Vendor Terms of Service
Effective: June 8, 2023
Welcome to the Procure Impact Marketplace ("PI Marketplace"), which is an online marketplace platform owned and operated by Procure Impact PBC, a Delaware public benefit corporation ("PI"). We are so glad you're here, and honored to work with you to transform lives through the dignity of work. This document and other documents referenced below make up PI's Vendor Terms of Service ("Terms"), which apply to any access or use by or on behalf of you (as a "Vendor") for or with respect to any sale by Vendor of any products listed for sale through the PI Marketplace ("Products"), for or with respect to any services that PI may provide to Vendor in connection with the PI Marketplace ("Services"), and for or with respect to any other access to or use of the PI Marketplace by Vendor. Upon requesting and receiving login access for the PI Marketplace or accessing or using the PI Marketplace or listing, posting or selling any Products on or through the PI Marketplace or receiving any Services from PI, Vendor agrees to all of the Terms, which are a legally binding contract between Vendor and PI.
Products and Services
Through and during Vendor's use of the PI Marketplace, PI will work with Vendor's team to vet, source, and negotiate pricing for high-quality life-changing Products - everything from art and furniture to bath and body products to snacks and consumer packaged goods – as may be manufactured, produced or supplied by Vendor for sale to PI and then resale to customers of PI through the PI Marketplace (each, a "Customer"). Services offered by PI to a Vendor include, but are not limited to, the following in regard to Products listed, posted or sold by Vendor on or through the PI Marketplace:
Quality Control: extensive due diligence on each Vendor to help Vendor understand the quality and reliability expectations of Customers in regard to Vendor's Products, the depth and breadth of the Vendor's and Customer's combined social impact through the PI Marketplace, capabilities of Vendor to handle current and increased Customer purchase orders for Vendor's Products through the PI Marketplace, and ability to grow, scale, and reach more people through the PI Marketplace.
Curation: personalized proposals that outline the best Product fits for Vendor's business based on Vendor's Product type, populations served, community impact, purchase order size capacity, and track record.
Customer Management: management of Customer relationships and support in regard to orders for Vendor's Products and fulfillment through the PI Marketplace to align parties to win-win opportunities that support sustainable growth and increased positive social impact through the PI Marketplace.
Amplification: assistance in earned media, op-eds, video production, and storytelling that elevates Vendor's brand and leadership through the stories of individuals impacted through Customers' purchases of Vendor's Products through the PI Marketplace.
Pricing and Fees
Pricing for available Products is shown to a Customer upon the Customer's login to the PI Marketplace. PI fees are added to and included in the price of each Product listed for sale to Customers on the PI Marketplace, subject to any additional PI fees for Services to Vendor and other services to Customers, and for other items or matters as provided in the Terms or through the PI Marketplace, all of which PI fees are paid to and retained by PI. Every dollar PI earns supports PI's ability to act as a bridge and platform that scales the PI Marketplace to create jobs and opportunities for individuals in underestimated and underserved communities, and covers the cost of vetting, sourcing, and curating the product market fit to integrate social enterprise Vendors into Customers' supply chains.
Payments by PI to Vendor for Vendor's Products ordered by a Customer will be paid by PI to Vendor after the applicable order has been approved and confirmed by PI and the Customer. Payment by Customers for Products ordered by Customers are payable to PI by credit card at the time of checkout by Customer under the online ordering process of the PI Marketplace, or as provided in any invoice issued by PI to Customer with respect to any online or other order of Products or services by a Customer from the PI Marketplace.
All prices, discounts, and promotions listed or posted by Vendor on the PI Marketplace are considered firm and must be honored by Vendor on any orders for Products made while such prices remain listed or posted on the PI Marketplace. The price charged by PI to a Customer for a Product will be the price listed or posted by PI for Customer access on the PI Marketplace at the time the Customer's order is placed. Price increases as listed or posted by Vendor on the PI Marketplace will only apply to orders placed after the time the increase is available for access by Customers through the PI Marketplace. Listed or posted prices do not include applicable sales taxes or charges for shipping and handling, which taxes and charges will be added to Customer's total price, and will be itemized in Customer's shopping cart and/or in Customer's order confirmation email, pursuant to the online ordering process provided to Customers as part of the PI Marketplace. In the event of any typographical or other errors, inaccuracies or omissions by Vendor related to pricing, availability or other order particulars, Vendor must honor the pricing, availability or other order particulars as listed, posted, or otherwise provided by Vendor in connection with the PI Marketplace.
Vendor represents and warrants to PI that (i) the Product information, including pricing and other descriptions and details, that Vendor supplies to PI at any time is true, correct and complete, (ii) Vendor and its representatives listing or posting any Products or related pricing or other information as provided for in the PI Marketplace are duly authorized to make such listings or postings on behalf of Vendor and Vendor will honor, accept and be bound by such listings or postings and Customer orders generated from such listings or postings through the PI Marketplace, and other applicable shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the PI Marketplace at the time of a Customer's order.
Orders and Shipping
Fulfillment by Vendor of Orders for Products must be made pursuant to and in accordance with the ordering process provided for as part of the PI Marketplace. Any delivery dates requested by a Customer in placing an order will become binding on Vendor once such order is approved and confirmed by PI. PI understands that Vendor may in the normal course of business be unable to meet a confirmed delivery date due to circumstances beyond the control of Vendor (such as Force Majeure under Section 9 below), and, if that happens, then Vendor should notify PI's Vendor Support team at support@procureimpact.us as soon as possible so that PI and Vendor can work together to address the situation.
Supply, Possession and Title
Vendor agrees to manufacture, produce and supply at its cost and expense all of Vendor's Products ordered by Customers pursuant to and in accordance with the PI Marketplace.
Possession and title to Products will completely transfer to Customer upon delivery of such Products by Vendor to the applicable carrier for delivery to Customer, at which time Customer assumes all risk of loss and liability associated with delivery, loading and unloading, transportation, handling, storage, ownership and use of such Products.
Vendor agrees to comply with all applicable federal, state, and local laws, ordinances, regulations and rules that apply to Vendor's Products and activities relating directly or indirectly to the PI Marketplace, and agrees not to engage in illegal activity, not to violate the Terms, and not to knowingly provide to PI or the PI Marketplace any materially false, inaccurate or misleading information regarding Vendor's Products, business or its employees or other personnel, contractors, or suppliers, or related affiliates, operations, or resources of Vendor, and Vendor agrees to cooperate with PI in providing any such information to PI promptly upon PI's request. Vendor acknowledges and agrees that PI may report any actual or perceived violations of law to law enforcement or appropriate authorities.
Relationship Between the Parties
PI acts as a supplement to a Vendor's team and streamlines the listing and posting process for Products on the PI Marketplace through PI's deep knowledge and experience evaluating the breadth and depth of social impact and scale potential of social enterprise Vendors. PI will operate as an independent contractor, acquiring Products from Vendors as and when Products are ordered by Customers, and then reselling such Products to Customers, through the PI Marketplace.
PI's goal is to facilitate and scale social impact procurement and transform millions of lives in the process. With a broad and diverse Vendor base, PI acts as a Customer's one-stop-shop for social impact Products across the United States. Working with both social enterprise Vendors and corporate Customers, PI is building the bridge and infrastructure to power a movement that leverages the market to effectively help uplift communities. PI is excited to take this journey with each Vendor and appreciates Vendor's leadership and commitment to scale Vendor's social impact through sales using the PI Marketplace.
PI is not an agent or broker of any Vendor and not an agent or broker of any Customer. Notwithstanding any other language or references used in the Terms or as part of the PI Marketplace, it is expressly agreed that PI, Vendor and Customers are independent contractors and that the relationships between the parties in connection with the PI Marketplace will not constitute a partnership, joint venture, agency, or brokerage, nor establish any fiduciary or franchise relationship. Neither PI nor Vendor will have the authority to make any statements, representations or commitments of any kind, or to take any action, which will be binding on the other party, without the prior written (which may include digital or electronic) agreement, approval or consent of such other party.
Customer Management
If a Customer needs to return or exchange a Vendor's Products, PI will work with such Customer and with such Vendor and such Vendor's team to resolve any quality control or other issues with such Customer's purchased Products in a timely manner by coordinating with Vendor. Vendors ultimately make decisions regarding cancellations, refunds, returns, and exchanges. Customers are advised to submit any such issues to PI by contacting PI's Customer Support team at support@procureimpact.us.
Restrictions
Vendor agrees that it will not (during and for the period commencing on the date that Vendor first obtains access to the PI Marketplace through login and continuing until the first anniversary of the later of (a) such login, or (b) the latest date of Vendor's sale of any Products through the PI Marketplace, such period being referred to herein as the "Restricted Period") directly or indirectly (including by or through any affiliates, agents, distributors or representatives of Vendor and whether through any direct or indirect solicitation or other contact), sell to any Customer any products that are the same or substantially similar to any of the Products listed or posted on the PI Marketplace at any time during the Restricted Period or otherwise circumvent or divert or attempt to circumvent or divert any procurement or purchases by a Customer with respect to any Products supplied by Vendor that are listed or posted on the PI Marketplace at any time during the Restricted Period (whether or not such Products have been purchased by the Customer).
Limitations
PI values each Vendor and, in pursuit of PI's core value of excellence in Customer service while supporting social enterprise Vendors, PI will use its commercially reasonable best efforts as a public benefit corporation to resolve differences and disputes amicably and reasonably; however, in its role as a public benefit corporation supporting social enterprise Vendors, and to further the sustainability and viability of PI and the PI Marketplace in that regard, PI must require certain limitations and restrictions as provided in this Section 8 and other parts of the Terms.
PI does not manufacture, produce or control any of the Products offered on the PI Marketplace. The availability of Products through the PI Marketplace does not indicate an affiliation with or binding endorsement of any Product, Vendor, or other manufacturer or supplier. Accordingly, PI does not provide any warranties with respect to the Products offered on the PI Marketplace; however, the Products offered on the PI Marketplace may be covered by the applicable Vendor's warranty to the extent detailed in the Product's description on the PI Marketplace or otherwise provided by the applicable Vendor with the delivered Product. In any event, and notwithstanding the foregoing or any other provisions of the Terms or any listings or postings by Vendor on the PI Marketplace or otherwise, Vendor represents and warrants to PI that any and all Products sold or supplied by Vendor under or in connection with the PI Marketplace shall be merchantable, in good and saleable condition and of commercially reasonable quality, and free of and from any latent or patent defects in materials, quality or workmanship.
PI WILL NOT BE LIABLE, AND VENDOR WAIVES ALL CLAIMS AGAINST PI, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, OR ANY LOSS OF USE, REVENUE OR PROFIT, WHETHER DUE TO OR ARISING OUT OF FAILURE OF PRODUCTS TO PERFORM, BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, BREACH OF WARRANTY, STRICT LIABILITY, OR ANY OTHER CAUSE, ACTION, OR OMISSION, REGARDLESS OF WHETHER SUCH DAMAGES OR OTHER ITEMS WERE FORESEEABLE AND WHETHER OR NOT VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
AT THE ELECTION OF PI IN ITS DISCRETION, VENDOR WILL SUPPLY AT ITS COST AND EXPENSE REPLACEMENT PRODUCTS, OR REFUND TO PI THE AMOUNT PAID BY PI FOR PRODUCTS, WITH RESPECT TO PRODUCTS GIVING RISE TO A VALID CLAIM BY A CUSTOMER, AS DETERMINED BY PI ON A COMMERCIALLY REASONABLE BASIS.
VENDOR ACKNOWLEGES AND AGREES THAT: VENDOR (AND NOT PI) IS LIABLE AND RESPONSIBLE, IN REGARD TO ALL PRODUCTS SOLD OR SUPPLIED BY VENDOR TO PI AND THEN SOLD OR SUPPLIED BY PI TO CUSTOMERS USING THE PI MARKETPLACE, FOR ANY AND ALL VENDOR WARRANTIES, EITHER EXPRESS OR IMPLIED (WHETHER BY CONTRACT, BY LAW, BY COURSE OF DEALING, BY COURSE OF PERFORMANCE, BY USAGE OF TRADE, OR OTHERWISE), AS TO THE MERCHANTABILITY OR FITNESS OF ANY PRODUCT FOR ANY PARTICULAR PURPOSE, APPLICATION, EXPECTATION OR USE, AS TO TITLE, AS TO ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHTS OF ANY THIRD PARTY, AS TO SECURITY, AS TO ACCURACY OR COMPLETENESS, OR AS TO THE QUALITY OF ANY PRODUCT; AND IT IS VENDOR'S RESPONSIBILITY TO CONDUCT AT ITS COST AND EXPENSE PROPER INSPECTION OR TESTING PRIOR TO VENDOR'S SALE OR SUPPLY OF ANY PARTICULAR PRODUCTS TO REASONABLY ENSURE THAT SUCH PRODUCTS SOLD OR SUPPLIED BY VENDOR IN CONNECTION WITH THE PI MARKETPLACE ARE SUITABLE AND SAFE FOR THE REASONABLY ANTICIPATED OR EXPECTED PURPOSE, APPLICATION OR USE OF SUCH PRODUCTS.
Vendor will use commercially reasonable efforts to display as accurately as possible the colors and images and other descriptions and details of Products listed or posted by Vendor on the PI Marketplace and promptly correct any discrepancies or errors, with Vendor being liable and responsible for any claims or issues by Customers or others arising from any such discrepancies or errors.
Force Majeure
Production and availability of Products can be interrupted due to Vendor outages and shortages, both planned and unplanned, or for many other reasons. In the event that a Vendor or PI is or will be delayed, hindered in, or prevented from the performance of any obligation under the Terms or in connection with the PI Marketplace by reason of Force Majeure, then performance of such obligation (except the obligation to pay money in a timely manner) will be excused for the duration of the Force Majeure. For purposes hereof, "Force Majeure" means and includes natural elements and weather (including, without limitation, cold, cyclones, droughts, earthquakes, eruptions, heat, hurricanes, ice, landslides, lightning, rain, snow, storms, tidal waves, tornados, typhoons, wind, and other climatic and natural conditions and events and any results thereof, including, without limitation, floods and washouts), acts of God, accidents, acts of third parties, blockage, changes in law, civil disturbance, contaminations, defects, derailments, embargo, emergency (whether local or national), emissions and releases, epidemics and pandemics and other effects or results of illness or disease or injuries, equipment or facility breakdowns, explosions, fires, governmental actions and mandates (whether local, state, national, foreign, civil, judicial, military, regulatory, or otherwise, and including, without limitation, condemnations, directives, emergencies, orders, prorations, quotas, requirements or restrictions), insurrections, labor disputes, leakages, lockouts, nuclear events or incidents, quarantines, resource interruptions (including, without limitation, components, feedstocks, fuel, ingredients, inputs, parts, raw and finished or partially finished materials, and utilities), destruction of or damage to right-of-ways (including, without limitation, tracks, bridges, ports, roads and other means of transportation, ingress, or egress), riots, sabotage or terrorism (whether actual or threatened), strikes, transportation and other distribution difficulties and disturbances, wars (whether declared or undeclared), wrecks, and any other conditions, events, matters or occurrences (whether foreseen or unforeseen) to the extent the same are outside the commercially reasonable control of the party claiming Force Majeure and directly or indirectly delays, interferes with or prevents the affected party from performing (in whole or in part) its obligations under the Terms or in connection with the PI Marketplace. Financial distress or limitations of Vendor or its funding sources will not constitute Force Majeure. Vendor will use commercially reasonable efforts at its cost and expense for purposes of addressing any such Force Majeure claimed by Vendor.
Indemnification and Insurance
Vendor agrees to indemnify, defend and hold PI, and PI's affiliates, and their respective officers, directors, managers, employees, agents and representatives, harmless from and against any and all losses, claims, costs, expenses (including, without limitation, reasonable attorneys' fees and expenses), liabilities, demands and causes of action of every kind and character, including but not limited to the amounts of judgments, penalties and interest, relating to or arising from bodily or other injuries to or death of any person, or damage to property (including any contamination of or diminution in value of property), or other damages, arising from or relating to (a) breach by Vendor of any of its obligations under the Terms or in connection with the PI Marketplace; (b) Vendor's (or its direct or indirect supplier's or other third party contractor's) delivery, loading or unloading, transportation, handling, storage, ownership or use of any Products sold or supplied by Vendor through the PI Marketplace; or (c) Vendor's negligence or willful misconduct or violation of law in connection with Vendor's use of the PI Marketplace.
Vendors are responsible for obtaining and maintaining at their cost and expense appropriate insurance coverages and amounts as is standard for their industry, type of Products. and jurisdiction, and will furnish to PI at the commencement of participation in the PI Marketplace and annually thereafter, and upon PI's request, a certificate of insurance for such coverages and amounts in customary form reasonably acceptable to PI and providing for 30 days' prior notice to PI, as certificate holder, of any changes in coverage or amounts.
Confidentiality and Privacy
Each of Vendor and PI agrees to hold in confidence, and not to disclose to third parties or use for any purpose other than performance of its obligations under the Terms or in connection with the PI Marketplace, all or any information (including the pricing and type of Products listed or sold through the PI Marketplace) that is received or ascertained directly or indirectly from the other party or its representatives ("Information"). Each party will ensure that its employees, affiliates, subcontractors and suppliers who may be exposed to Information comply with the confidentiality requirements of the Terms. Nothing herein contained will preclude a party from providing Information to any federal, state or local agency or court to the extent such party is required to do so by applicable laws, rules, codes, regulations or legal process of any federal, state or local agencies, authorities or courts. Neither party will have confidentiality obligations with respect to Information that: is or becomes part of the public domain through no fault of such party or its representatives; is received from a third-party without any obligation of confidentiality; or is in such party's possession prior to such party's receipt of such Information from the other party. Vendor's confidentiality obligations extend to information obtained from password protected portions of the PI Marketplace or which is (i) marked "Confidential," "Restricted,” or other similar marking, (ii) reasonably known by the parties to be considered confidential, or (iii) should be known or understood to be confidential or proprietary by a party exercising reasonable judgment.
PI's Privacy Policy for the PI Marketplace is incorporated into, subject to, and made a part of the Terms.
Intellectual Property Rights
Each of Vendor and PI acknowledges and agrees that (i) any and all of the other party's Intellectual Property Rights are the property of the other party (or subject to the rights of applicable licensors); and (ii) no right or license to either party's Intellectual Property Rights is granted or implied to the other party as a result of the Terms or the PI Marketplace, provided that Vendor grants to PI an irrevocable, royalty-free license to list, post, adapt, modify, use on or in connection with the PI Marketplace any content, images, or other items relating to any Intellectual Property Rights of Vendor in connection with any listing or posting of Products on the PI Marketplace, or other use of the PI Marketplace, by Vendor, PI or any Customer.
Each party will not: (i) register or apply for registrations, anywhere in the world, for the other party's Trademarks or any other Trademark that is similar to the other party's Trademarks or that incorporates the other party's Trademarks in whole or in confusingly similar part; (ii) use any mark, anywhere that is confusingly similar to the other party's Trademarks in whole or in confusingly similar part; (iii) engage in any action that would reasonably be expected to disparage, dilute the value of, or reflect negatively on, any of the other party's Trademarks; (iv) misappropriate any of the other party's Trademarks for use as a domain name without prior written consent from the other party; or (v) alter, obscure, or remove any of the other party's Trademarks, or Trademark or copyright notices or any other proprietary rights notices placed on any Products, marketing materials, or other materials that the other party may provide. Vendor will not engage in any action that would reasonably be expected to disparage, dilute the value of, or reflect negatively on, PI or the PI Marketplace.
For purposes hereof:
"Intellectual Property Rights" means all commercial, industrial and other intellectual property rights comprising or relating to: (i) Patents; (ii) Trademarks; (iii) internet domain names, whether or not Trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (iv) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) Trade Secrets; and (vi) all commercial, industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the laws of any jurisdiction in any part of the world.
"Patents" means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor's certificates, petty patents, and patent utility models).
"Trademarks" means all rights in and to U.S. and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, domain names, and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.
Vendor agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the PI Marketplace or any Intellectual Property Rights of PI relating thereto, access to or sale or supply of Products or Services, or any contact on the PI Marketplace, without express written permission by PI.
Vendor may not without PI's prior written permission use any computer code, data mining software, "robot," "bot," "spider," "scraper" or other automatic device, or program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy any of the PI Marketplace pages, data or content found on or accessed through the PI Marketplace. Vendor may not republish PI Marketplace content or other content from the PI Marketplace on another website or use in-line or other linking to display such content without PI's permission. Vendor may not introduce viruses, spyware, or other malicious code to the PI Marketplace and is responsible for ensuring that the systems Vendor uses to access the PI Marketplace are virus free.
The PI Marketplace may contain hyperlinks to websites operated by parties other than PI or its affiliates. Such hyperlinks are provided for Vendor's reference only. PI does not control such websites and is not responsible for their content or security. If PI posts hyperlinks to other websites, it does not mean that PI endorses the materials or matters on or related to such websites or that PI associates itself with their operators. Vendor's access to and use of such websites, including information, material, products and services on such websites, is solely at Vendor's own risk.
Should Vendor or its representatives respond to or communicate with PI in regard to feedback, forums, questions, comments, suggestions, email discussion lists, surveys or other similar information regarding the content, operation or other aspects of the PI Marketplace, PI will have no obligation of any kind to Vendor with respect to any such information and will be free to reproduce, use, disclose, and distribute the information and related ideas to others without limitation, and PI will be free to use any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever, including but not limited to developing, manufacturing, marketing or selling any products or services incorporating or using such information through the PI Marketplace or otherwise.
Suspension or Termination
While PI hopes to have a long and prosperous relationship with each Vendor in connection with the PI Marketplace, PI understands that as a result of changed circumstances or situations Vendor may need to "pause" its participation in the PI Marketplace on a temporary basis and, if so, Vendor should advise PI by contacting PI's Vendor Support team at support@procureimpact.us. Vendor may also terminate its participation in the PI Marketplace and status as a Vendor with sixty (60) days prior written notice to PI. Whether a pause or termination, Vendor must honor all Customer orders that are confirmed prior to such pause or termination. In the event that Vendor breaches any of the Terms, or for any other reason, PI may in its sole discretion temporarily or permanently revoke, suspend or terminate Vendor's participation in the PI Marketplace and status as a Vendor, and any or all access to or use of the PI Marketplace, without prior notice to Vendor and with Vendor remaining responsible for and liable to PI for fulfillment of all outstanding confirmed orders of Customers for Vendor's Products or Services as a result of Vendor's access to or use of the PI Marketplace.
Waiver of Jury Trials and Binding Arbitration.
VENDOR AGREES TO WAIVE ANY RIGHTS TO LITIGATE CLAIMS RELATING TO THE PI MARKETPLACE IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT VENDOR WOULD HAVE IF VENDOR WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
EXCEPT AS OTHERWISE PROVIDED IN THE TERMS, ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN VENDOR AND PI ARISING FROM OR RELATING IN ANY WAY TO VENDOR'S SALE OF PRODUCTS OR SERVICES THROUGH OR OTHER ACCESS TO OR USE OF THE PI MARKETPLACE WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
Any arbitration pursuant to Section 14(b) will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures ("AAA Rules"), using a single arbitrator and will be in the English language and conducted within the State of Virginia. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Terms are void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity and will be empowered to provide for the payment or sharing of applicable costs, expenses and fees of the arbitrator in accordance with the applicable AAA Rules. Any award of the arbitrator will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. The Terms, and such arbitration, will be governed by and interpreted in accordance with Virginia law, and consistent with the Federal Arbitration Act, 9 U.S.C. §§ 1-16; (3) and applicable statutes of limitations and will honor claims of privilege recognized at law. There will be no authority for any claims to be arbitrated on a class or representative basis and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. The arbitrator will not have the power to award punitive damages against any party.
Scope of PI Marketplace
For purposes of the Terms, "PI Marketplace" is deemed to include, in addition to the Terms, PI's website at www.procureimpact.us, any mobile or other computer or electronic applications made available by or on behalf of PI for purposes of accessing, using, or conducting any transactions with respect to any Products or Services, and including any access emails to Vendor and Vendor's login and account information. Vendor understands and agrees that the PI Marketplace is intended solely for transactions within the U.S. and Vendor represents and warrant to PI that Vendor will only list or post Products manufactured or produced by Vendor in the U.S.
Miscellaneous
Neither PI or Vendor may assign any of its rights or responsibilities under the Terms, in whole or in part, without written consent by the other party, provided that no consent by Vendor will be required for any assignment or delegation by PI to any subsidiary, parent or other affiliate of PI or any successor to PI by merger, conversion, reorganization or sale of assets (whether all, substantially all, or only assets relating to the PI Marketplace). The Terms are for the sole benefit of PI and Vendor and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Terms, except for the benefit of any third parties entitled to indemnification pursuant to any express provision of the Terms.
In the event any legal action is taken by either party against the other party to enforce any of the terms and conditions of the Terms, the parties agree that the unsuccessful party to such action will pay to the prevailing party therein all court costs, reasonable attorneys' fees and expenses incurred by the prevailing party.
All of the Terms and each provision thereof will apply to the fullest extent permitted by applicable law. If any provision of the Terms is declared invalid or unenforceable by a court of competent jurisdiction, then such provision will be severed from and will not affect the remainder of the Terms; however, the parties will in good faith amend and apply the Terms to give effect, to the maximum extent allowed, to the intent and meaning of the severed provision.
The failure of either party at any time to enforce any provision of the Terms, to exercise its rights under any provision hereof, or to require a certain performance of any provision hereof, will in no way be construed as a waiver of such provision, nor in any way affect the validity of the Terms or the right of such party thereafter to enforce each and every provision hereof. No waiver will ever occur unless first reduced to writing and signed by the party to be charged with the waiver. No payment or acceptance of compensation will be deemed a waiver of any right.
Except as otherwise expressly provided for herein, and except for electronic communications as contemplated and provided for in the PI Marketplace or under the Terms, any notice, request, report or other document required under the Terms will be in writing and sent by registered or certified mail, return receipt requested, postage prepaid or by overnight confirmed delivery and addressed to the party to be notified at the address for such party appearing in the PI Marketplace for contact or notice purposes with respect to PI or in Vendor's latest account information with respect to the PI Marketplace (or other address as the receiving party may hereafter designate by written notice to the other party) and will be effective upon receipt.
The Terms and other parts of the PI Marketplace, including any revisions or updates thereto (which may include additional guidelines, policies, or other supplements to the Terms or the PI Marketplace) as may be posted by PI on the PI Marketplace at any time and from time to time, with or without advance notice, constitute the entire agreement and understanding of the parties with respect to the PI Marketplace and access to and use thereof, and supersedes all prior and contemporaneous agreements and understandings, oral or written, relative to the PI Marketplace, and, subject to such revisions and updates, no course of performance, invoices by Vendor, or other agreements, communications, or instruments purporting to amend, supplement or explain the Terms or the PI Marketplace will be effective unless in writing and signed by authorized representatives of both parties. Vendor's use of the PI Marketplace after any revision or update will constitute Vendor's acceptance of and agreement to such revision or update. The Terms as then in effect will govern Vendor's then current visit to and use of the PI Marketplace. Any existing confidentiality or non-disclosure agreement between the parties will continue in full force and effect in accordance with the provisions thereof, except that the provisions of the Terms will control and prevail (with respect to matters relating to the Terms and the subject matter hereof) in the event of any conflict or inconsistency between the Terms and any such existing confidentiality or non-disclosure agreement.
Subject to and except for any express limitations or requirements in the Terms, the rights and remedies provided in the Terms will not be exclusive, but will be cumulative and in addition to all other rights and remedies available under law or equity. PI will have the right, in addition to its other rights and remedies available at law or in equity, and notwithstanding the provisions of Section 14, to seek and obtain equitable relief in any court, including injunctions and specific performance, for any violation or threatened violation of the Terms, without posting a bond or other security or proving actual damages.
Any reference in the Terms or the PI Marketplace to "U.S." will mean the United States of America and any reference in the Terms or the PI Marketplace to "$" will mean United States Dollars.
The obligations of the parties under Sections 10 (Indemnification and Insurance), 11 (Confidentiality and Privacy), 12 (Intellectual Property Rights), 14 (Waiver of Jury Trials and Binding Arbitration) and this Section 16 (Miscellaneous), and any outstanding payment or other obligations of Vendor to PI, will survive the conclusion of any access to or use of the PI Marketplace by Vendor and the conclusion of any transactions conducted by Vendor under or pursuant to the PI Marketplace.
