THE SATURDAY MARKET PROJECT GENERAL TERMS AND CONDITIONS
These THE SATURDAY MARKET PROJECT GENERAL TERMS AND CONDITIONS (the "General Terms") are incorporated into each The Saturday Market Project Designer Agreement and The Saturday Market Project Marketplace Seller Agreement (each such agreement, an "Agreement"). With respect to each Agreement, each Party agrees as follows:
1.1. "Affiliate" means any Designer or Marketplace Seller.
1.2. "Agreement" has the meaning attributed to it in the first unnumbered paragraph of the General Terms.
1.3. "Business Day" means any weekday on which Company's office in Virginia, U.S.A. is open in the normal course of business.
1.4. "Buyer" means any person who buys a Product.
1.5. "Company" means The Saturday Market Project, LLC.
1.6. "Confidential Information" has the meaning attributed to it in Section 3.1 of the General Terms.
1.7. "Disclosing Party" has the meaning attributed to it in Section 3.1 of the General Terms.
1.8. "General Terms" means these The Saturday Market Project General Terms and Conditions.
1.9. "Intellectual Property Right" means any intellectual property right including, without limitation, any right, title, or interest in any patent, trademark, service, mark, trade dress, copyright, or trade secret, together with any and all goodwill relating thereto.
1.10. "Notice" has the meaning attributed to it in Section 6 of the General Terms.
1.11. "Party" means Company or any Affiliate.
1.12. "Reasonable Efforts" means, with respect to a given obligation, the efforts that a reasonable person in the promisor's position would use so as to perform that obligation as promptly as possible, except:
(a) taking any action that would, individually or in the aggregate, cause the promisor to incur costs, or suffer any other detriment, out of reasonable proportion to the benefits to the promisor under this Agreement;
(b) changing its business strategy;
(c) taking any action which would violate any applicable law, regulation, or order; or
(d) taking any action that would imperil the promisor's existence or solvency.
1.13. "Receiving Party" has the meaning attributed to it in Section 3.1 of the General Terms.
1.14. "Website" means the Company website located at https://saturdaymarketproject.com/.
2. Ownership of Intellectual Property. Except expressly set forth in any Agreement, each Party retains all right, title, and interest in technology and all Intellectual Property Rights which each owned as of the Effective Date and all proprietary rights inherent therein and appurtenant thereto.
3.1. All information disclosed by, or on behalf of, one Party (the "Disclosing Party") to another Party (the "Receiving Party") and designated by the Disclosing Party as "confidential," in writing, is deemed to be confidential, restricted, and proprietary to the Disclosing Party (such information, "Confidential Information").
3.2. Notwithstanding any other provision of this Agreement, Confidential Information does not include information that:
(a) is published or otherwise in the public domain through no fault of the Receiving Party at the time such information was received by the Receiving Party;
(b) prior to disclosure to the Receiving Party, is properly within the legitimate possession of the Receiving Party;
(c) subsequent to disclosure to the Receiving Party, is lawfully received from a third party having rights in the information without restriction as to the third party's right to disseminate the information and without notice of any restriction against its further disclosure;
(d) is independently developed by the Receiving Party without the use of Confidential Information, by itself or through parties who have not had, either directly or indirectly, access to or knowledge of Confidential Information;
(e) is transmitted to the Receiving Party after the Disclosing Party has received written notice from the Receiving Party that it does not desire to receive further Confidential Information; or
(f) is obligated to be produced under order of a court of competent jurisdiction or other similar requirement of a governmental or regulatory authority, provided that the Receiving Party required to disclose the information provides the Disclosing Party with prior written notice of such order or requirement.
(a) use such Confidential Information only for the purpose of performing under this Agreement;
(b) not disclose any Confidential Information to any third-party except as necessary or appropriate to accomplish the intent of, and in accordance with the terms of this Agreement;
(c) not disclose any Confidential Information to any third-party unless that third party has expressly and in writing agreed to protect such Confidential Information with the same or greater responsibilities and duty of care as a Receiving Party would have under this Agreement;
(d) not reproduce any such Confidential Information in any form except as necessary or appropriate to accomplish the intent of, and in accordance with the terms of this Agreement;
(e) use at least Reasonable Efforts to avoid disclosure or unauthorized use of such Confidential Information and, in any event, exercise at least the same care to avoid disclosure or unauthorized use of such Confidential Information as it exercises to protect its own similar confidential or proprietary information; and
(f) retain all such Confidential Information in a secure place with access limited to only such of the Receiving Party's employees or agents who need to know such information to accomplish the intent of this Agreement.
3.4. No other rights or licenses to trademarks, inventions, copyrights, patents, or any other intellectual property rights are implied or granted under this Agreement or by the conveying of Confidential Information between the parties.
3.5. All Confidential Information (including all copies of such information) unless otherwise specified in writing, remains the property of the Disclosing Party, shall be used by the Receiving Party only for the purpose for which it was intended, and shall be returned to the Disclosing Party or destroyed after the Receiving Party's need for it has expired or upon written request of the Disclosing Party, and, in any event, upon expiration or termination of this Agreement. At the written request of the Disclosing Party, the Receiving Party shall furnish a certificate of an officer of the Receiving Party certifying that Confidential Information not returned to the Disclosing Party has been destroyed
4. Limitation of Liability. COMPANY WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, REMOTE, SPECULATIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING FROM ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT.
5. Status of Affiliate. Affiliate is not an agent or employee of Company. Nothing contained in the Agreement and these General Terms should be construed as creating a partnership, joint venture, or agency or employment relationship between Company and Affiliate.
6. Notices. Each notice, demand, request, consent, approval, disapproval, designation, or other communication to any Party (each of the foregoing, a "Notice") must in writing and delivered as follows: (a) if to Affiliate, to the address Affiliate has provided to Company, in writing; and (b) if to Company, to the address Company has provided to Affiliate, in writing.
7. Representations. Each Party acknowledges and represents that the Agreement and the General Terms are executed without reliance upon any agreement, promise, statement or representation by or on behalf of any Party, except as set forth in this Agreement and the General Terms, and each Party acknowledges that no other Party nor any agent or attorney of such Party has made any promises, representations or warranties whatsoever, whether expressed or implied, which are not contained in the Agreement or the General Terms, concerning the matters set forth in the Agreement. Each Party represents that the execution and delivery of the Agreement and the General Terms constitutes a legal, valid and binding obligation of such Party.
8. Entire Agreement. This Agreement and the General Terms contain the entire understanding and agreement between the parties and shall not be modified, amended, or assigned except upon express written consent of both Parties. Any attempted modification, amendment, or assignment in violation of this Section 8 is void.
9. Time is of the Essence. Time is of the essence in each Party's performance of all obligations under the Agreement and the General Terms.
10. Governing Law. The Agreement and the General Terms are governed and must be construed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws provisions.
11. Choice of Forum. Any Party commencing against the other Party any legal proceeding (including, without limitation, any tort claim) arising out of, relating to, or concerning the Agreement or the General Terms shall bring that proceeding in the state courts sitting in Fairfax, Virginia or the United States District Court for the Eastern District of Virginia in Alexandria, Virginia. Each Party hereby submits to the exclusive jurisdiction of those courts for the purposes of any such proceeding and waives any claim that any legal proceeding (including, without limitation, any tort claim) brought in accordance with this Section 11 has been brought in an inconvenient forum or that the venue of that proceeding is improper.
12. Jury Waiver. The Parties hereby acknowledge that any controversy which may arise under the Agreement or the General Terms would involve complicated and difficult factual and legal issues, accordingly the Parties intentionally waive any right to request a jury trial in any action arising out of, relating to, or concerning this Agreement.
13. Attorney's Fees and Costs. Should any Party breach the Agreement or the General Terms or any warranty contained therein, the non-breaching Party shall be entitled to an award of its costs and reasonable attorneys' fees expended in any action to seek injunctive or other relief from a court of competent jurisdiction based upon the terms of the Agreement or the General Terms in any case in which it is the substantially prevailing party.
14. Severability. If any provision of the Agreement or the General Terms is invalidated by a court of competent jurisdiction, then all of the remaining provisions of the Agreement and the General Terms will continue unabated and in full force and effect.
15. No Third-Party Beneficiaries. The Agreement and the General Terms are not intended to confer upon any person other than the Parties any rights or remedies whatsoever.
16. No Waiver; Cumulative Remedies. No delay on the part of either Party or failure by that Party to exercise any power, right or remedy under the Agreement or the General Terms shall operate as a waiver thereof, nor shall any single or partial exercise of any power, right or remedy or any abandonment or discontinuance of steps to enforce such right, power, or remedy preclude other or further exercises thereof, or the exercise of any other power, right or remedy. The rights and remedies in the Agreement and the General Terms are cumulative and not exclusive of any rights or remedies (including, without limitation, the right of specific performance) which either Party would otherwise have.
17. Further Assurances. Affiliate shall cooperate fully and execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of the Agreement or General Terms.