GEMCROWD VENDOR AGREEMENT PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
GemCrowd.com, Inc. (“GemCrowd”), a Nevada Corporation having offices at 650 South Hill Street, Suite 917, Los Angeles, CA 90014, makes the GemCrowd platform (the “Platform”) available to you (“Vendor”) on the terms and conditions set forth in this Seller Agreement (this “Agreement”). This Agreement is a legally binding contract between Vendor and GemCrowd. Vendor must agree to this Agreement before Vendor may use or have access to the Platform. If Vendor does not agree to all of the terms and conditions set forth in this Agreement, Vendor may not use or have access to the Platform.
BY AGREEING TO THIS AGREEMENT (INCLUDING BY A CLICK-THROUGH OR OTHER AGREEMENT), VENDOR EXPRESSLY ACKNOWLEDGES THAT VENDOR HAS READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREES TO THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS. Also, by agreeing to this Agreement (including by a click-through or other agreement), Vendor is waiving, to the extent permitted under applicable law, any rights or legal requirements that require an original (non-electronic) signature or the delivery or retention of non-electronic records in order for a contract to be legally binding. If Vendor utilizes the Platform, Vendor shall be deemed to have accepted this Agreement and all of its terms and conditions. If an individual is using the Platform on behalf of such individual’s employer or another entity that is the Vendor under this Agreement, such individual represents and warrants that they have full legal authority to bind the Vendor to this Agreement. If an individual does not have such authority, then such individual may not use the Platform on behalf of Vendor and they must discontinue all use of the Platform immediately. This Agreement is effective as of the date that Vendor agrees to this Agreement (the “Effective Date”).
1. Vendor Responsibilities.
1.2 Accounts. Vendor acknowledges that maintaining account security is very important. Vendor is solely responsible for maintaining the confidentiality of its account password and for all activities that are conducted via its account. Vendor agrees to notify GemCrowd immediately if it becomes aware of any unauthorized use of its password or of its account. Vendor’s account may not be transferred at any time under any circumstances. Vendor may not share its account with, or disclose its password to, any other party. For the avoidance of doubt, GemCrowd may immediately terminate its relationship with Vendor, or may suspend Vendor’s account immediately, if it determines Vendor is using the Platform contrary to any term of this Agreement.
1.3 Marketplace Requirements. Vendor agrees that it shall: (a) not post or sell any item that is restricted or prohibited by a federal, state or local law in any applicable jurisdiction; (b) sell all products as listed and as characterized in the descriptions, images, and specifications shown on Vendor’s product detail page, each of which shall be true, lawful, and accurate and not false, misleading, or deceptive; (c) ensure all products are authentic and are not counterfeit, replica, knock-off, or unauthorized products nor in violation of any third party’s intellectual property rights; (d) have due authorization to sell, distribute, and/or export the products it offers for sale on the Platform and remain free from any trade restrictions, sanctions or other legal restrictions enacted by any governmental authority; (e) have good and valid title to the products offered and sold on the Platform; (f) employ quality control and inspection procedures of the products offered on the Platform; (g) complete all aspects of the order, purchase, and sale of its products through the Platform; (h) include important product details in their listing titles and descriptions in accordance with the FTC’s Jewelry Guides, in order to help ensure that buyers have a clear understanding of what they’re buying before making a purchase; (i) only post trade shows in which it is intending to participate on any calendar published on the Platform, and refrain from posting any private events on such calendar; (j) not take any acts that would circumvent the language or intent of this Agreement, including without limitation by initiating contact or attempting to do business with any User outside the Platform; and (k) otherwise be in compliance with specifications published by GemCrowd from time to time.
1.4 Insurance. Vendor shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers, that includes, but is not limited to, commercial general liability insurance and errors and omissions insurance, which policies shall include coverage insuring the activities of Vendor under this Agreement and shall have limits sufficient to insure all such activities.
2. Fees and Obligations.
2.1 Vendor Fees; Taxes. Vendor will be charged Service Package Fees and Final Value Fees, as defined below, in connection with Vendor’s use of the Services (the “Fees”). Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. VENDOR ACKNOWLEDGES AND AGREES THAT ANY APPLICABLE FEES AND OTHER CHARGES, INCLUDING WITHOUT LIMITATION ANY SERVICE PACKAGE FEES, ARE NON-REFUNDABLE IN WHOLE OR IN PART EXCEPT AS EXPRESSLY SET FORTH HEREIN. VENDOR IS FULLY LIABLE FOR ALL CHARGES IN RESPECT OF ITS ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES. VENDOR AGREES TO PAY ALL APPLICABLE FEES AND TAXES INCURRED BY VENDOR DUE TO ITS USE OF THE PLATFORM. VENDOR ACKNOWLEDGES AND AGREES THAT GEMCROWD WILL NOT WITHHOLD ANY TAXES OR MAKE ANY TAX PAYMENTS ON ITS BEHALF WITH RESPECT TO ANY PAYMENTS MADE TO IT PURSUANT TO THIS AGREEMENT, AND VENDOR HEREBY ASSUMES COMPLETE RESPONSIBILITY FOR THE PAYMENT OF ANY AND ALL SUCH TAXES. Notwithstanding the foregoing, GemCrowd may withhold from any amounts payable under this Agreement such federal, state, local or foreign taxes as it may reasonably determine it should withhold pursuant to any applicable law or regulation.
(a) Service Package Fee. Where applicable, Vendor shall pay to GemCrowd a monthly or annual service package fee in connection with Vendor’s use of the Platform, in accordance with the Tier selected by Vendor and the pricing designated by GemCrowd from time to time (the “Service Package Fee”). Vendor agrees and acknowledges that its Service Package Fee shall be comprised of an initial and recurring payment charge at the then-current subscription rate. Vendor accepts responsibility for all recurring charges of its Service Package Fee prior to cancellation, including where applicable any charges processed by GemCrowd after the expiration date of its payment card.
(b) Final Value Fee. Where applicable, GemCrowd shall charge to Vendor a fee equal to a percentage of the total value of each transaction that is initiated through the Platform (each, an “Order”), as designated by GemCrowd from time to time (the “Final Value Fee”). No Final Value Fee shall be assessed with respect to any Order (or portion of the value thereof) which is subject to any refund, exchange, or cancellation.
2.2 Payment Processing. GemCrowd reserves the right to select and/or change its payment processing vendors at any time in its sole discretion. All amounts shall be expressed and paid in United States Dollars.
(a) Stripe. If an order is processed through using Stripe as the payment processor, all Final Value Fees will be automatically deducted from the amount ultimately delivered to Vendor through the Platform in respect of any Order. In the event payment processing services are provided by Stripe, they shall be subject to the Stripe Connected Account Agreement (https://stripe.com/us/connect-account/legal), which includes the Stripe Services Agreement (https://stripe.com/us/legal) (collectively, the “Stripe Terms”). By using the Platform to receive payment via Stripe, Vendor agrees to be bound by the Stripe Terms, which may be modified from time to time. As a condition of GemCrowd enabling payment processing services through Stripe, Vendor authorizes GemCrowd to obtain all necessary access and perform all necessary activity on Vendor’s Stripe Connected Account to facilitate Vendor’s relationship with GemCrowd and use of the Platform. Vendor further agrees to provide accurate and complete information about its and authorizes GemCrowd to share it and transaction information with Stripe for the purposes of facilitating of the payment processing services provided by Stripe.
(b) PayPal. If an order is processed using PayPal and Hyperwallet as the payment processor, payment in respect of an Order will be delivered to Vendor in full, less applicable processing fees. On a bimonthly basis, GemCrowd will invoice and bill Vendor for the aggregate Final Value Fees incurred in respect of Orders completed during the immediately preceding calendar weeks.
2.3 Fulfillment. Once an Order has been placed by a User, as between Vendor and GemCrowd, Vendor will be solely responsible for, and bear all liability for, the fulfillment of the order, including without limitation, packaging and shipping of the product, payment of any applicable freight forwarder or customs broker service charges, and payment of any applicable import or export duties or taxes. Vendor agrees that legal ownership and all risk of loss of the product remains with Vendor until the product is received by the purchasing User. If Vendor cannot fulfill the entire Order, Vendor will notify the purchasing User and will allow the purchasing User to (a) cancel the Order, (b) accept the partially fulfilled Order, or (c) accept the Order with substituted goods. 2.4 Shipping. Vendor is responsible for properly specifying shipping options for all its products listed on the Platform and will ship Orders in accordance with the shipping option selected and paid for by the purchasing User. Vendor shall provide notice of shipment and a tracking number to Users and to GemCrowd through Platform, and shall do so only upon actual shipment of the product.
2.5 Customer Data. GemCrowd will provide Vendor with the contact information of its Users (“Customer Data”) solely for the purpose of fulfillment and shipping. Subject to the terms of this Agreement, Vendor may use the Customer Data solely to the extent necessary to deliver Orders placed through the Platform. Vendor will not use Customer Data for its own marketing or targeting purposes or for any purpose other than to ship Orders as expressly permitted under this agreement. Vendor will ensure that Vendor’s use of Customer Data is at all times compliant with all applicable laws, rules, regulations and data privacy requirements. Vendor will delete Customer Data within a reasonable period of time after fulfillment of the Order. 2.6 Returns; Refunds. Vendor shall be responsible for processing of all Order returns and refunds. Vendor agrees to comply with GemCrowd’s Standard Return Policy, as the same may be modified by GemCrowd from time to time in its sole discretion, provided that Vendor may offer an alternative return policy if such policy is approved in writing by GemCrowd, which approval may be granted or withheld in GemCrowd’s sole discretion. In the event GemCrowd approves an alternative return policy for Vendor, Vendor must display such policy on the Platform, including whether it will accept returns for (ⅰ) buyer’s remorse, (ⅱ) defective goods that are not in conformance with the warranties, specifications, descriptions or images uploaded by Vendor, or (ⅲ) products that have been damaged during shipping. In the event of a return or other User request in accordance with the applicable return policy which results in a refund, all amounts payable hereunder, including without limitation any Fees or amount payable to GemCrowd, shall be reduced by and proportionately to the amount refunded. For the avoidance of doubt, if Vendor has received payment in respect of an Order, Vendor shall be solely responsible for the issuance of any refund in respect of that Order. 2.7 Fraud. GemCrowd’s policies, performance standards, and integrated payment processors are designed to protect Vendors and make GemCrowd a safe place to conduct business. GemCrowd monitors activities that violate its rules and provides Vendors tools to report them, but ultimately, fraud detection is the responsibility of Vendor and not GemCrowd. Vendor agrees to (a) exercise due caution before it ships any Order, (b) review its Orders carefully for any indication of fraud, and (c) check to see if its transaction is eligible for protection by its payment processor. 2.8 Set-Off. GemCrowd shall have the right to withhold or otherwise recover by set-off, against any amounts payable to Vendor under this Agreement, any amounts owed to GemCrowd by Vendor under this Agreement or otherwise, including without limitation in respect of any liabilities incurred by GemCrowd due to the return or refund of an Order placed with Vendor or any indemnifiable Losses (as defined below) which GemCrowd may suffer, sustain, or become subject to in connection with this Agreement. 3. License. 3.1 License Grant. Subject to the terms and conditions of this Agreement, GemCrowd hereby grants to Vendor a limited, non-exclusive, non-sublicensable, non-assignable license to use the Platform, solely in accordance with this Agreement, to operate a business on the Platform in accordance with Section 1. 3.2 Updates. Vendor acknowledges and agrees that GemCrowd may update the Platform from time to time with or without notifying Vendor and may add or remove features or functions to the Platform at any time in its sole discretion. Vendor acknowledges and agrees that GemCrowd has no obligation to make the Platform available or to continue to support the Platform in any way. Vendor acknowledges that access to the Platform may not be continuous and features may change during Vendor’s use of the Platform. 3.3 Restrictions and Conditions of Use. In consideration of the license granted hereunder: (a) Vendor agrees not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the Platform, other than as expressly permitted hereunder. GemCrowd reserves the right to add or remove information, content or services from the Site at any time at its sole discretion. (b) (b) Vendor agrees not to access, or attempt to access, the Platform through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers). (c) Vendor agrees that it shall not, in connection with its use of the Platform, violate any applicable law, ordinance, rule, regulation or treaty, or otherwise use the Platform for any prohibited, abnormal or unusual activity as determined by GemCrowd in its sole discretion. Without limiting the foregoing, Vendor agrees that it shall not make available through the Platform any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party. (d) Vendor agrees that it shall not (i) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Platform or (ii) make any false, misleading or deceptive statement or representation regarding GemCrowd or the Platform. (e) Vendor agrees that it shall not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Platform (or any servers, systems or networks connected to the Platform) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Platform or any other person’s use of the Platform (or any servers, systems or networks connected to the Platform); (ii) attempt to gain unauthorized access to the Site, the Platform, accounts registered to other users, or any servers, systems or networks connected to the Platform, or any information stored therein or thereby; (iii) use the Platform for any commercial purpose unless consistent with this Agreement and the intended use of the Platform; (iv) use the Platform to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; (iv) use the Platform to perform any unsolicited commercial communication not permitted by applicable law; or (v) use the Platform to engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people, (B) is harmful to children in any manner, or (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity. 4. Confidentiality. All non-public, confidential or proprietary information of GemCrowd (“Confidential Information”), including, but not limited to, designs, plans, documents, data, business operations, business and marketing plans, pricing, suppliers, clients, customers, employees, investors or business partners disclosed by GemCrowd to Vendor, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for Vendor’s use in performing this Agreement and may not be disclosed or copied unless authorized by GemCrowd in writing. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Vendor’s breach of this Agreement; (b) is obtained by Vendor on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) Vendor establishes by documentary evidence was in Vendor’s possession prior to GemCrowd’s disclosure hereunder; or (d) was or is independently developed by Vendor without using any Confidential Information. Upon GemCrowd’s request, Vendor shall promptly return all documents and other materials received from GemCrowd. GemCrowd shall be entitled to injunctive relief for any violation of this Section 4. 5. Data Protection. Vendor acknowledges and agrees that it may receive or have access to personal or sensitive information of Users, including without limitation through the Platform or directly from Users in connection with Vendor’s use of the GemCrowd Point of Sale system (“User Data”), and agrees and covenants that it shall (a) keep and maintain all User Data in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure; (b) not collect, receive, access or use User Data in violation of applicable law; (c) use and disclose User Data solely and exclusively for the purposes for which the User Data, or access to it, is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available User Data for its own purposes or for the benefit of anyone other than the User, in each case, without such User’s prior written consent; and (d) not, directly or indirectly, disclose User Data to any person other than its authorized agents or employees without such User’s prior written consent. 6. Term, Termination, and Survival. This Agreement shall commence as of the Effective Date and shall continue until terminated pursuant to this Section 6. Either party may, in its sole discretion, terminate this Agreement, in whole or in part, at any time without cause, and without liability except for required payment for products sold or services rendered. Upon expiration or termination of this Agreement for any reason, Vendor shall promptly and permanently erase or destroy all of GemCrowd’s Confidential Information in its possession. In no event will Vendor be entitled to a refund of any prepaid Service Package Fees. Vendor further acknowledges and agrees that, in the event of expiration or termination of this Agreement for any reason, (x) Vendor shall satisfy any pending Orders made prior to the date of termination or otherwise take commercially reasonable efforts to cancel any pending Order, in either case as instructed by GemCrowd, (y) Vendor shall be responsible for all amounts due and owing or to be refunded to any User which Vendor has previously collected or otherwise received, and shall indemnify, defend, and hold harmless the Indemnified Parties (as defined below) with respect to such amounts, and (z) GemCrowd may immediately remove all of Vendor’s listings and other inventory from the Platform. The rights and obligations of the parties set forth in Sections 3.3, 4, 5, 6, 7, 10, 11, and 12, and any right or obligation of the parties 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. 7. Indemnification. Vendor shall indemnify, defend, and hold harmless GemCrowd and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, the “Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance vendors, incurred by the Indemnified Parties (collectively, “Losses”), relating to any claim arising out of or occurring in connection with Vendor’s negligence or willful misconduct with respect to the Platform or Vendor’s breach of this Agreement. Vendor shall not enter into any settlement without GemCrowd’s or any Indemnified Party’s prior written consent. 8. Compliance with Laws. Vendor is in compliance with and shall comply with all applicable laws, regulations, and ordinances, including without limitation the FTC’s Jewelry Guides. Vendor has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement, including without limitation any permits required by the U.S. Fish and Wildlife Service. 9. Submitted Content. 9.1 GemCrowd is not the source of, does not verify or endorse, and takes no responsibility for any materials submitted or made available through the Platform via any function which allows a User or Vendor to post content, including without limitation through any communication tool or messaging feature GemCrowd may make available on the Platform to facilitate communication between Users and Vendors (collectively, “Submitted Content”). Submitted Content is entirely the responsibility of the person from whom such content originated. Submitted Content may be protected by intellectual property rights owned by third parties, and Vendor is responsible for ensuring that it does not submit material that (a) is protected by copyright, contains trade secrets or otherwise is subject to third party proprietary rights, including privacy and publicity rights, unless Vendor is the owner of such rights or have permission from the rightful owner; (b) is false or a misrepresentation; (c) is offensive, unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. GemCrowd may in its sole discretion block, prevent delivery of or otherwise remove Submitted Content as part of its effort to protect the Platform or its Users and Vendors. 9.2 GemCrowd does not claim ownership of any of Vendor’s Submitted Content. With respect to all of Vendor’s Submitted Content, Vendor grants GemCrowd a perpetual, irrevocable, non-terminable, transferable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Platform and GemCrowd’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Platform (and derivative works thereof) in any and all media formats and through any and all media channels. Vendor also hereby grants each User a non-exclusive license to access its Submitted Content through the Platform while the Submitted Content is made available through the Platform. Vendor may take down any of its Submitted Content at any time; however, Vendor acknowledges and agrees that GemCrowd may still have access to such Submitted Content and that the above license granted by Vendor to GemCrowd will remain in effect despite any removal of Submitted Content from the Platform. Vendor hereby represents, warrants and covenants that its Submitted Content does not include anything with respect to which it does not have the full right to grant the license specified in this Section 9.2. 9.3 Vendor acknowledges and agrees that: (a) Vendor is solely responsible for, and GemCrowd has no responsibility to Vendor or any third party for, any Submitted Content that Vendor submits, posts or publishes on or through the Platform and (b) GemCrowd is not responsible for any Submitted Content provided by third parties that Vendor may have access to through its use of the Platform and all Submitted Content is the responsibility of the person from whom such Submitted Content originated. Vendor acknowledges and agrees that GemCrowd has no control over and is not responsible for the use of Submitted Content by its Users or Vendors. GemCrowd does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content. 9.4 Vendor acknowledges that GemCrowd has the right to pre-screen its Submitted Content, but has no obligation to do so. At GemCrowd’s sole discretion, any Submitted Content may be included in the Platform in whole or in part in modified form. In addition, GemCrowd and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Submitted Content that is available via the Platform that violates this Agreement or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property. Vendor acknowledges that any Submitted Content posted through any communication tool or messaging feature GemCrowd may make available on the Platform may be monitored by GemCrowd from time to time. 9.5 Vendor acknowledges that its Submitted Content is its sole responsibility, and that under no circumstances will GemCrowd be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Platform. 10. Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE PLATFORM IS PROVIDED “AS-IS” AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. GEMCROWD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING ACCURACY, QUALITY, CORRECTNESS, COMPLETENESS OR COMPREHENSIVENESS. GEMCROWD HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. GEMCROWD HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND OF NON-INFRINGEMENT, CONCERNING THE PLATFORM. GEMCROWD DOES NOT WARRANT THAT THE PLATFORM WILL MEET ALL OF VENDOR’S BUSINESS REQUIREMENTS. 11. Limitation of Liability. 11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GEMCROWD HAVE ANY LIABILITY TO VENDOR OR TO ANY OTHER PERSON OR ENTITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, VENDOR’S USE OR, OR INABILITY TO USE, THE PLATFORM, UNDER ANY CIRCUMSTANCE, CAUSE OF ACTION OR THEORY OF LIABILITY, OR DUE TO ANY EVENT WHATSOEVER, FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OPPORTUNITY OR PROFIT, LOSS OF USE, LOSS OF GOODWILL OR BUSINESS STOPPAGE, EVEN IF GEMCROWD KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. 11.2 WITHOUT LIMITING THE FOREGOING, EXCEPT FOR DAMAGES ARISING OUT OF GEMCROWD’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE TOTAL LIABILITY OF GEMCROWD FOR ANY AND ALL CLAIMS AGAINST GEMCROWD UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS RECEIVED BY GEMCROWD IN CONNECTION WITH VENDOR’S USE OF THE PLATFORM PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT AND HAS BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. 12. Miscellaneous. 12.1 Entire Agreement. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. 12.2 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated:(a) by personal delivery, when actually delivered; (b) by overnight courier, upon written verification of receipt; or (c) by certified or registered mail, return receipt requested, upon verification of receipt. Notices may be delivered for convenience by facsimile transmission or by electronic mail, but such delivery shall not constitute notice hereunder. 12.3 Severability. If a court of law holds any provision of this Agreement to be illegal, invalid or unenforceable, (a) that provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and (b) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. 12.4 Independent Contractor Relationship. GemCrowd’s and Vendor’s relationship is that of an independent contractor, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship. Neither party shall be, nor represent itself as being, an agent of the other party, and shall not be, nor represent itself as being, authorized to bind the other party. 12.5 Amendments. This Agreement may only be amended or modified in a writing signed by an authorized representative of GemCrowd or published by GemCrowd on the Platform. 12.6 Waiver. Failure of either party hereto to enforce, at any time, any term of this Agreement shall not be a waiver of that party’s right thereafter to enforce each and every term of this Agreement. 12.7 Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns. 12.8 Governing Law. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of California, without giving effect to the conflict of laws provisions thereof. 12.9 Arbitration. The parties agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles County, California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on any award made in such arbitration may be entered in any court having jurisdiction. Notwithstanding anything to the contrary contained herein, each party acknowledges that any breach of the confidentiality provisions and other negative covenants of this Agreement may cause the non-breaching party irreparable harm for which there may be no adequate remedy at law. In such case, each party agrees that the non-breaching party shall be entitled, notwithstanding the provisions of this Section 12.9, to obtain equitable relief by injunction or otherwise, in any court of competent jurisdiction, without the obligation of proving damages or posting a bond or surety. Vendor and GemCrowd agree that any arbitration shall be limited to the dispute between Vendor and GemCrowd individually. VENDOR AND GEMCROWD AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES, (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL, AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION. 12.10 Attorneys’ Fees. Should either party hereto initiate a legal or administrative action or proceeding (an “Action”) to enforce any of the terms or conditions of this Agreement, the prevailing party shall be entitled to recover from the losing party all reasonable costs of the Action, including without limitation attorneys’ fees and costs. 12.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. 12.12 Force Majeure. With the exception of payment obligations contained herein, neither party shall be considered in default in performance of any obligations hereunder if performance of such obligations is prevented or delayed by acts of God or government, acts of terrorism, failure or delay of transportation, or by any other similar cause or causes beyond its reasonable control (each, a “Force Majeure Event”).Vendor shall give GemCrowd prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. 12.13 Representation by Counsel. Vendor represents that it has been represented by or had the opportunity to be represented by legal counsel of its own choosing, and that it has had the full right and opportunity to consult with its attorney(s), that to the extent, if any, that it desired, it availed itself of this right and opportunity, that it or its authorized officers (as the case may be) have carefully read and fully understand this Agreement in its entirety and have had this Agreement fully explained to it by its counsel, that it is fully aware of the contents thereof and its meaning, intent and legal effect, and that it or its authorized officer (as the case may be) is competent to enter into this Agreement and has so entered into this Agreement free from coercion, duress or undue influence.