STYLE SCOUT CLIENT AGREEMENT
EFFECTIVE DATE: APRIL 5, 2019
Last updated: April 6, 2019
Kidizen, Inc., a Delaware corporation (“Kidizen”), owns and operates the Kidizen mobile application and related sites, tools and services (collectively, the “Services”), which enable users to buy, sell and discuss used children’s apparel and accessories and perform related activities. Kidizen has established a “Style Scouts” program (the “Program”) pursuant to which certain users of the Services may be approved by the Kidizen to list and sell items on the Services on behalf of others. Scout is an approved “Style Scout” under the Program. By using the Services in any manner, whether or not you create an account with us, you (the “user”, “you” or “your”) agree to these terms (as they may be amended from time to time, the “Terms”), including any additional terms and conditions and policies referenced herein or available by hyperlink. If you do not agree to the Terms, you are not allowed to use the Services. We reserve the right, at our discretion, to change, modify, add or remove portions of the Terms or any such additional terms and conditions or policies at any time, and we will post the Terms (or such additional terms and conditions or policies) as so modified on the Site and the App. Please check these Terms and any such additional terms and conditions or policies referenced herein periodically for changes. Your continued use of the Services following the posting of changes to the Terms or any such additional terms and conditions or policies referenced herein will mean you accept those changes.
Taxes. Client will be responsible for any applicable income, sales, use, value-added, excise, services, gross receipts or other tax which may be associated with the sale of Inventory items hereunder (other than taxes on Scout’s or Kidizen’s net income). Scout will be responsible for any applicable income, sales, use, value-added, excise, services, gross receipts or other tax which may be associated with the commissions payable to Scout hereunder. The parties acknowledge that, except as Kidizen may otherwise determine from time to time in order to comply with applicable law, Kidizen will make not any tax payments to federal, state, or local agencies that may be due based on sale of Inventory items or the payment of commission hereunder. Each party hereto will comply with all applicable tax laws and regulations with respect to the sale of Inventory items and the payment or receipt of commissions, as applicable.
Unsuitable Items. Any Inventory items that Scout reasonably determines are unlikely to sell on or are otherwise unsuitable for listing on the Services in accordance with Section 2 are referred to herein as “Unsuitable Items”. Unless the “Yes” box is checked in the “Return Unsuitable Items to Client?” portion of the table above, and except as the parties may otherwise agree in writing, Scout will, at Scout’s expense (if any), and at such time or times as Scout deems appropriate, donate, on behalf of Client, all Unsuitable Items to Goodwill Industries International, Inc. or another clothing donation center or thrift store of Scout’s choosing or otherwise dispose of Unsuitable Items in such manner as Scout determines appropriate, provided that, if Scout receives any cash or other material consideration for such disposal, such cash or consideration shall be treated as Sale Proceeds under Section 3. Client expressly acknowledges and agrees that, except as provided in the previous sentence, Scout may donate or dispose of Unsuitable Items however Scout deems appropriate, and Client shall have no further right, title or interest in or to such items once they are reasonably determined by Scout to be Unsuitable Items.
Unsold Items. In the event that any Inventory item initially listed by Scout on the Services pursuant to Section 2 remains unsold for a period of 180 days after the initial listing date despite Scout’s reasonable efforts to sell such item on the Services (which efforts may include without limitation reducing the listing price thereof or otherwise relisting the item on the Services), Scout may, in his or her discretion, (i) maintain such item as listed on the Services for such additional period as he or she deems appropriate or (ii) at any time after such 180-day period, elect to treat such item as an Unsuitable Item under Section 5 and donate or dispose of it accordingly.
Title; Lost or Stolen Items. Title to each Inventory item (other than Unsuitable Items) shall remain with Client until such time as such item is sold on the Services. Scout will use reasonable efforts to avoid any damage or theft of Inventory items in his or her possession during the term of this Agreement. So long as Scout complies with the foregoing sentence, Scout shall have no liability for any lost, damaged or stolen Inventory items, provided that any applicable insurance proceeds (covering the loss or theft of applicable Inventory items) shall be paid to Client.
Intellectual Property. Each party acknowledges that the Services, any components thereof, any written or electronic materials relating to the Program, and Kidizen’s name, logo and any other marks, all remain the sole property of Kidizen and its licensors. Any comments, feedback, ideas, reports, suggestions, data or other information submitted by either party hereto to Kidizen in connection with the Program or this Agreement is referred to herein as “Feedback”. By submitting Feedback to Kidizen, the submitting party acknowledges and agrees that, in consideration for Kidizen’s operating the Services and the Program: (i) such Feedback does not contain information that is confidential or proprietary to the submitting party; (ii) Kidizen is not under any obligation of confidentiality to the submitting party, express or implied, with respect to such Feedback; (iii) Kidizen may use or disclose (or choose not to use or disclose) such Feedback for any reasonable purpose relating to the improvement of the Program or the Services; (iv) Kidizen may have something similar to the Feedback already under consideration or in development; and (v) such Feedback is hereby assigned to Kidizen.
Warranties and Representations. Each party hereby represents, warrants and covenants that (i) such party has the authority to enter into this Agreement and to perform all such party’s obligations hereunder; (ii) in performing its obligations hereunder, such party will not violate any law, rule or regulation, or infringe upon the rights of any third party, including, without limitation, contractual rights, intellectual property rights, publicity and privacy rights, and the rights against libel, defamation, and slander; and (iii) such party is not under any pre-existing obligation that is in conflict or in any way inconsistent with the provisions of this Agreement. Scott further represents and warrants that he or she is authorized to participate in the Program as “Style Scout”. Client further represents and warrants that he or she is the rightful owner of all Inventory, free and clear of all liens, claims and encumbrances (other than as contemplated hereby).
Term and Termination. The term of this Agreement shall commence on the Effective Date and continue until the earliest of: (i) the date that all Inventory items have been sold and shipped (or, with respect to Unsuitable Items, donated or otherwise disposed of) in accordance with this Agreement and all applicable Sale Proceeds and commissions have been paid; (ii) the date that Kidizen discontinues the Program; and (iii) the date that Scout is no longer authorized to participate in the Program. In addition, Scout may terminate this Agreement at any time by written notice to Client. Upon any termination hereof, except as the parties may otherwise agree in writing or as otherwise set forth herein, Scout shall promptly (a) complete the packing and shipping process with respect to any Inventory items that have sold but remain unshipped as of the date of termination and (b) de-list from the Services any Inventory items in Scout’s possession that remain unsold as of the date of termination (other than any Unsuitable Items) and return such items to Client. Termination of this Agreement shall not limit either party from pursuing any remedies available under applicable law. Sections 7 through 14 and all other terms and conditions of this Agreement intended by their nature to survive its termination shall survive such termination.
Relationship. The parties are independent contractors. Except for the authority granted to Scout herein, nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.
Limitation of Liability. In no event shall a party be liable to the other party for any indirect, incidental, special, or consequential damages, or damages for loss of profits, revenue, data, or use, incurred, whether in an action in contract or tort, even if the other party or any other person has been advised of the possibility of such damages.
Disclaimer; Indemnification. EACH PARTY EXPRESSLY ACKNOWLEDGES THAT, EXCEPT FOR SUCH ADMINISTRATIVE FUNCTIONS AS KIDIZEN UNDERTAKES IN ACCORDANCE WITH ITS NORMAL BUSINESS PRACTICE IN RELATION TO THE PROGRAM, KIDIZEN IS NOT PARTY TO, HAS NO INVOLVEMENT IN, MAKES NO REPRESENTATIONS OR WARRANTIES AS TO, AND HAS NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY COMMUNICATIONS, TRANSACTIONS, INTERACTIONS, DISPUTES OR ANY RELATIONS WHATSOEVER BETWEEN THE PARTIES HERETO WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY. Without limiting the foregoing, each party expressly agrees that, although a template version of this Agreement may have been provided to one or both of the parties in order to facilitate their participation in the Program, Kidizen shall have no liability whatsoever for providing or proposing such template, and each party understands that such party is free to enter into or not enter into this Agreement, or any version this Agreement, and/or to have this Agreement reviewed by an independent attorney representing such party, in each case he or she deems fit. Each user shall indemnify, defend and hold Kidizen and its affiliates and their respective officers, directors, employees, agents, successors and assigns harmless from any and all claims, demands, damages, costs, and liabilities including reasonable attorneys’ fees, made by any third party relating to or arising out of the transactions contemplated hereby. Kidizen is an express third-party beneficiary of this Section 13 and other applicable portions of this Agreement.
Miscellaneous. This Agreement is governed by and is to be construed in accordance with the law of the state set forth in Scout’s notice address set forth herein, excluding conflicts of laws principles. All notices under this Agreement shall be in writing and shall be deemed given (i) when personally delivered, (ii) on the business day sent (if sent before or during normal business hours) or on the next business day (if sent after normal business hours) when delivered by electronic mail to the applicable email address set forth on the signature page hereto (as it may be updated from time to time by a party in accordance with this Section) or (iii) three days after being sent by prepaid certified or registered U.S. mail to the applicable address set forth herein (as it may be updated from time to time by a party in accordance with this Section). In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of (i) the other party and (ii) Kidizen. This is the parties’ entire agreement relating to its subject matter. The Agreement supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties relating to its subject matter during the term. No change to this Agreement will be binding unless it is in writing and signed by each party.