicated by 17hats and shall not combine the 17hats Trademarks with the Seller Trademarks. Upon termination of this Supplement for any reason, Seller will immediately cease all use of Seller Trademarks.
- Feedback. You may choose to, or we may invite you to submit comments, suggestions, or ideas about the 17hats Solution, Template Marketplace, or other 17hats products or services, including how to improve them (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction, and will not place 17hats under any fiduciary or other obligation. 17hats may use, exploit, copy, modify, publish, or redistribute the Ideas for any purpose and in any way without any compensation to you. You also agree that 17hats may have similar ideas under development to your Ideas or any Templates you submit to us for review, and 17hats does not waive any rights to use similar or related ideas previously known to 17hats, developed by its employees or contractors, or obtained from other sources.
- No Other Rights. Seller may not, directly or through any person or entity, in any form or manner, copy, distribute, reproduce, incorporate, use or allow access to the 17hats Solution or any Proprietary Rights or Confidential Information; or modify, prepare derivative works of, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or object code from the 17hats Solution, except as explicitly permitted under this Supplement or otherwise agreed in writing. Notwithstanding anything to the contrary, Seller has no rights (nor does Seller acquire any such rights under this Supplement) in any of the Proprietary Rights or Confidential Information. For the sake of clarity, nothing in this Supplement shall prevent 17hats from developing, promoting or offering for sale any of its own products, or those of third parties, via the Template Marketplace that compete with or are substantially similar to Seller’s Templates.
- Exclusivity. Seller agrees during the term of this Supplement to refrain from promoting any third-party small business management solutions or suites of templates and other products. However, this Supplement shall not restrict Seller from promoting its own products in conjunction with any third party.
4. Prices and Payment
- Fees. 17hats shall have the right to set and change the price of the Templates, offer pricing promotions, or to offer multiple Templates together in a bundle or other deal, in its sole discretion. As such, the fee you receive for your Template may vary depending on whether a Template is sold for the list price or under a pricing promotion or other deal. During the term of this Supplement, 17hats shall pay Seller 50 percent (50%) of Net Revenue. From time to time, the parties may mutually agree in writing (which may be by email) to change the revenue share. Payments due under this Supplement will be issued by 17hats to Seller within thirty (30) days of the end of each fiscal quarter. Payments will be made in US Dollars. Seller will provide 17hats with completed tax documents as required by law to facilitate payment.
- Payment Method. 17hats may make payment for an order by credit card, wire transfer, or other method.
- Taxes. All fees are exclusive of any export, withholding, federal, state and local taxes, duties or excises. If Seller pays any taxes, duties or excises (other than taxes based on Seller’s net income) which are not included in the fees charged for the Template, Seller shall itemize such taxes, duties or excises as a separate item on its invoices to 17hats and 17hats shall reimburse Seller for such taxes, duties or excises; provided that 17hats shall not be required to make any such reimbursement if it provides a timely, valid tax exemption certificate to Seller.
5. Warranties; Disclaimer
- Warranties Each party represents and warrants to the other that: (a) it has the power and authority to enter into and perform its obligations under this Supplement; (b) to the best of its knowledge, it currently has no restrictions that would impair its ability to perform its obligations under this Supplement; (c) as to Seller, it has all rights necessary to provide the Templates as contemplated under this Supplement; (iv) as to Seller, the Templates (including, without limitation, all content) will not infringe, misappropriate or otherwise violate any common law or statutory right of any person or other entity including, without limitation, any contractual rights, Intellectual Property Rights, proprietary rights, or any rights of privacy or publicity, nor will they violate any law, regulation or court order, nor will they contain any content or instructions that are inaccurate or misleading, factually or legally incorrect, or, if implemented, would result in injury; (v) as to Seller, no Templates will contain any viruses, malware, disabling code or other harmful code or elements; and (vi) it will comply with all federal, state and local laws, regulations and court orders applicable to the performance of its obligations hereunder and will obtain all applicable permits, permissions, and licenses required of it in connection with its obligations.
- Disclaimer. Except for the foregoing, neither party provides any warranty, express, implied, statutory, or otherwise, and each party specifically disclaims any warranty of merchantability or fitness for a particular purpose.
- Obligations of the Parties.
(a)Cooperation. Each party shall provide reasonable cooperation and assistance to the other party in connection with this Supplement. Such cooperation and assistance shall include but not be limited to: (i) a reasonable level of responsiveness to the other party's communications; and (ii) the timely transmittal and release to the other party of appropriate and accurate documentation and information.
- Template Review; No Obligation. Once you have created a Product you think is suitable for the 17hats online template marketplace, you may submit the Product to us for our review in accordance with any editorial review/submission guidelines we provide or make available to you, at firstname.lastname@example.org. 17hats shall have the sole right to determine whether to include any Products in its Template Marketplace and how to offer and promote such Templates. 17hats shall have the right to remove any Templates from the marketplace or terminate or suspend Seller’s inclusion in the Template Marketplace at any time, for any or no reason, in its sole discretion. Nothing in this Agreement shall obligate 17hats to promote or sell any Templates provided hereunder in the Template Marketplace or to offer the Template Marketplace at all.
- Seller Support and Training to 17hats and End Users. During the Term and for one year thereafter, Seller will provide 17hats and End Users with reasonable support, correction of typos and errors, and training in relation to the Templates upon 17hats’ request, in response to End User questions or otherwise. Specifically, 17hats may request that Seller respond to End User questions on how to use the Template or its content. Seller will not be required to (and is not authorized to) answer questions regarding the 17hats Solution or installation of the Templates, which communications will be handled solely by 17hats. In engaging with End Users or otherwise in connection with this Supplement, Seller shall not purport to make any communications or representations or warranties on 17hats’ behalf or hold itself out as a representative, agent, employee or contractor of 17hats. Seller shall ensure that it keeps its contact information up to date and accurate at all times in its account for purposes of this support. If 17hats requests that Seller fix typos or errors in a Template and Seller is unable to fix such typos or errors to 17hats’ reasonable satisfaction, 17hats shall have the right to a refund of fees paid or deduct the fees paid for such Templates from the amounts owed to Seller.
- Documentation. Seller will furnish 17hats, without charge, copies of any documentation (such as technical documentation and user guides) Seller may prepare for the Templates in a mutually agreed format.
- Nondisclosure. Seller shall treat as confidential all Confidential Information of 17hats, shall not use such Confidential Information except as set forth herein, and shall not disclose such Confidential Information to any third party except as required by law, regulation or court order (provided that Seller gives 17hats notice and an opportunity to seek a protective order). Without limiting the foregoing, Seller shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed under this Supplement, and under no circumstances less than a reasonable degree of care. Seller shall promptly notify 17hats of any actual or suspected misuse or unauthorized disclosure of 17hats’ Confidential Information.
- Return of Confidential Information. Seller shall not store or retain any Confidential Information except as necessary to fulfill its obligations under the Agreement. Upon expiration or termination of this Supplement or at any time during the Term upon 17hats’ request, Seller shall promptly return to 17hats all 17hats Confidential Information (and any and all copies thereof), whether in written, electronic, or other forms or media, in Seller’s possession or control or, at 17hats’ written request, destroy or permanently delete such Confidential Information in accordance with applicable law, and certify in writing to 17hats that such Confidential Information has been returned to Client or disposed of securely.
- Remedies. Any breach of the restrictions contained in this Section 6 is a breach of this Supplement which may cause irreparable harm to 17hats. Accordingly, any such breach shall entitle 17hats to injunctive relief in addition to all legal remedies.
- Indemnification. Seller agrees, at its own expense, to indemnify, defend (or at its option to settle) and hold harmless 17hats against any and all Losses incurred in connection with claims, actions or proceedings brought against 17hats by any third party, arising from the use of or reliance on the Templates (including, without limitation, all associated content) delivered by Seller to 17hats, Seller’s use of the 17hats Solution or Template Marketplace in violation of the Terms of Service or terms of this Supplement, or Seller’s breach or alleged breach of the Terms of Service or this Supplement or acts or omissions under this Supplement.
- Injunctions. In the event that any Template is, or in Seller’s sole opinion is likely to be, enjoined due to the type of infringement described in Section 5.1, Seller, at its option and expense, may either (a) modify the Templates so that they become non-infringing, (b) replace the Templates with functionally equivalent non-infringing Templates or, if the foregoing alternatives are not reasonably available to Seller, (c) terminate this Supplement and refund to 17hats any and all fees paid for such Templates.
8. Term and Termination
- Term. This Supplement shall be effective for a term of one (1) year from the date on which Seller enters into the Terms of Service and this Supplement, unless terminated earlier pursuant to the provisions of this Section 8 (the “Initial Term”). At the end of the Initial Term, this Supplement shall automatically renew for additional one (1) year terms (each, a “Renewal Term”) unless a party provides the other written notice of its intention not to renew the Supplement at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, or the Supplement is otherwise terminated earlier pursuant to the provisions of this Section 8.
- Termination for Convenience. This Supplement may be terminated by 17hats for any reason or no reason, whether or not extended beyond the initial term, by giving Seller written notice at least fifteen (15) days in advance.
- Termination for Cause. Except as set forth in the last sentence of this Section, if either party defaults in the performance of any material provision of this Supplement, then the non-defaulting party may give written notice to the defaulting party that if the default is not cured within fifteen (15) days the Supplement will be terminated. If the non-defaulting party gives such notice and the default is not cured during the fifteen (15) day period, then the Supplement shall automatically terminate at the end of that period.
- Termination for Insolvency and Related Events. This Supplement shall terminate, without notice, (a) upon the institution by or against either party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such party’s debts, (b) upon either party’s making an assignment for the benefit of creditors, or (c) upon either party’s dissolution or ceasing to do business.
- Effect of Termination. If this Supplement is terminated, then all of Seller’s rights and licenses set forth in this Supplement shall terminate. All copies of Templates in Seller’s possession at the time of termination or expiration of this Supplement shall be promptly destroyed or returned to 17hats (at 17hats’ option) except that Seller may retain copies for its own internal business use. In the event of termination by either party in accordance with any of the provisions of this Supplement, neither party shall be liable to the other, because of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of either party. Termination shall not, however, relieve either party of any obligations incurred prior to the termination date, including, without limitation, the obligation of 17hats to pay Seller for Templates purchased prior to such termination.
- Survival of Certain Terms. The provisions of Sections 1, 2, 3, 5.1, 5.2, 5.5, 6, 6, 7, 8, 9, 10, and 11 of this Supplement, and all payment obligations incurred during the term of this Supplement, shall survive the expiration or termination of this Supplement for any reason. All other rights and obligations of the parties shall cease upon termination of this Supplement.
9. Limitation of Liability. In no event shall 17hats’ liability arising out of this Supplement exceed the amount received by Seller from 17hats hereunder in the six months prior to the date on which the first cause of action arose. Except with respect to 17hats’ gross negligence or willful misconduct, in no event shall 17hats be liable for costs of procurement of substitute products or services, loss or corruption of data, lost profits or any consequential, special, incidental, or indirect damages, however caused and on any theory of liability (including negligence or strict liability), arising out of this Supplement. these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
- Amendments and Waivers. Any term of this Supplement may be amended or waived only with the written consent of the parties or their respective permitted successors and assigns.
- Successors and Assigns. Seller shall not assign any of its rights, obligations or privileges (by operation of law or otherwise) hereunder without the prior written consent of 17hats. 17hats shall have the right to assign its rights, obligations and privileges hereunder to any assignee that agrees in writing to be bound by the terms and conditions of this Supplement.
- Governing Law. This Supplement shall be governed, construed and interpreted in accordance with the laws of the State of Delaware including its provisions of the Uniform Commercial Code, without giving effect to principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods (1980) shall not apply to this Supplement.
- Dispute Resolution
(a) Good-Faith Negotiation Followed by Mediation. The parties will attempt to resolve any dispute relating to this Supplement by good faith negotiation between business principals for thirty (30) days. Thereafter, they will submit their dispute to mediation before a mutually agreed mediator from Judicial Arbitration and Mediation Services (“JAMS”) or its successor, to be scheduled within thirty (30) business days. The parties will conduct all mediations at a JAMS facility in California to whose jurisdiction the parties consent. The parties will bear their own costs.
(b) Equitable Relief. Either party may seek equitable relief from any court of competent jurisdiction at any time. Except for an action to obtain equitable relief, neither Party may commence a civil action with respect to the matters submitted to mediation until after completing mediation.
(c) Enforcement and Attorneys’ Fees. The provisions of this Section 10.4 may be enforced by any court of competent jurisdiction, and the party seeking enforcement will be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered.
- Notices. Any notice required or permitted by this Supplement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or facsimile number as set forth below, or as subsequently modified by written notice.
- Severability. If one or more provisions of this Supplement are held to be unenforceable under applicable law, then (a) such provision shall be excluded from this Supplement, (b) the balance of the Supplement shall be interpreted as if such provision were so excluded and (c) the balance of the Supplement shall be enforceable by its terms.
- Independent Contractor. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Force Majeure. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Supplement (other than a payment obligation) due to any cause beyond the reasonable control of the Party invoking this section, and if such party shall have used its best efforts to mitigate its effects, such Party shall give prompt written notice to the other party, its performance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. Notwithstanding the foregoing, if such Party is not able to perform within sixty (60) days after the event giving rise to the excuse of force majeure, the other party may terminate this Supplement.
- No Variation. Seller shall not be permitted to vary these terms (or our Terms of Service), or to offer Template on different terms or with additional terms (for example, with terms embedded in the Templates or in the Seller or Template descriptions). Any such different or additional terms shall be null and void.
- Cumulative Remedies. All rights and remedies under this Supplement shall be cumulative and not alternative, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
- Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Supplement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Supplement. This Supplement shall not be construed against any party by reason of the drafting or preparation thereof.
- Entire Supplement. This Supplement (as amended pursuant to Section 10.1), including the online documents referenced herein, constitutes the entire agreement of the parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.
Monday, April 5, 2021