THINGPARK MARKET BUYER AGREEMENT
This ThingPark Market Buyer Agreement (this "Agreement") is between ThingPark Market ("ThingPark") and you (if registering as an individual) (“You”) or the entity that you represent (if you are registering as a business (“Buyer”) Before clicking to agree to this Agreement, please read carefully the terms and conditions below.
This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by checking the box (or similar action) to accept the Agreement that is presented to you. By clicking below to enter this ThingPark Market Buyer Agreement, you also reaffirm your agreement to abide by the Marketplace Guidelines.
- 1. Introduction to ThingPark Market
- 2. Key Definitions
- 3. Descriptions of the Services
- 4. Access to the Service
- 5. Obligations concerning Transactions through the Service
- 6. Buyer License Agreement
- 7. Reservations of Rights
- 8. ThingPark Market Terms
- 9. Disputes - Disagreements
- 10. Financial Terms
- 11. Assessment Tool
- 12. ThingPark Control of Marketplace
- 13. Term and Termination
- 14. Representations and Warranties
- 15. Indemnity
- 16. ThingPark Confidential Information
- 17. Information You Provide Is Not Confidential
- 18. ThingPark Trademarks/Publicity
- 19. Disclaimers and Limitations of Liability
- 20. Agreement Changes
- 21. Dispute Resolution; Governing Law
- 22. General
1 Introduction to ThingPark Market
The ThingPark Market is a platform that connects Buyers with Sellers who manufacture and/or distribute Products. ThingPark obligation is to collect payment from Buyers.
2 Key Definitions
2.1. " ThingPark Market" or "Marketplace" is defined by any location at which ThingPark makes available or lists Marketplace Products via various channels including but not limited to online platforms, applications, mobile interfaces, or other user interfaces that allows for the discovery, download or purchase of Products.
2.2. "Marketplace Guidelines" is defined by terms, rules & policies and are available via ThingPark Market home page. These Guidelines set forth requirements for You to purchase the Products in the ThingPark Market.
2.3. "New Versions" means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to Products.
2.4 “Products” are defined by any hardware products, software products and associated services that are offered on the Marketplace.
2.6 “Wholesale Buyers” are defined by Buyers that comply with eligibility criteria as defined by ThingPark Market. The Wholesale buyers may be entitled to special prices.
3 Descriptions of the Services
The ThingPark Market provides a platform that is a location for Buyers to locate and purchase new and used products from Sellers that are independent of ThingPark Market. The sale of Products shall be direct between the Buyer and the Seller.
When You make a purchase through the Marketplace, You are purchasing the product from the independent seller and not from ThingPark. You agree that ThingPark is not an agent for you or for the Seller and has no authority to act on your or on a Seller’s behalf. ThingPark reserves the right to change any of the terms and conditions contained in this Marketplace Buyer Agreement, the Marketplace Guidelines or any other policies or rules governing the Marketplace at any time and in its sole discretion. Any such changes will be effective upon the posting of the revised Marketplace Buyer Agreement or such policies and rules on the site. Material changes to the Marketplace Buyer Agreement shall be accompanied with a 30 days notice on the Marketplace area of the Site, and you are solely responsible for reviewing any such notice and the corresponding changes to the Marketplace Buyer Agreement. YOUR CONTINUED USE OF THE MARKETPLACE FOLLOWING ANY SUCH REVISIONS TO THE MARKETPLACE BUYER AGREEMENT OR SUCH POLICIES AND RULES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO ANY SUCH CHANGES, DO NOT CONTINUE TO USE THE MARKETPLACE AND ASSOCIATED SERVICES.
4 Access to the Service
In addition to complying with these Buyers Terms, access to the Service shall be subject to the creation of your ThingPark account when required. This shall require the entering of personal identification data during the account creation process as well as within the purchasing process, You agree to provide only accurate information and to inform ThingPark Market immediately of any changes that would impact the delivery of the Service.
In order to use the ThingPark Service, You maintain the username and password that you created when you opened your account. You agree to keep this information confidential and to not disclose this information to any third party. You are solely responsible for access to the Service using your username and password will not be tolerated by law.
In case of loss, misappropriation or unauthorized use of your username and/or password, You shall agree to immediately notify ThingPark’s support services.
5 Obligations concerning Transactions through the Service
5.1 General Obligations
You as a Buyer understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the ThingPark Market site and services. In connection with your use of the site, application, services, and collective content, you agree to the following:
- You agree to comply with relevant business legislations (including registration, accounting obligations, social and fiscal legislation).
- You will not accept any solicitation from Sellers who would contact You outside of the ThingPark Market portal in any form whatsoever
- You agree to not infringe the rights of ThingPark or the rights of any other person or entity, including without limitation, their intellectual property, privacy, publicity or contractual right.
- You agree to avoid, without this list being exhaustive, the use of virtual or trade names, pseudonyms, statements or other messages which may be abusive, contrary to public convention or morality.
- You agree to provide accurate information and to maintain up to date.
You hereby represent and warrant that your use of the Marketplace will comply with applicable laws, ordinances and regulations. ThingPark may exclude any Buyer, including You, from making purchases in the Marketplace at any time and for any reason.
5.2 Information concerning Products Offered on the Site
You will be notified by the Seller of all information enabling You to know the essential and technical characteristics of product offerings (if applicable, composition of the product including accessories, origin, legal guarantees, the terms of their implementation, or any other contractual conditions, etc.).
The sale, delivery of Products and after sales services You are being offered via the ThingPark Market are the Sellers’ responsibility including the description associated with Products offered on the Site, the accuracy of the information contained therein that should not mislead You with regards to the characteristics of the Product, the associated guarantees, and the state or price of the Product.
5.3 Obligations concerning Taxes
You agree that You and Seller are responsible for determining the amount of sales, use or other taxes that you may owe as a result of your Marketplace purchase.
Prices exposed exclude taxes, delivery charges and any additional charges (“Taxes”) These Taxes will be added by ThingPark Market to the price of the Products when You validate your purchase order based on Sellers price information.
Seller will be in charge of VAT rules calculation and other taxes when applied. Seller is responsible to collect, report and remit any sales, use or other taxes required under applicable law
Prior to Order confirmation, Buyer needs to verify that the VAT calculation and other taxes added by ThingPark Market are accurate. If error in the calculation occurs, Buyer shall contact immediately Marketplace support (firstname.lastname@example.org) and authorizes them to make proper adjustments including associated payment fees.
You agree (a) that ThingPark has no responsibility to collect, report or remit sales, use or any other applicable taxes in connection with your purchase, and (b) to fully indemnify, defend and hold ThingPark harmless from any and all claims, demands, damages, awards, fines, costs, expenses and liability in any way associated with foregoing.
Purchase Order confirmation means automatic acceptance of the currency that is mentioned in the Purchase Order.
5.4 Buyer Delivery-Related Obligations
Shipment of the Products You Purchase in the Marketplace are made by the Seller and not the Marketplace.
You will be responsible for the accuracy of Your delivery address and shipping modes. Information must be entered prior to confirmation of the Order. If any changes are made afterwards, you will not be guaranteed that the changes will be taken into consideration.
You agree that ThingPark will provide to the Seller your shipping address for shipment of the products You purchase.
ThingPark shall forward confirmation and shipping details to the Seller within 2 business days from date of payment.
Thereafter, ThingPark shall send You an order confirmation that the product has been shipped.
You agree to pay the shipping charges in full for any product that you purchase.
When you make a purchase through the Marketplace, you pay the Seller through your My Account using a valid credit card issued to you or wire transfer or any other mean of payment. If using a credit card, Your credit card will be authorized for the entire order amount immediately upon your placement of the order, and will be charged immediately.. You hereby authorize ThingPark to charge your credit card accounts for any amount that you may owe ThingPark or the Seller. In addition, ThingPark may also set off any amounts that you owe to ThingPark or the Seller against any amounts owed to you by ThingPark or the Seller. IN FACILITATING YOUR PAYMENT TO THE SELLER, THINGPARK DOES NOT PROVIDE YOUR CREDIT CARD INFORMATION TO THE SELLER.
5.6 Changing or Cancelling Marketplace Orders
Once You have placed an order for a product in the Marketplace, Seller will be handling all aspects of the order process. ThingPark will not change or cancel any order made by you, including any change to shipping or billing information. You will need to contact the Seller for any changes or cancellations that you wish to make to your order. The seller’s contact information can be found in your order detail located in your “My Account” or in the email we sent to you confirming your order.
5.7 Marketplace returns.
You may not make any returns to ThingPark of products You purchase in the Marketplace. You must contact the Seller for any product returns that you wish to make.
6 Buyer License Agreement
6.1 Buyer License Agreement ("EULA").
Seller not ThingPark, license their Products to You. Seller may provide their own EULA ("Seller EULA") with any Marketplace Products. However, Seller EULA (if any) must comply with the terms and conditions of this Agreement and must, at a minimum, include terms consistent with, and at least as protective of ThingPark, as the terms in the Standard EULA Terms (defined below). If Seller does not provide a Seller EULA, then Seller agrees that the provisions of the ThingPark Market Guidelines in which ThingPark designates default Buyer license terms (the "Standard EULA Terms") will apply to Your use of your Marketplace Products. So you would need to make available upon request a copy of your current Buyer Agreement. The Standard EULA Terms specify, among other things, that Seller is the licensor of their Marketplace Products and that ThingPark is not a party to this EULA. You agree that ThingPark does not and will not have any responsibility or liability related to compliance or non‐compliance by Seller or any Buyer under a Seller EULA or the Standard EULA Terms.
6.2 ThingPark Market Support for Buyers.
ThingPark Market will provide Buyers a direct connection with Sellers. ThingPark does not provide any customer support for any purchase you make through the marketplace, and you agree that ThingPark is not responsible to provide any such support. If you have any questions about the product you purchased or your shipment you must contact the seller of your product directly for any customer support that you need. Seller will use commercially reasonable efforts to provide telephone, web-based and/or email support to You for Seller Marketplace Products during normal business hours. Seller will provide to ThingPark a current email address to which ThingPark may direct inquiries from You regarding Seller Marketplace Products. Seller is solely responsible for providing all support for their Marketplace Products, and for providing to users of their Marketplace Products all information necessary for their use of Marketplace Products.
7 Reservations of Rights
ThingPark retains all right, title and interest in and to the ThingPark Market, ThingPark Materials, and other ThingPark products, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.
8 ThingPark Market Terms
8.1. Prohibited Actions; Responsibilities. You may not reverse engineer, disassemble or decompile any binary code used in connection with the ThingPark Market, including any ThingPark Materials that ThingPark provides you. You will not take any action that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of ThingPark or of any Seller or other third party. You agree not to make any representations, guarantees or warranties (1) that violate any laws or regulations, including any false advertising, (2) with respect to ThingPark, the ThingPark Market, or ThingPark's Product or Services. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue ThingPark or the Marketplace.
8.2. ThingPark Market Operations. ThingPark maintains at its sole discretion to determine all features and operations of the ThingPark Market. With respect to Paid-via-ThingPark Products only, ThingPark is responsible for and has sole discretion related to processing payments, collecting payments, executing refunds to You upon request by Sellers or by authorized third parties. All Sales through the ThingPark Market will be processed by ThingPark's payment systems.
8.3. Buyers Data and Privacy‐Related Obligations. In addition to sales data related to Paid-via-ThingPark Products, if necessary, You acknowledge, consent and agree that ThingPark will provide the Seller with access to information that is reasonably necessary for Sellers to ship the Products to You and to communicate with You regarding such shipment and any issues that may arise in connection with your Purchase. This information includes but is not limited to your “ship to” information and Your name, company name (if any), physical or email addresses, and phone numbers ("ThingPark-Collected Buyer Data"). Based on the activities under this Agreement, subject to the provisions of this Section 8.4, Seller may also collect other information or data from You, some of which may include personally identifiable information ("Seller-Collected Buyer Data"). Any Buyers data or information, whether ThingPark-Collected Buyers Data or Seller-Collected Buyer Data, is, collectively "Buyers Data". For all Your Data Seller will (i) use and authorize others to access and use the Buyer Data only for the purposes of providing and improving the functionality and user experience of their Marketplace Product, marketing Seller Marketplace Products to Buyers or such other purposes You would have expressly permitted (in each case, in compliance with all Laws), and not modify any Buyer Data in a manner that adversely affects it integrity, and (ii) treat, store, transmit, disclose and use the information only in accordance with applicable privacy notices and laws, rules, regulations, orders, and other requirements of governmental agencies (together, "Laws"). Without limiting the foregoing and with respect to Seller-Collected Buyer Data, Seller shall provide legally adequate privacy notices You and You will be required to obtain all necessary consents under Law and (y) You will be notified that ThingPark is not responsible for the privacy, security or integrity of Seller-Collected Buyer Data. You are aware that Seller shall also maintain and handle all of Your Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable Laws. For the sake of clarity, ThingPark shall not be liable for or have any responsibility in connection with Seller-Collected Buyer Data You hereby agree that ThingPark shall have no responsibility, obligation or liability with respect to the disclosure of such information to, or any collection, use or disclosure of such information by any Seller.
8.4. "Feedback" means any feedback, comments, suggestions, ideas, description of processes or other information that You may provide to ThingPark from time to time about or in connection with ThingPark Market, including any ideas, concepts, know-how or techniques contained therein. You hereby grant ThingPark a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, including incorporating or implementing the Feedback in the ThingPark Market or any ThingPark products, applications or services. You agree that ThingPark may exploit all Feedback without any restriction or obligation with regards to intellectual property rights or otherwise.
8.5. Aggregated Information. In addition to ThingPark's other rights, ThingPark may collect aggregated information regarding the ThingPark Market and Marketplace Products (excluding any personally identifiable information), including through the use of third party analytics tools such as Google Analytics ("Aggregated Information") and may exploit and use the Aggregated Information for any purpose without restriction.
9 Disputes - Disagreements
THINGPARK IS NOT THE SELLER/MERCHANT OF ANY OF THE GOODS OR SERVICES ON THE MARKETPLACE.THINGPARK HAS INSTITUTED A CLAIM PROCESS TO ASSIST YOU WITH CLAIMS THAT YOU MAY HAVE WITH THE SELLER.
At any time, the Buyer has the option to contact the Seller and address all requests or claims with regard to Products ordered provided by the Service, including claims to any valid warranties.
A trigger shall be provided for the Buyer to indicate in Your account - within 14 days from the date he is notified for the Shipping - any complaint concerning Products, (e.g. product not received, etc.).
In case of You place a complaint regarding a product, including where the Seller is informed of the complaint through the tools made available ThingPark Market’s Service and/or by an email from ThingPark Market, the Seller shall be personally responsible for the resolution of the dispute.
Beyond these deadlines, the Buyer retains the right to contact the Seller to make any claim for Products ordered.
Disputes shall be settled directly between You and the Seller where necessary.
Buyers will be removed from the ThingPark Market Place if there is a complaint rate of over 5% comprising of at least 5 sales orders since account creation.
10 Financial Terms
List Price. You are aware that Subject to the terms of this Agreement, Seller has at its discretion to set the commercial pricing tiers for initial sales, licenses or subscriptions to their Products (the "List Prices"). Seller will determine the pricing for renewals, upgrades that add more licenses/users, New Versions and other support and maintenance, and academic and community licenses acquired through the ThingPark Market ("Follow-on Sales"), all in accordance with its standard formulas and policies. You are aware that that any List Price may not exceed, at any time, the lowest list price or suggested retail price for each applicable pricing tier for the Products (including any similar edition, version or release) available on any Similar Service or the lowest actual price at which Seller makes such Paid-via-Marketplace -on available for sale through any Similar Service. Seller will update the List Price for each Product as necessary to ensure that it meets the requirements of this Section 9.
The obligations of payment will be based upon the following conditions.
"Sale" includes any initial or renewal sale, subscription or license of a Product (or related content or services) through the ThingPark Market.
The Sale as defined above will be completed as soon as You have paid the full amounts including taxes, shipment and miscellaneous. If You buy a Product using a on line payment or any other payment method authorized by the Marketplace, final payment will be deemed to have occurred when the payment Gateways partner or bank has fully settled the payment for the applicable purchase.
11 Assessment Tool
ThingPark provides You with means to review the performance of Sellers at the end of the confirmation of receipt of products ordered, thus enabling buyers to choose products from Sellers with the best profiles, who comply with the Terms and Conditions.
The assessment shall be based on an evaluation criteria and the awarding of stars.
12 ThingPark Control of Marketplace
ThingPark may determine at its sole discretion to make available or list any Marketplace Product through the ThingPark Market. ThingPark may stop any transaction, or take other actions as needed to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect Buyers..
13 Term and Termination
13.1. Term. The term of this Agreement (the "Term") will begin on the date of the acceptance of the Agreement it and will continue until You or ThingPark terminates it.
13.2. Termination Rights. Either ThingPark or You are entitled to terminate this Agreement and access to your account (and/or this Agreement with respect to any particular Product with thirty (30) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (a) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, or (b) the party breaches its confidentiality obligations under this Agreement, infringes or misappropriates the terminating party's intellectual property rights.
13.2.1. Notwithstanding anything to the contrary in this Agreement, immediately upon notice to You (or with the notice specified by ThingPark at the time), ThingPark may also terminate this Agreement (and/or terminate or suspend either your account on the Marketplace or this Agreement with respect to any particular Product under the following circumstances: (1) ThingPark ceases to operate the Marketplace, (2) you violate ThingPark's Marketplace Guidelines, or (3) ThingPark determines (in its discretion) that your participation in the Marketplace could result in legal or business liability to ThingPark or any third party or otherwise harm the Marketplace or other Marketplace Sellers or users.
13.3. Transition. Following any termination or expiration of this Agreement or withdrawal of your Product from the Marketplace, in ThingPark's discretion, (a) ThingPark may continue to fulfill any Buyer orders for Products pending as of the date the termination takes effect, and (b) ThingPark will use reasonable efforts to take down the listing for your Products within forty-five (45) days after termination (the "Transition Period"), but in any event ThingPark may continue to make available Paid-via-ThingPark Products for further access, downloads or re‐downloads by existing Buyers of those Products for the duration of the Buyer's license or subscription to the Products.
13.3.1. Prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible doing the following, consistent with ThingPark's guidance and instructions:
- arranging for ongoing support and maintenance (including New Versions) for Seller Products if you have purchased such rights, and
- communicating such matters accurately and in a positive and professional manner to You. If specified by ThingPark, the Transition Period may commence upon a notice of termination rather than the effective date of termination. For the sake of clarity, after termination, Seller are not obligated to provide any New Versions of your terminated Products to ThingPark for distribution under this Agreement thereafter, but ThingPark's post-termination rights in this paragraph will apply for the latest version of the Product Seller provided to ThingPark hereunder (and any prior version).
13.4. Effect of Termination; Survival. Unless otherwise specified by ThingPark: (a) you acknowledge that all EULAs and Your associated licenses and subscriptions to Products will survive termination or expiration of this Agreement in accordance with their terms.
14 Representations and Warranties
You represent and guarantee:
14.1. You are at least 18 years of age and are able to form a legally binding contract. If Seller is a business or other legal entity and not an individual, then the individual entering into this Agreement on Seller's behalf represents that she or he has all necessary legal authority to bind Seller to this Agreement;
14.2. You have the full right, power, and authority to enter into and fully perform this Agreement;
14.3. You will have obtained the rights necessary for the exercise of all rights granted under this Agreement and to Buyers in relation to the Content, and you will be solely responsible for and will pay any licensors or co‐owners any royalties or other monies due to them related to such Content;
14.4. None of the following will violate any Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) the Content; (iii) the sale or distribution of the Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Content;
14.5. You will immediately notify ThingPark if you unexpectedly lose any Intellectual Property Rights related to your Marketplace Add-ons or become aware of a third party claim related to these rights;
14.6. Your Content will not contain any viruses, spyware, "Trojan horses," or other "malware" or harmful code, and will not cause injury to any person or damage to any property; and
14.7. You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to Sellers (e.g., as part of a Buyer EULA) based on your use of third party "open source" software or other third party intellectual property in any Add-on. You will also promptly make available to ThingPark, Sellers and any other third party that is entitled to it, the source code corresponding to any Add-on or portion thereof if and in the manner required by applicable third party terms and conditions. ThingPark's exploitation (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third party terms or agreements of any kind.
15.1. By ThingPark. Subject to the terms and conditions of this Agreement: (1) ThingPark shall defend you of a Paid-via-ThingPark Products from claims by third parties alleging that the ThingPark Market or Guidelines used in connection with such Add-on infringes such third party's U.S. or Australian copyright or trademark and (2) ThingPark shall pay damages finally awarded by a court of competent jurisdiction against such Buyer for such a claim or, if ThingPark settles the claim, the settlement amounts. ThingPark's obligations in this Section 15 apply only to the ThingPark Market and Guidelines themselves and not to any Marketplace Add-ons, other ThingPark products or services, or other third party content hosted on or used with the ThingPark Market and Guidelines, and in any case ThingPark's obligations do not apply if the alleged infringement, misappropriation or violation resulted from any modifications, combinations, or unauthorized use of the ThingPark Market or Guidelines. As a condition to ThingPark's obligations under this Section 12.1, you must provide ThingPark (i) prompt written notice of the claim (and in any event notice in sufficient time for ThingPark to respond without prejudice), (ii) the exclusive right to control and direct the investigation, settlement and defense (if applicable) of the claim, and (iii) all reasonable necessary cooperation. This Section 12.1 sets forth ThingPark's sole liability and your exclusive remedy with respect to third party claims of intellectual property rights infringement.
15.2. By You.
You agree to indemnify, defend and hold harmless ThingPark and its parents, sister companies, subsidiaries, affiliates, service providers, sellers, distributors, licensors, officers, directors and employees from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or related to your violation of any provision of this Marketplace Buyer Agreement, or your violation of any law, regulation or third-party right.
IN THE EVENT OF A DISPUTE OR CLAIM REGARDING ANY ORDER OR PURCHASE MADE THROUGH THE MARKETPLACE, OR BETWEEN YOU AND A SELLER OR OTHER THIRD PARTY RELATED TO ANY ORDER OR PURCHASE MADE THROUGH THE MARKETPLACE, YOU HEREBY RELEASE THINGPARK AND ITS PARENTS, SISTER COMPANIES, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, SELLERS, DISTRIBUTORS, LICENSORS, OFFICERS, DIRECTORS AND EMPLOYEES FROM ALL CLAIMS, DAMAGES OR DEMANDS OF ANY KIND, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE OR CLAIM.
THINGPARK EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE MARKETPLACE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR QUALITY OF DATA AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES OR CORRESPONDENCE TO DESCRIPTION.
16 ThingPark Confidential Information
16.1. Definition. All information disclosed by ThingPark that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is "Confidential Information". Confidential Information includes non-public aspects of the ThingPark Market and ThingPark's applications; non-public aspects of third-party applications listed in the ThingPark Market to which you obtain access as a result of the relationship between you and ThingPark under this Agreement; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and ThingPark under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to You before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to ThingPark or anyone else.
16.2. Your Obligations. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide ThingPark with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at ThingPark's cost, if ThingPark wishes to contest the disclosure.
16.3. Injunctive Relief. In event of actual or threatened breach of this Section 13, ThingPark shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.
17 Information You Provide Is Not Confidential
17.1. You should not provide to ThingPark any information that you consider confidential and you agree that ThingPark is not subject to any confidentiality obligations or use restrictions related to information that you may provide to us in relation to this Agreement.
18 ThingPark Trademarks/Publicity
You will: (i) only use the ThingPark Marks in the form and manner as set forth by ThingPark and only in connection with the sale of your Marketplace Add-ons in the ThingPark Market; (ii) not register any domain names that contain any terms that are the same or similar to any ThingPark Marks; and (iii) upon expiration or termination of this Agreement for any reason, immediately cease all use of the ThingPark Marks, unless you are otherwise authorized to continue using the ThingPark Marks pursuant to a separate written agreement with ThingPark. "ThingPark Marks" means the trademarks, trade names, service marks and logos owned or otherwise used by ThingPark. Nothing contained herein shall grant you any ownership right in the ThingPark Marks.
19 Disclaimers and Limitations of Liability
19.1. Disclaimer of Warranties. THE THINGPARK MARKET AND ANY THINGPARK MATERIALS ARE PROVIDED "AS IS" AND THINGPARK EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
19.2. Limitations of Liability. THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE MARKETPLACE, THE USE OF ANY PRODUCTS AND/OR SERVICES OFFERED ON OR IN CONNECTION WITH THE MARKETPLACE, AND/OR THE USE OF ANY CONTENT REMAINS WITH YOU. IN NO EVENT SHALL THINGPARK OR ITS LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS MARKETPLACE BUYER AGREEMENT, YOUR USE OF THE MARKETPLACE OR THE USE OF OR INABILITY TO USE ANY PRODUCTS, SERVICES, AND/OR CONTENT OBTAINED THROUGH THE MARKETPLACE, ANY DELAY OR INABILITY TO USE THE MARKETPLACE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT OBTAINED THROUGH THE MARKETPLACE, OR OTHERWISE ARISING OUT OF THE USE OF THE MARKETPLACE OR THE SITE WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF THINGPARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS MARKETPLACE BUYER AGREEMENT, THE MAXIMUM LIABILITY THAT THINGPARK SHALL HAVE IS LIMITED TO ANY COMMISSIONS ACTUALY RECEIVED BY THINGPARK IN CONNECTION WITH ANY PURCHASES MADE BY YOU FROM A SELLER THROUGH THE MARKETPLACE. ORDER INFORMATION SUCH AS BILLING OR SHIPPING ADDRESS THAT IS INACCURATE OR INCOMPLETE MAY RESULT IN DELAYS THAT SHALL NOT BE THE RESPONSIBILITY OF THINGPARK. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND FUNDAMENTAL BREACH OF THIS MARKETPLACE BUYER AGREEMENT) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
19.3. Basis of Bargain; Failure of Essential Purpose. The parties have entered into this Agreement relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in this Agreement and agree that such provisions are an essential basis of the bargain between the parties. The parties further agree that all such limitations, disclaimer and other provisions will survive and apply even if any limited remedy is found to have failed of its essential purpose.
20 Agreement Changes
This Agreement relates to the broader ThingPark Market, which will change over time. ThingPark reserves the right to change this Agreement at any time in its sole discretion with the changes to become effective one (1) week after notice. ThingPark will give you notice of the changes by posting an updated version of this Agreement online or by emailing you at an email address you have provided. If You do not agree to any of the proposed changes, You may terminate this Agreement prior to the date on which the changes were to take effect by (i) providing written notice to ThingPark and (ii) terminating this Agreement and withdrawing all of your Add-ons from the Marketplace. If You so terminate the Agreement, the proposed changes will have no effect on you. However, if You do not so terminate then your continued participation in the ThingPark Market after changes to this Agreement take effect will constitute your acceptance of the changes.
21 Dispute Resolution; Governing Law
21.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Paris (France). All negotiations and arbitration proceedings pursuant to this Section 18.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English or in French.
22.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of France, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 18.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of Paris, France and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Paris, France, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, ThingPark may bring a claim for equitable relief in any court with proper jurisdiction.
22.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of this Section 18, nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
This Agreement may not be amended except as provided in Section 17 (Agreement Changes) above. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word "including" will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors. Each party will bear its own costs and expenses in performing this Agreement. ThingPark's failure to enforce any provision of this Agreement will not constitute a waiver of ThingPark's rights to subsequently enforce the provision. Any claim under this Marketplace Buyer Agreement must be brought within one (1) year after the cause of action arises ThingPark may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that ThingPark's affiliates, contractors and service providers may exercise all rights of ThingPark under this Agreement, including ThingPark's license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without ThingPark's prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) You give ThingPark written notice of any such assignment at least ten business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement; however, in the event that ThingPark determines that such assignment is to a competitor of ThingPark, ThingPark may terminate this Agreement upon notice to You. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by ThingPark via email, via a posting in the Marketplace Guidelines, or via a message through your my.ThingPark.com account, or (ii) by you via email to legal@ThingPark.com or to such other email or physical addresses as ThingPark may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.
This Marketplace Buyer Agreement constitutes the complete and exclusive agreement between ThingPark and You with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein.
Last Revised: 29 November 2016.