Marketplace Vendor Agreement

Last modified: September 1, 2021

This Marketplace Vendor Agreement (‚ÄúAgreement‚ÄĚ) contains the terms and conditions that governs your access to the DodoMarket.mu, Website (‚ÄúSite‚ÄĚ) to sell products pursuant to DodoMarket marketplace program and is an agreement between you or the business you represent and Vanguard Sports Lab Ltd (‚Äúthe Company‚ÄĚ). By registering as a Vendor, you (on behalf of yourself or the business you represent) agree to be bound by the terms of this Agreement.

Definitions

For purposes of this Agreement, capitalised terms will have the meanings specified below:

"Affiliate"will mean, with respect to Vanguard Sports Lab Ltd., any entity, whether incorporated or not, that directly or indirectly controls, is under common controlled by, or is under common control by such party or its corporate parent, where ‚Äúcontrol‚ÄĚ (or variations of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.

"Claims(s)" will mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation.

‚ÄúItem File‚Ä̬†means a data feed between Vendor and the Site that includes Vendor Content (as defined below) and other relevant or necessary information enabling Vendor Content to be made available on the Marketplace Program.

"Law" shall mean any law, ordinance, statute, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, or any governmental authority of competent jurisdiction.

"Losses" shall mean any and all damages (including, without limitation, past, future, direct, indirect, economic, noneconomic, consequential, special, exemplary, incidental, and punitive), sanctions, settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys' fees and costs.

‚ÄúMarketing Materials‚Ä̬†shall mean all DodoMarket printed marketing materials, including but not limited stickers, leaflets, flyers and greeting cards provided by the Company to the Vendor to be included in each order fulfilment as per the Company marketing guidelines.

‚ÄúProduct‚Ä̬†shall mean all items and goods for which Vendor receives Customer Purchase Order.

"Vendor Content"¬†shall mean all images, product information and content including without limitation, the product data, (i) provided by Vendor to Company or its Affiliates for use in connection with the Marketplace Program and (ii) otherwise made available by Vendor to customer on the Site (‚ÄúCustomer‚ÄĚ) (e.g. through Vendor's distribution or hosting of such images, content or information).

Agreement to DodoMarket.mu Terms of Service and Privacy Policy

This Agreement is in addition to and supplements DodoMarket.mu Terms of Service and Privacy Policy posted on the Site. By entering into this Agreement, you also agree to abide by DodoMarket.mu Terms of Service and Privacy Policy. The Company may modify its Terms of Service and Privacy Policy from time to time, with or without notice. Your continued use of the Site and the Marketplace Program following Company's posting of such modifications shall be deemed to be your acceptance of any such modifications. If you do not agree to the changes in the Terms and Conditions or Privacy Policy, immediately cease to use the Site. For the avoidance of doubt, modifications to this Agreement are governed by the Waivers and Amendments section herein.

Trademarks and Marketing Materials

Vendor will manufacture and supply Products under the Company Trademarks (defined hereunder) in strict compliance with the specifications for the Products as listed in the Vendor Content provide by Vendor to Company or otherwise agreed between Vendor and the Company (‚ÄúSpecifications‚ÄĚ).

Trademarks. The Company hereby grants to Vendor a limited, non-exclusive, non-assignable, non-transferable, royalty free license and right to use the trademarks, trade names and trade dress of the Company (‚Äúthe Company Trademarks‚ÄĚ) solely in connection with the manufacturing, packaging and labelling of Products for DodoMarket Marketplace. Vendor will use the the Company Trademarks only as authorised by this Agreement and for no other purpose without the Company‚Äôs prior written consent. Vendor recognises and acknowledges that all right, title and interest in and to the the Company Trademarks is vested in the Company and use of the the Company Trademarks on the Product will inure solely to the benefit of the Company. Vendor further agrees never to challenge, contest, or question the validity of the Company‚Äôs ownership of the the Company Trademarks, or any trademark applications or registrations for the the Company Trademarks.

Marketing Materials. All marketing materials, advertising, merchandising and promotional materials bearing the the Company Trademarks will be provided to Vendor by the Company at no cost to the Vendor.

Product Information

Product Information - Vendor Content. Vendor agrees and warrants that any and all Vendor Content: (a) will be truthful, accurate, and not misleading or otherwise deceptive; (b) will not violate the intellectual property rights of any third party such as copyright, patent, trademark, trade secret or other proprietary rights. Vendor agrees that any and all Vendor Content may be publicly displayed by Company as Company sees fit and at no charge to Company, provided that Company shall have no obligation to display Vendor Content. Vendor will only provide Vendor Content for Products that fit into the categories or parameters approved in writing by Company. Vendor may provide Company with Vendor Content for Products in additional categories or parameters only with the prior written consent of Company (which may be given by email). Company shall have no obligation to list, display, or otherwise offer on the Site all Products for which Vendor provides Vendor Content, and listing any such Products is in the Company’s sole discretion.

Purchase/Order Processing, Fulfilment

Orders. Vendor will be the seller of record. Customers purchasing Products through the Site will place orders using the the Company checkout system and the Company will collect all proceeds from such transactions, including delivery costs based on shipment/delivery options. The Customer is the purchaser of record. The Company will electronically transmit to Vendor the order information (e.g. Customer name, order number, greeting card text and other relevant order details) ("Transaction Information") that the Company determines Vendor needs to fulfil each order. The Company will send an automated email message to each Customer confirming receipt of an order. Vendor will provide the Company with Vendor's customer service contact information which the Company may include in such confirmation email and/or on the Site. Delivering/Shipping Product(s) to Customers and providing Customer service will be performed by the Company.

Fulfilment of orders. (a) Once the Company has transmitted an order to Vendor, Vendor will at its own expense, be solely responsible for, and bear all liability for, the fulfilment of the order, including without limitation, producing and packaging of Products. If Vendor cannot fulfils the entire quantity of a purchase order (PO), then the Vendor immediately notify the Company.
(b) Vendor will fulfil only the Product purchased by the Customer and will not include any additional Products, substitute Products, materials or information not purchased by the Customer, other than those DodoMarket Marketing Materials that should be included in all shipments sold by Vendor in line with the DodoMarket marketing policy.

Cancellations, returns and refunds

Cancellations. Vendor will maintain a cancellation rate due to Vendor’s error or fault of 1.0% or less, calculated on a rolling thirty (30) day period. Substitutions do not count towards cancellation rates.

Refunds. Vendor will be responsible for refunds resulting from Product returned to Vendor in line with the return policy (for applicable Products) and for all forms of refund resulting from Vendor’s error or fault (including for Products sufficiently different from their Product description). The Company will whenever possible provide refunds to Customers via the method of payment used by the Customer (most often the Customer’s credit card). Whenever the Company makes a refund to a Customer as described above, the Company in its sole discretion, will obtain a refund of the Vendor Payment received by Vendor for such returned Products either via (i) offset of any amounts payable by the Company to Vendor or (ii) by billing Vendor for such amounts.

Fees and Commissions

During the term of this Agreement Vendor will pay to the Company a Service Fee calculated as percentage on the Vendor‚Äôs Net Sales (as defined below) of Products were generated by the Company in accordance with this Agreement. For purposes of this Agreement, the terms ‚ÄúNet Sales‚ÄĚ shall mean, for any period, the gross amount properly set forth on a purchase order received by Vendor from the customer in connection with such customer‚Äôs purchase of Product, less shipping/delivery fees. The Service Fee rate is individually agreed between the Company and the Vendor during the onboarding process and may vary product to product.

Vendor hereby appoints the Company as its limited payment collection agent for accepting and processing payment from Customer’s on Vendor’s behalf (Payment Agent). Vendor authorises the Company to receive payments on its behalf. Vendor authorises the Company in its role as Payment Agent to issue refunds to Senders at Vendor’s request.

In accepting appointment as Payment Agent, the Company assumes no liability whatsoever for any of Vendor acts or omissions related to these Terms of Service, failure by Vendor to fulfil the Purchase Order in accordance with these Terms, or failure by Customers to make payments owed to you, and you understand that Company’s obligation to pay you is subject to and conditional upon Company’s actual receipt of payment from Customers.

The Company shall deliver such payments to Vendor’s designated bank account in accordance with its instructions on the schedule and net of agreed-upon Service Fee, delivery/shipment fees, and/or other amounts owed by Vendor to the Company (such resulting amount, "Vendor Payment"), in each case as provided in this Agreement. Vendor agrees and acknowledges that: (a) once the Company receives payment from a Customer, Vendor will treat the Customer as if Vendor has itself received the funds, regardless of whether Vendor actually receives the payment from the Company, and (b) its sole recourse for nonpayment by the Company is against the Company, and it will not seek any return, refund or payment directly or indirectly from Customers in the event of nonpayment by the Company the Company reserves the right to offset any overpayments to Vendor against any future Vendor Payments. The Company may modify the schedule of payments from time to time upon prior notice to Vendors.

To the extent the Company agrees to invoice Vendor for any Fees due, Vendor shall pay those Fees set forth in invoices not disputed in good faith within five (five) days of the date of receipt thereof. All such payment obligations are non-cancelable and all amounts paid are non-refundable, except for amounts paid in error that are not actually due under this Agreement.

Withholding of Payment. The Company may withhold the payment of funds to the Vendor or return funds to Customers, if the Vendor is the subject of an investigation, or there is a Claim against the Vendor, for any suspected or alleged wrongful conduct or any violation of this Agreement. The Company will not be liable to the Vendor for any such amounts.

Ownership and Use of Transaction Information

The Company shall own all Transaction Information. Vendor may only use Transaction Information to further a transaction related to this Agreement, in accordance with the terms of this Agreement, the Company's Privacy Policy and all applicable Law. Vendor will not (i) disclose or convey any Transaction Information to any third party (except as necessary for Vendor to perform its obligations under the Agreement); (ii) use any Transaction Information to conduct Customer surveys or for any marketing or promotional purposes; (iii) contact a Customer that has ordered a Product that has not yet been delivered with the intent to collect a payment in connection therewith or to influence such Customer to make an alternative or additional purchase; or (iv) target communications of any kind on the basis of the intended recipient being a Customer.

Taxes

Taxpayer and Seller of Record. Vendor is the taxpayer and seller of record and must comply with all applicable tax Law. Vendor shall be solely liable for any tax liabilities, including without limitation, any associated penalties, fees or interest. All references to "tax" or "taxes" in this Agreement shall mean all taxes and fees, including without limitation, sales, use and surcharge taxes, import or export duties, electronic waste recycling fees, and all other indirect taxes and fees.

Vendor Warranty. Vendor is solely responsible for determining the amount of VAT or other indirect taxes owed as a result of the sale of Products, and is solely responsible for reporting and remitting any such taxes required under applicable Law. Vendor hereby represents and warrants that it will (a) identify all states in which it has an obligation to collect and remit taxes during onboarding, (b) keep such information updated at all times, (c) report and remit all such taxes collected on Vendor’s behalf by the Company, and (d) maintain appropriate accounting records and documentation to verify the remittance of such taxes collected on Vendor’s behalf by the Company. Upon the request of the Company, Vendor will immediately provide the Company with records and documentation in the manner, form and substance as the Company may reasonable request of Vendor's remittance of all taxes collected by the Company on Vendor’s behalf. If Vendor is unable to provide such proof to the Company’s satisfaction, the Company may retain all such tax amounts and/or terminate Vendor's Marketplace account. Vendor acknowledges and agrees that the Company has no responsibility to collect, report or remit taxes in connection with Vendor’s sales. Vendor shall cooperate with the Company regarding any requests for information, audit or similar request by any taxing authority concerning taxes collected and remitted resulting from the sale of Products on the Site.

Information Security

Vendor will use appropriate internal information security practices to prevent the compromise of its information systems, computer networks and data files by unauthorised users, viruses or malicious computer programs which could in turn be transmitted to the Company or compromise the security of the Company Confidential Information (as defined in the Section titled ‚ÄúConfidential Information‚ÄĚ below), including without limitation, the Transaction Information. Vendor shall promptly notify the Company of any breach and take all necessary actions to remediate the breach. Vendor shall be responsible for any costs, damages or legal notification procedures resulting from any breach of this Section.

Confidential Information

Definition.¬†The term "Confidential Information" means all information communicated by one party (‚ÄúDisclosing Party‚ÄĚ) to the other party (‚ÄúReceiving Party‚ÄĚ) that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure, including, without limitation (a) the terms of this Agreement, (b) existing or contemplated products, services, designs, processes and technical specifications, and (c) information relating to business plans, sales or marketing methods and information accessed via the Company‚Äôs APIs. Vendor shall also treat all Transaction Information and tax codes as Confidential Information.

Obligations. The Receiving Party may receive Confidential Information from the Disclosing Party during the Term, and such Confidential Information shall be used only to perform its obligations under this Agreement. The Receiving Party shall treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care.

Exceptions. The obligations of either party under this Section will not apply to information that the Receiving Party can demonstrate (a) is known by the Receiving Party prior to the date of the disclosure by the Disclosing Party without a restriction on disclosure or use; (b) becomes publicly known though no act or fault of the Receiving Party; provided, however, Transaction Information shall remain subject to confidentiality obligations regardless of its availability to the public; (c) was received from a third party without restriction on disclosure or use; or (d) is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party.

Disclosure by Law. In the event the Receiving Party is required by Law or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (a) give the Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (b) limit the disclosure to the minimum amount that is legally required to be disclosed.

Return or destruction. Upon the Disclosing Party's written request, the Receiving Party shall return or certify the destruction of all Confidential Information, and the obligation of confidentiality shall continue for three (3) years from the expiration or termination of this Agreement; provided however, the Receiving Party shall continue to keep confidential (i) any Transaction Information, and (ii) the terms of this Agreement. Vendor agrees that the Company may share Vendor's Confidential Information with its Affiliates for internal use only.

Representations and Warranties

Vendor hereby represents and warrants to the Company the following:

Authority. Vendor is a corporation duly organized, validly existing and in good standing under the Laws of the state where Vendor is incorporated, and Vendor has full power and authority to execute Agreement and to perform its obligations hereunder without any further ratification or approval. Vendor has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances.

No Conflicts. Neither the execution of this Agreement, nor the consummation of the transaction contemplated hereby, will violate or conflict with any obligation, contract or license which could reasonably be expected to interfere with the consummation of the transaction contemplated hereby.

Term, Termination and Suspension

Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect as long as the Vendor continues using the Site to list and sell Products, unless an agreed upon term is included in DodoMarket Marketplace Vendor Agreement.

Termination. This Agreement may be terminated by either Party at any time for any reason by giving thirty (30) calendar days written notice of such termination to another Party.

Termination for Breach. Either party may terminate this Agreement without prior notice or a cure period for breaches that are incapable of cure (including, but not limited to, a party’s involvement in money laundering or terrorist activity). Upon termination of this Agreement for breach by Vendor, any fees due to the Company at the time of termination shall immediately come due and; if for breach of the Company, any amounts prepaid by Vendor but unused up to the date of termination shall be refunded to Vendor. Termination under this Section does not limit either party from pursuing any other remedies available to such party, including but not limited to injunctive relief.

Termination in the Event of Insolvency or Bankruptcy. Either party may terminate this Agreement upon written notice to the other party in the event (a) the other party files a petition for bankruptcy or is adjudicated bankrupt; (b) a petition in bankruptcy is filed against the other party and such petition is not dismissed within ninety (90) days of filing; (c) the other party becomes or is declared insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar Law; (d) the other party ceases to do business in the normal course; or (e) a receiver is appointed for the other party or its business.

Post-Termination Obligations. Vendor will continue to have obligations under this Agreement after termination of the Agreement or during a suspension of Vendor’s listing of Products under the foregoing paragraph, including without limitation, the obligation to (i) provide customer service to Customers who purchased Products on the Site, (ii) pay any invoices delivered by the Company in connection with this Agreement, (iii) notify the Company and Customers of any recalls of its Products, (iv) remit any taxes collected to the proper jurisdiction(s), (v) fulfill any outstanding orders, and (vi) immediately notify the Company of any security breach that allows a third party to view or access or otherwise compromise any Transaction Information.

Survival. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement (including, without limitation, representations, warranties, indemnification, payment obligations, remedies, the Company's rights to use Vendor's suggestions and feedback, limitations of liability, choice of law, jurisdiction, and venue) shall survive its termination.

Relationship of the Parties

The Parties hereto expressly understand and agree that the other is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. This Agreement does not make either party the employee, agent or legal representative of the other.

Assignment

Neither Party may without written approval of the other assign this Agreement or transfer its interest or any part thereof under this Agreement to any third party except that a Party may assign its rights or obligations to a third party in connection with the merger, reorganisation or acquisition of stock or assets affecting all or substantially all of the properties or assets of the assigning Party.

Notices

Any notice or other correspondence required to be serviced or exchanged under this agreement shall be so served or exchanged, as the case may be, at the following address:

FOR THE VENDOR: The address provided by Vendor in the onboarding process.

FOR THE COMPANY:  office@dodomarket.mu; Mauritius, 4, Diego Garcia, Port Louis, Vanguard Sports Lab Ltd.

Any notice which may be given by a Party under this Agreement shall be deemed to have been duly delivered if delivered first class post or electronic mail to the address of the other Party as specified in this Agreement or any other address notified in writing to the other Party.

Complete Agreement

This Agreement is the complete and exclusive agreement by and among the Parties with respect to the subject matter hereof, superseding any prior agreements and communications regarding such subject matter. To the extent that the terms of this Agreement conflict with DodoMarket.mu Terms of Service, Acceptable Use Policy and/or Privacy Policy, this Agreement shall prevail.

Governing Law and Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the Republic of Mauritius.