Last modified: August 4, 2020 (the “Effective Date”).
Mercado Boricua, LLC (the “Company”), is a Puerto Rico limited liability company with its principal place of business located at Caguas, Puerto Rico, represented by Joaquín Rodriguez, Founding Member and Chief Executive Officer, with email, email@example.com, and telephone, (939)-333-2230; that provides on-demand online marketplace based services pursuant to Section 1.01 (the “Services”); and You (the “Client”), want to participate, receive, and benefit from the Services (the “Agreement”). Company and Client may be referred to as a “Party,” or collectively as the “Parties.”
SERVICES AND COMPENSATION
Services. During the term of this Agreement, the Company will provide the Client the following services:
An online marketplace platform that will allow Client to connect with potential Customers (the “Customer”), to offer and sell a selection of his/her products (the “Platform”).
Processing of Customer’s transaction through the Platform.
Possible delivery service for the products, through independent contractors appointed by Company, from the Company’s site, per Section 1.02, to the Customer’s locality.
Payment capability of the total amount of any transaction, including applicable taxes, minus the stipulated commissions, pursuant to Section 1.04.
Possible promotion and marketing services, including the design and implementation of promotional campaigns.
Consignment. It is possible that the Client delivers their merchandise to the Company for purposes of storage and a more efficient and faster distribution. Client understands and agrees that Company does not own or is buying Client’s merchandise and that the only purpose of having the merchandise in Company’s property is for storage. Company will store the merchandise according to the membership subscription selecter by the Client, and if by the end of that period Client’s merchandise is not sold out, Company will return the merchandise to Client. Company will respond for the slight guilt of care of the merchandise. Nevertheless, Company will not be liable for the deterioration or loss arising from the nature of the merchandise, its own defect or force majeure.
Fulfillment Service. The Company also provides fulfillment service to help the Client manage and grow its service (the “Fulfillment Service”). With the Fulfillment Service, the Company will provide shipping and handling and will promote the Client’s product. Clients may receive the benefits of the Fulfillment Service that the Company provides by either paying a membership fee or by accepting the consignation clause above, Section 1.02 (the “Fulfillment Fee”). The Fulfillment Fee is $______ and the Company will provide the Fulfillment Service for ( ) months.
No Fulfillment Service. For those Clients who are not part of the Fulfillment Service that the Company provides, the Company will not provide any Fulfillment Service. In such circumstances, the Client is responsible for the shipping and handling of their products, as well as the configuration of their online shop, terms and shipping policy.
Work before signing of the Agreement. Client acknowledges and agrees that prior to the granting of this Agreement, it is possible that Company has initiated to provide the Services.
Compensation. In consideration of the Services provided by Company under this Agreement, Client will pay Company, in USD ($), the following fees and applicable taxes according to membership subscriptions selected by the Client: The commissions apply for any and all transactions, excluding Customer’s applicable taxes (the “Fee”).
Client’s Responsibility. Client will be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client under this Agreement. Client will also be responsible for the following:
Notify the Company as soon as it becomes aware of the exhaustion of the inventory of the products and/or merchandise that appear on the Platform.
Comply with the tax obligations before the Department of the Treasury to remit the payment of the Sales and Use Tax (“IVU”, for its Spanish acronym) on the products and/or merchandise sold through the Platform.
Take any reasonable and necessary measures to fully comply with this Agreement so as to avoid any delay or damage to the Customer and the Company.
Comply with any additional incentive or obligation as agreed by the Parties from time to time.
Method of Payment. As a general rule, the Company will charge the Fee at the time of the transaction. However, if this is not possible for any reason, Client will pay Company through any of the following methods of payment: (1) cash; (2) check; (3) direct deposit also known as ACH; and (4) the electronic payment method known as “ATH Móvil” to [pATH/mercadoboricua].
Late Payments and Interests. All late payments will bear interest at the lesser of the rate of 10 % per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client will also reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Company does not waive by the exercise of any rights hereunder), Company will be entitled to suspend the provision of any Services if Client fails to pay any amount or fees when due hereunder and such failure continues for 30 days following written notice thereof.
TERM AND TERMINATION
Term. This Agreement will commence as of the Effective Date and will continue indefinitely until Client removes the merchandise from the Platform, pursuant to Section 2.02.
General Termination. Either Party may terminate this Agreement at any time and without liability by providing the non-terminating Party a written notice thirty (30) days before.
Termination by Default. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
Breaches this Agreement, an such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
Becomes insolvent or admits its inability to pay its debts generally as they become due.
Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven natural days or is not dismissed or vacated within 45 natural days after filing.
Is dissolved or liquidated or takes any corporate action for such purpose.
Makes a general assignment for the benefit of creditors.
Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Non-Payments. Notwithstanding anything to the contrary in the section above, Company may terminate this Agreement before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder: (a) and such failure continues for 15 days after Client’s receipt of written notice of nonpayment; or (b) more than 3 times in any 6 month period.
Survival. The rights and obligations of the Parties set forth in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
INTELLECTUAL PROPERTY AND CONFIDENTIALITY
Ownership. Unless otherwise explicitly agreed in writing by the Parties, Company holds an owns all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”), in and to all documents, work product and other materials delivered to Client under this Agreement or prepared by or on behalf of Company in the course of performing the Services–except for any Confidential Information of Client or Client’s materials. The Client grants a universal, free, and general Intellectual Property License to the Company to promote, advertise and market the Client’s products and goods.
Future Agreements. The Parties agree that if Client wants to use, distribute, acquire, purchase, or buy the Intellectual Property Rights, the considerations, terms, and conditions of such usage, distribution, assignment or purchase agreement will be further laid out in a separate contract.
Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 14 days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that:
is or becomes generally available to the public other than as a result of Receiving Party’s breach of this section;
is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or
was or is independently developed by the Receiving Party without using any Confidential Information.
Obligation. The Receiving Party shall:
protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
Trade Secret Violation. Client acknowledges and convenes that any breach of any provision hereof –particularly regarding Confidential Information– will be usurpation of Company’s trade secrets and will cause irreparable harm and damage to Company. Company shall be entitled to enjoin any actual or threatened violation of any of the provisions in this Agreement. In addition to injunctive relief, the non-breaching Party may recover damages from breaching Party for any loss caused by any violation of the provisions of this Agreement (including violations by third parties to which Recipient discloses information). In any action brought to enforce any of the provisions of this Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees and costs (including the cost of in-house counsel).
Notification of Legal Obligation. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this section only, Receiving Party’s Group shall mean the Receiving Party's affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
LIMITATION OF LIABILITY
Limitation of Liability: IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
INSURANCE AND INDEMNIFICATION
Insurance. During the term of this Agreement and for a period of one (1) year thereafter, Client shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to, commercial general liability, with policy limits sufficient to protect and indemnify Company and its affiliates, and each of their officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and successors and assigns, from any losses resulting from your or your agents’, contractors’, servants’ or employees’ conduct, acts, or omissions. Upon Company’s request, Client shall provide Company with a certificate of insurance from Client insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name Company as an additional insured. Company shall provide Client with 30 days’ advance written notice in the event of a cancellation or material change in Company’s insurance policy. Except where prohibited by law, Client shall require its insurer to waive all rights of subrogation against Company’s insurers and Company.
Indemnification. Client agrees to fully indemnify, defend and hold harmless Company and all of its respective affiliates and subsidiaries, and all of their respective directors, officers, agents, representatives and employees against any and all costs, claims, liens, damages, losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action, liability, and suits of any kind and nature, made against Company directly arising out of Client: (i) failure to adhere to the provisions of this Agreement; and (ii) bodily injury, death of any person or damage to real or tangible, personal property resulting from Client’s acts or omissions.
REPRESENTATIONS AND WARRANTIES
Warranty. Company warrants that it shall perform the Services:
In accordance with the terms and subject to the conditions set out in this Agreement.
Using personnel of commercially reasonable skill, experience, and qualifications.
In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
Exclusive Remedy for Breach of Warranty. Company’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty shall be as follows:
Company shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Company cannot cure such breach within a reasonable time (but no more than 30 days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with the Termination by Default clause of this Agreement.
In the event the Agreement is terminated under Section 6.02 (a) above, Company shall within 30 days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for the Service, less a deduction equal to the fees for receipt or use of such Service up to and including the date of termination on a pro-rated basis.
The foregoing remedy shall not be available unless Client provides written notice of such breach within 30 days after delivery of such Service or Deliverable to Client.
No Other Warranty. SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 6.01, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
Governing Law. This Agreement and all questions relating to its validity, interpretation, performance and enforcement shall be governed by and construed in accordance with the laws of the Commonwealth of Puerto Rico, notwithstanding any conflicts of laws, doctrines of such states or other jurisdictions to the contrary.
Representation by Counsel; Interpretation. The Parties acknowledge that they have been represented by counsel, or afforded the opportunity to be represented by counsel, in connection with this Agreement. Accordingly, any rule or law or any legal decision that would require the interpretation of any claimed ambiguities in this Agreement against the party that drafted it has no application and is expressly waived by the Parties. The provisions of this Agreement shall be interpreted in a reasonable manner to give effect to the intent of the Parties hereto.
Consent. Whenever consent is required from Client, such consent shall be deemed to have been given unless notice to the contrary is furnished within five (5) days following a written request, therefore.
Notices. All notices hereunder shall be in writing, and shall be served by mail (certified, return receipt requested), duly addressed to the Parties at their respective addresses given above. Either Party may specify a different address for such purpose by notice given to other in the same manner.
Headings. The headings of the clauses of this Agreement are solely for the purpose of convenience. They are not a part hereof and shall be not used in the construction of any provision.
Waiver; Separability. No waiver by either Party of the breach of any provision of this Agreement shall be deemed to be a waiver of any preceding or succeeding breach of the same or similar nature. If any part of this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having the jurisdiction to make such determination, the remainder of this Agreement shall remain in full force and effect.
Modification. This Agreement may not be changed or modified, nor may any provision hereof be waived, except by any agreement in writing signed by the party against whom enforcement of the change or medication is asserted.
Entire Agreement. This Agreement constitutes the entire understanding between the parties. All previous representations and undertakings, whether oral or written, have been merged herein. No representations or warranties have been made other than those expressly set forth herein. This Agreement may not be amended or discharged, nor may any provision be waived, except by an agreement in writing signed by both Parties.
Assignment. Client shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this section shall be null and void. No assignment or delegation shall relieve Client of any of its obligations under this Agreement. Company may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of service provider's assets without Customer's consent.
Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
Relationship of the Parties. The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the Services by Company shall be under its own control, Client being interested only in the results thereof. Company shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet Client’s final approval and shall be subject to the Client’s general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Tax Responsibilities. The Parties agree that the fees and/or payment under this Agreement is for the Services rendered as independent contractor, and as such Company will be responsible for payment of all income taxes and individual and employer’s withholdings under the applicable tax laws of Puerto Rico or the U.S. Internal Revenue Code. Client shall not make any withholdings or deductions for Social Security, income tax or any other purpose on behalf of, its officers, agents, employees, successors and assigns, but Client shall comply with all its tax reporting and withholding obligations, if any. Client will not gross up the tax liability of Company in any amounts paid. The Parties represent that they have been advised by their own tax advisors as to the tax treatment of the amount paid under this Agreement and they are not relying on any advice received from each other.
Force Majeure. Company shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company including, without limitation, so called acts of god, flood, hurricanes, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Client shall be entitled to give notice in writing to Company to terminate this Agreement.
Non-Solicitation. Neither Party shall for the duration of this Agreement and for one (1) year after termination thereof hire, employ or solicit any employee of the other Party, as their own, or have such employee work for such Party either directly or indirectly
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