This Marketplace Seller Agreement is between FreshFind Inc., a Canadian corporation (“FreshFind") and you (the “Seller”). 

FreshFind operates the freshfind.ca e-commerce website. FreshFind offers unrelated sellers the opportunity to list merchandise for sale directly to Customers on its website (“Marketplace”). 

FreshFind wants to offer the Seller the opportunity to sell goods or services through its Marketplace. 

The Seller wants to sell goods or services to Customers using the Marketplace. 

The parties therefore agree as follows: 

Article 1.Statements & Recommendation 

1.1 Seller Statements. The Seller states that: (a) the Seller has authorized the individual executing this agreement or registering the Seller for access to a Marketplace to bind the Seller, (b) the Seller is authorized to enter into and perform its obligations under this agreement, (c) the Seller believes that its performance under this agreement will not violate any other agreement, and (d) the Seller is commercially sophisticated. 

1.2 FreshFind Statements. FreshFind states that: (a) it has the authority to enter into and perform its obligations under this agreement, and (b) it believes that its performance under this agreement will not violate any other agreement. 

1.3 FreshFind Recommendation. FreshFind hereby recommends that the Seller obtain counsel of its own choosing in reviewing this agreement and deciding whether to enter into this agreement. 

Article 2. Registration & Access To Marketplaces 

2.1 Registration for and Use of the Marketplace. The Seller may register to sell on the Marketplace. If the Seller registers on the Marketplace, the Seller will be bound by the terms of this agreement. FreshFind may accept or reject the Seller’s registration for the Marketplace. 

2.2 Amendment of this Agreement. FreshFind may modify the terms of this agreement at any time by posting amendments to the Seller Information Page and/or emailing a notice to the Seller at the email address the Seller provided in the FreshFind Portal. If the Seller registers on the Marketplace or continues to use the Marketplace, the Seller will be bound by the then current terms of this agreement. 

2.3 FreshFind Policies. FreshFind may publish or amend policies governing the Seller’s access to or use of the Marketplace (“Policies”). If the Seller registers on the Marketplace or continues to offer products for sale on the Marketplace, the Seller will be bound by the Marketplace’s then current Policies. FreshFind will post any Policies or amendments to Policies on the Seller Information Page. 

2.4 Marketplace Design and Access. If FreshFind accepts the Seller’s registration for the Marketplace, FreshFind will provide the Seller access to the Marketplace as a platform for the Seller to post offers for sale to Product Listings and facilitate the sale of the Seller’s Products to Customers. FreshFind may determine or change any aspect of the Marketplace without notice to the Seller. FreshFind may stop providing the Seller access to a Marketplace without notice to the Seller. 

2.5 Permits and Licenses. The Seller shall obtain all permits and licenses required to operate its business in accordance with Applicable Law at its own expense. The Seller shall pay all fees or assessments which may be due for selling or offering for sale its Products on the Marketplace. 

Article 3. Seller Content & Product Listings 

3.1 FreshFind Is Not the Seller Of Record. Sales of Products on the Marketplace are between the Seller and the Seller’s Customers; FreshFind is not the seller and is not a party to such transactions. The Seller’s listing of Products on the Marketplace does not imply that FreshFind endorses or is affiliated with the Seller or the Seller’s Products. 

3.2 Seller Content. The Seller shall ensure that all information and data it provides to FreshFind is accurate, not misleading, and complies with Applicable Law. The Seller shall ensure that all electronic information and data it transmits to FreshFind or a Customer does not contain any harmful code or other feature designed to obtain unauthorized access to or information from or damage or degrade in any manner any computer system, application, or code. 

3.3 Product Listings.

a. The Seller shall create Product Listings or offers for sale posted to Product Listings using the FreshFind Portal for all Products it intends to sell on the Marketplace. 

b. If it creates Product Listings, the Seller shall create Product Listings that comply with Applicable Law, the Policies, and any specifications posted in the FreshFind Portal, and that are accurate and appropriate for the Marketplace. 

c. The Seller shall ensure that FreshFind’s use of the Seller’s Product Listings will not (1) violate any intellectual property rights of non-parties; (b) contain defamatory or discriminatory content; (c) constitute an invasion of a party’s rights of privacy or publicity; and/or (d) reflect unfavorably on FreshFind, the Websites and/or other Sellers on the Websites; 

d. The Seller shall not create Product Listings that: (1) offer products that are inauthentic, counterfeit, replicas or knock-off goods; (2) offer any Restricted Products; (3) offer Products the Seller does not currently have available; (4) promote or engage in any deceptive trade practice (including spoofing, slamming, cramming, phishing, or attempting to scam or defraud a FreshFind Customer into surrendering private and/or personal information); (5) contain nudity or pornographic, obscene, or offensive content; or (6) use any FreshFind trademarks or imply that FreshFind endorses or approves the Product Listing. 

e. FreshFind may modify, reject, remove, or censor any Product Listing for any reason, and may combine two or more Product Listings or elements of two or more Product Listings. If the Seller believes a modified Product Listing would violate section 3.3.b, 3.3.c, or 3.3.d, the Seller shall promptly notify FreshFind in the manner set forth in the Policies. If the Seller posts offers for sale against a Product Listing, it will be deemed to have accepted any modifications made to that Product Listing. 

3.4 Product Listing Maintenance. The Seller is responsible for its own Product Listings, including updating its Product Listings to ensure that they are accurate and comply with this agreement. 

3.5 Product Pricing.

a. Seller Established. The Seller shall establish prices for its Products in compliance with this agreement. The Seller will enter pricing using the FreshFind Portal, unless FreshFind approves another method in writing. 

b. Pricing Parity. The Seller shall maintain Parity between the Products it offers on the Marketplace and identical Products offered through the Seller’s other sales distribution channels. 

c. Seller Pricing Errors. If the Seller provides incorrect pricing information in a Product Listing (a “Seller Pricing Error”), FreshFind may, at the Seller’s expense, take any commercially reasonable action necessary to avoid or repair harm to FreshFind due to the Seller Pricing Error, including requiring the Seller to honor all Product purchases at the erroneous price and compensating Customers for any inconvenience caused by a Seller Pricing Error. The Seller shall reimburse FreshFind for all losses, expenses, or liabilities FreshFind incurs as a result of Seller Pricing Errors. 

Article 4 Product Sale, Delivery, Return, and Customer Service

4.1 Customer Orders.

a. Processing Customer Orders. FreshFind shall process Customer Orders on behalf of the Seller and collect all amounts due for Products that Customers order from the Seller through the Marketplace. After processing a Customer Order, FreshFind shall email the Seller a notice of the Customer Order at the email address that the Seller identified in the FreshFind Portal. If FreshFind believes a transaction is erroneous, duplicate, contrary to the Marketplace Policy, or fraudulent, it may stop, cancel or prohibit the transaction. 

b. Transfer of Customer Payments. The Seller hereby appoints FreshFind as an agent of the Seller for the sole and express purpose of receiving payments from Customers for the Seller’s Products sold on the Marketplace. As between the Seller and a Customer who purchases Products from the Seller, FreshFind’s receipt of funds from the Customer will be deemed the receipt of funds by the Seller. FreshFind shall transfer the amount FreshFind collected from the Customer, less any amounts the Seller owes to FreshFind, to the Seller using the processes and under the timing set forth in the Policies. 

4.2 Taxes. 

a. Responsibility for Seller Taxes. 

(1) The Seller is responsible for: 

A. determining whether the Seller Taxes apply to a Customer Order; 

B. collecting, reporting, and remitting the correct Seller Taxes to the appropriate tax authorities; 

C. reviewing, determining, and maintaining the correct product tax codes, calculation settings and all related information for Products; and 

D. reviewing all tax-exempt transactions. 

(2) FreshFind is not responsible for: 

A. determining whether the Seller Taxes apply to a Customer Order; 

B. collecting, reporting, or remitting the Seller Taxes to any tax authority (except as required by Applicable Law to do so); 

C. The Seller’s use of or reliance on tax data or services provided by FreshFind or Tax Services, or for providing tax advice to the Seller; 

D. calculating, reporting, collecting or paying any product-based excise taxes or any fees or surcharges; 

E. providing support for tax exemptions based upon the identity of any individual, corporation or other entity, or the intended use of a product by any individual, corporation or other entity; 

b. Tax Jurisdictions. The Seller shall determine the jurisdictions in which it has an obligation to collect and remit the Seller Taxes. The Seller shall promptly notify FreshFind of the jurisdictions for which FreshFind should turn on collection of the Seller Taxes on the Seller’s behalf in tax software by selecting the applicable jurisdictions in the Seller’s Account profile in the FreshFind Portal. FreshFind will not turn on collection of the Seller’s Taxes on the Seller’s behalf for jurisdictions outside Canada. 

c. Collecting Taxes. When creating a Product Listing, the Seller has the ability to select a tax amount to collect. If indicated, FreshFind shall collect the Seller Taxes for jurisdictions in Canada from Customers who purchase Products on the Marketplace on the Seller’s behalf for the jurisdictions selected by the Seller based on the product tax codes the Seller provided. Except as required by Applicable Law, FreshFind shall transfer the Seller Taxes collected from Customers to the Seller, and the Seller shall report and pay any the Seller Taxes to the applicable tax authorities. 

d. Seller Reimbursement. If a tax authority requires FreshFind to pay any of the Seller’s Taxes, the Seller will promptly reimburse FreshFind for the amounts FreshFind paid and for any losses, expenses, or liabilities FreshFind paid or incurred related to the tax authority’s demand to FreshFind. 

e. Tax Data. The Seller acknowledges that non-parties will provide tax-related data (such as tax rates) to FreshFind (the “Tax Services”) and that FreshFind will use that data to collect the Seller Taxes on the Seller’s behalf. The Seller acknowledges that FreshFind and the Tax Services do not provide or comprise tax advice, that FreshFind will not provide the Seller tax advice, and that the Seller is responsible for determining the applicability and accuracy of any tax data or tax collection. 

f. Seller Is Not Relying On Tax Data. The Seller states that it is not relying and will not rely on the accuracy of tax data provided by FreshFind or Tax Services. If the Seller registers on the Marketplace, or continues to offer Products for sale on the Marketplace, the Seller will be deemed to have released any claims against the FreshFind Parties or the Tax Services arising from the Seller’s use of or reliance on tax data provided by FreshFind or Tax Services. 

g. Sales Tax On Payments To FreshFind. The Seller shall pay sales taxes, if any, pursuant to Applicable Law on any payments the Seller owes to FreshFind. 

4.3 Shipping. 

a. Seller Will Ship Products. The Seller shall handle all aspects of shipping Products to Customers in compliance with Applicable Law and the Policies. The Seller shall use reasonable care in packing, packaging, tagging, and labeling Products for shipment. 

b. Process. When the Seller receives notice of a Customer Order from FreshFind, the Seller shall fulfill the Customer Order in compliance with this agreement and make the Purchased Products available for pick up by or/and for delivery to the Customer. the Seller shall ship Purchased Products within the time period specified in the Policies. The Seller shall not substitute any Product for the Purchased Products. Title to and risk of loss of or damage to the Purchased Products will remain with the Seller until delivery to the Customer. FreshFind will not have title to, or be deemed the legal owner of, any Products. 

c. Overdue Orders. FreshFind may cancel any Customer Order that the Seller does not ship within the shipping period specified in the Policies. FreshFind is not required to compensate the Seller for any such cancelled order. It is the Seller’s responsibility to monitor all orders and ensure all shipments are made within the timeframes specified in the Policies. 

d. Delivery Errors. The Seller is responsible for any non-delivery or delivery error in connection with the delivery of its Products. 

4.4 Customer Returns.

a. Seller Will Handle Returns. The Seller shall handle any Customer returns of its Products. If the Seller accepts a Customer return, it shall provide notice of the return to FreshFind in the manner set forth in the Policies. If the Seller provides FreshFind notice of a return, FreshFind shall refund the Customer, and the Seller shall return to FreshFind all amounts FreshFind transferred to the Seller for that Customer Order. FreshFind is not required to accept or process returns of Products. If a Customer attempts to return a Product to FreshFind, FreshFind may accept that return. If FreshFind accepts the return, it will ship the Product to the Seller, and the Seller shall reimburse FreshFind for any shipping or processing costs, and any other losses, expenses, or liabilities FreshFind incurred in accepting the return. FreshFind may determine fees for processing and shipping returns to the Seller by posting those fees in the Policies. 

b. Seller Return Policy. The Seller shall submit a return policy (the “Seller Return Policy”) using the form provided on the FreshFind Portal. The Seller shall honor all Customer returns of Products in accordance with the Seller Return Policy published at the time a Customer purchased a Product. The Seller Return Policy must: 

(1) apply to all Products; 

(2) outline the process for Customers to return the Products directly to the Seller; and 

(3) be at least as accommodating to Customer returns as the applicable Marketplace’s return policy and the Seller’s own return policy. 

c. Refunds. If the Seller accepts a Customer return and notifies FreshFind of the return pursuant to section 4.4.a, FreshFind may refund the Seller a portion of FreshFind’s commission on that Customer Order as set forth in the Policies. 

4.5 Recalled Products; Defective Products. The Seller shall immediately notify FreshFind of any recall affecting a Product and shall immediately remove the Product Listing or its offers for sale posted to the Product Listing for that Product from the Marketplace. The Seller is responsible for all defective or recalled Products, including any losses, expenses, or liabilities related to recalls of its Products, and will bear all losses, expenses, or liabilities related to notifying Customers of and handling recalls of its Products. 

4.6 Customer Service Issues. The Seller shall handle all customer service issues related to the Seller’s Products. FreshFind is not responsible for handling customer service issues related to the Seller’s Products, and FreshFind may direct Customers who contact it with service issues related to Products to contact the Seller using the contact information the Seller has provided in the FreshFind Portal. If the Seller does not handle a customer service issue or a request from FreshFind to handle that issue, FreshFind may take any actions necessary to ensure the Seller’s compliance, and FreshFind will not be liable to the Seller for any results of those actions. If the Seller does not handle a customer service issue to FreshFind’s satisfaction, FreshFind may contact the Customer and take any action to resolve the issue. 

4.7 Chargebacks. FreshFind may charge the Seller for losses, expenses, or liabilities FreshFind incurs related to Customer disputes related to the Seller’s marketplace transactions or Products (“Chargebacks”). If FreshFind wants to charge the Seller for a Chargeback, it will send the Seller a notice of that Chargeback. If FreshFind sends the Seller a Chargeback notice, the Seller will respond and will provide FreshFind any information requested in the Chargeback notice within five (5) business days of receiving the notice. If the Seller does not respond to the Chargeback notice to FreshFind’s satisfaction, FreshFind may charge the Seller for the Chargeback, and the Seller will reimburse FreshFind for the Chargeback. The Seller will not be responsible for Chargebacks due to: 

a. theft or unauthorized use of a Customer’s payment card information for which FreshFind is responsible (except to the extent that theft or unauthorized use is attributable to the Seller); or 

b. FreshFind’s failure to send the Seller a notice of Customer Order. 

4.8 Customer Reviews and Ratings. FreshFind may ask Customers to rate or provide comments regarding the Seller or the Products, and may post any resulting ratings or comments on the Marketplace for public display. 

Article 5 Fees; Commissions; FreshFind’s Right To Recovery 

5.1 Monthly Subscription Fee. There is a zero monthly subscription fee and there are no immediate plans to implement monthly subscription fees (as are commonly charged on other marketplaces). FreshFind may, at its discretion, commence charging such a fee by providing the Seller 120 day notice that such fee is to commence. The Seller shall pay FreshFind the monthly subscription fees specified on the Seller Information Page for access to the Marketplace (the “Monthly Subscription Fee”). FreshFind may change the Monthly Subscription Fee by posting the new fee on the Seller Information Page, and any revised Monthly Subscription Fee will be effective from the date it is posted. The Seller’s failure to pay the Monthly Subscription Fee constitutes a material breach of this agreement. 

5.2 Commissions. The Seller shall pay FreshFind commissions on all amounts FreshFind collects on the Seller’s behalf for sales of Products, less the Seller Taxes, according to the “Commission Rate Schedule” specified in the Seller Information Page. FreshFind may change the Commission Rate Schedule by posting any changes to the Seller Information Page, and those changes will be effective from the date they are posted. The Seller’s failure to pay Commissions constitutes a material breach of this agreement. 

5.3 Methods For Obtaining Payment. Upon FreshFind’s demand, the Seller shall promptly pay any amounts it owes FreshFind. The Seller hereby authorizes FreshFind to use any of the following methods for obtaining payment of amounts the Seller owes FreshFind: 

a. recouping or setting-off any payments FreshFind owes to the Seller by any amount the Seller owes to FreshFind; 

b. reversing any credits to the Seller’s Account; 

c. deducting amounts owed to FreshFind from any Seller Holdback Funds FreshFind requires; 

d. charging the Seller’s credit card, or deducting funds from the Seller’s bank account; or 

e. seeking payment from the Seller by any other lawful means. 

5.4 Holdback Funds. FreshFind may in its reasonable discretion withhold payments to be made to the Seller (“Holdback Funds”). If FreshFind requires the Seller to maintain Holdback Funds, it may withhold a reasonable sum from payments to be made to the Seller based on the Seller’s creditworthiness, previous compliance with this agreement and the Policies, or any other reasonable factors. The establishment of Holdback Funds does not create any trust relationship; FreshFind may commingle any Holdback Funds with its other funds, and the Seller will remain a general creditor of FreshFind with respect to any Holdback Funds or other amounts FreshFind owes to the Seller. 

Article 6 Intellectual Property 

6.1 Grant of License by FreshFind. FreshFind hereby grants the Seller a non-exclusive, revocable, non-transferable license to promote and sell Products on or through the Marketplace to Customers, subject to the terms of this Agreement. 

6.2 Grant of License by Seller. The Seller hereby grants FreshFind a royalty-free, non-exclusive, irrevocable, perpetual, worldwide, royalty-free, right to use and to reproduce, modify, display, distribute, perform, re-format, merge, create derivative works of or otherwise commercially or non-commercially utilize in any manner the Seller Information with the right to sublicense such rights through multiple tiers. FreshFind shall not alter any Seller Marks from the forms provided by the Seller except to the extent necessary for presentation, so long as the relative proportions of the marks remain the same. FreshFind may also use the Seller Information in any way that is allowed without a license from the Seller under Applicable Law. “Seller Information” means any document or data that the Seller uploads to the FreshFind Portal or provides to FreshFind. 

a. Content that you post using our Services is your content (so let’s refer to it as “Your Content”). We don’t make any claim to it, which includes anything you post using our Services (like shop names, profile pictures, listing photos, listing descriptions, reviews, comments, videos, usernames, etc.).

b. Responsibility for Your Content. You understand that you are solely responsible for Your Content. You represent that you have all necessary rights to all parts of Your Content and that you’re not infringing or violating any third party’s rights by posting it.

c. Permission to Use Your Content. By posting Your Content through our Services, you grant FreshFind a license to use it. We don’t claim any ownership to Your Content, but we have your permission to use it to help FreshFind function and grow. That way, we won’t infringe any rights you have in Your Content and we can help promote it. For example, you acknowledge and agree FreshFind may offer you or FreshFind buyers promotions on the Site, from time to time, that may relate to your listings.

d. Rights You Grant FreshFind. (Here’s the legalese version of the last section). By posting Your Content, you grant FreshFind a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, display, edit, modify, reproduce, distribute, store, and prepare derivative works of Your Content. This allows us to provide the Services and to promote FreshFind, your FreshFind shop, or the Services in general, in any formats and through any channels, including across any FreshFind Services, our partners, or third-party website or advertising medium. You agree not to assert any moral rights or rights of publicity against us for using Your Content. You also recognise our legitimate interest in using it, in accordance with the scope of this license, to the extent Your Content contains any personal information.

That sounds like a lot, but it’s necessary for us to keep FreshFind going. Consider these examples: if you upload a photo or video of a listing on your FreshFind shop, we have permission to display it to buyers, and we can resize or enhance it so it looks good to a buyer using our mobile app; if you post a description in English, we can translate it into French so a buyer in Paris can learn the story behind your item; and if you post a beautiful photo or video of your latest handmade necklace, we can feature it - often along with your shop name and shop picture - on our homepage, in one of our blogs, or even on a billboard to help promote your business and FreshFind’s.

6.3 Ownership of Intellectual Property Rights. FreshFind will own all right, title and interest in and any IP Rights in the Marketplace and all data collected or stored in connection with the Marketplace. Except as expressly provided in this agreement, the Seller will not have any ownership in or license to any such rights. If the Seller is deemed to have any ownership interest or rights in all or any part of the foregoing, then the Seller shall assign all of those interests and rights to FreshFind. FreshFind may use any Seller Information to create, develop, or modify the Marketplace or any other FreshFind concept, brand, software code, product, or feature (“Improvements”), and FreshFind will own any Improvement and any IP Rights in an Improvement. If the Seller is deemed to have any ownership interest or rights in an Improvement, the Seller shall assign all of those interests and rights to FreshFind. 

6.4 Ownership of Content. The Seller will own all the Seller Marks and the Seller Information subject to section 6.3 and the License the Seller granted FreshFind in this agreement. 

6.5 Infringement of Non-Party Rights. The Seller shall ensure that its Products and the Seller Information do not infringe the intellectual property rights of a non-party. The Seller shall immediately notify FreshFind of any actual or alleged infringement of any intellectual property right of a non-party in connection with the Products or the Seller Information. The Seller is responsible for any losses, expenses, or liabilities related to any actual or alleged infringement of a non-party’s intellectual property rights in connection with the Seller’s Products or Seller Information. 

Article 7 Term and Termination 

7.1 Start and Term. This Agreement starts when the Seller registers on the Marketplace and continues until terminated by a party.  

7.2 Termination. The Seller may terminate this agreement for any reason by notifying FreshFind as then specified in the Portal. FreshFind may terminate this agreement for any reason by notifying the Seller. 

7.3 Effect of Termination. Upon termination, any rights or obligations of a party with respect to any outstanding sale transaction (including fulfillment and returns) will survive until completed. Any termination of this agreement will be without prejudice to the rights of either party against the other with respect to any claim, right, or obligation arising before the termination. Any obligations of the Parties relating to limitations on liability, confidentiality and indemnification, as well as any other obligations under this Agreement that by their nature are intended to survive, including any payment or customer service obligations in connection with the sale of Products hereunder, will survive termination of this Agreement. Upon termination, FreshFind may require the Seller to maintain Holdback Funds to cover any amounts the Seller does or may owe FreshFind, including to cover amounts the Seller will owe FreshFind for Customer returns of Products and Chargebacks. 

Article 8 Disclaimer of Warranties 

8.1 FreshFind hereby disclaims all warranties, representations, or guarantees of any kind, arising from any source, related to the Marketplace or any services, information, or products available through any links on the Marketplace. 

8.2 FreshFind is providing the Marketplace on an “as is” and “as available” basis, and the Seller’s use of the Marketplace is at the Seller’s own risk. FreshFind does not warrant that the Seller’s use of the Marketplace will be uninterrupted, error-free, or virus-free. 

8.3 FreshFind does not warrant or guarantee the Seller’s results from using the Marketplace, the sale of any Products on the Marketplace, or any services provided by FreshFind to the Seller in connection with the Marketplace. 

8.4 The Seller states that sections 8.1, 8.2, and 8.3 are conspicuous, that it has read and understood them, and believes that they are reasonable. 

Article 9 Limitation of Liability 

9.1 Regardless of whether FreshFind is aware or has been advised of the possibility of the following losses, expenses, or liabilities, FreshFind will not be liable to the Seller under any claim or theory for any special, consequential, or punitive damages, or for any lost profits, revenues, business, or data. 

9.2 FreshFind’s aggregate liability from any Seller claims related to this agreement will not exceed the total amount the Seller paid to FreshFind under this agreement. 

9.3 The Seller states that sections 9.1 and 9.2 are conspicuous, that it has read and understood them, and believes that they are reasonable. 

10 Article Indemnification 

10.1 Seller Indemnity. The Seller shall indemnify the FreshFind Parties from any loss, expense, or liability of any kind incurred in connection with any Covered Claim. “Covered Claim” means a non-party suit, claim, or demand of any kind arising out of: 

a. The Seller’s breach of this agreement or Applicable Law; 

b. death, illness, personal injury, or property damage arising out of or resulting in any way from any actual or alleged defect in a Product; 

c. any act or omission of the Seller, its agents, employees, or subcontractors relating to the sale of a Product; 

d. any actual or alleged breach of the Seller’s written warranty for a Product; 

e. any actual or alleged infringement of any patent, trademark, copyright, trade secret, trade dress or other intellectual property right of a non-party related to a Product, the Seller Information, or the Seller Mark; 

f. a Product Listing; 

g. a Product actually or allegedly violating any Applicable Law; or 

h. The Seller’s packaging, labeling, or advertising of a Product. 

10.2 Indemnification Process. If FreshFind seeks indemnification from a Covered Claim, it may provide the Seller reasonably prompt notice of that claim. If FreshFind sends the Seller a notice of a Covered Claim, the Seller shall respond reasonably promptly to FreshFind’s request, and shall select counsel reasonably acceptable to FreshFind to handle the Covered Claim. A FreshFind Party may also hire counsel at its own expense to participate in the defense of a Covered Claim. The Seller shall not bind a FreshFind Party in a settlement of a Covered Claim without that FreshFind Party’s prior written consent. 

Article 11 Confidentiality; Privacy; Data and System Integrity 

11.1 Definition of Confidential Information.

a. “Confidential Information” means: (1) any technical or business data or information that a FreshFind Party provides to the Seller regardless of whether marked or identified as “Confidential”, (2) the terms of this agreement, and (3) the operations and technology to be utilized in connection with the FreshFind Portal and Marketplace. 

b. Confidential Information does not include information that: (1) pertains to goods that are sold or distributed by the Seller to other retailers; (2) is already in the Seller’s possession and not covered by a confidentiality obligation; (3) becomes publicly available without action or fault on the Seller’s part; or (4) The Seller obtains from a non-party without that non-party’s breach of an obligation or duty. 

11.2 Treatment of Confidential Information.

a. Use. 

(1) The Seller shall use Confidential Information only for performing under this agreement. The Seller shall preserve the confidentiality of any Confidential Information and any record containing Confidential Information. 

(2) The Seller shall not disclose or permit the disclosure of such information or records to any non-party except: (A) to obtain services necessary to perform under this agreement, (B) to obtain legal, tax, or accounting services, or (C) to respond to a valid subpoena or similar process. 

(3) The Seller shall not disclose Confidential Information or records containing Confidential Information to a non-party under section 11.2.a.2.A or 11.2.a.B unless the non-party has a legal obligation to maintain the confidentiality of the information and the Seller reasonably believes the non-party will in fact maintain the confidentiality of the information. 

(4) If the Seller seeks to disclose Confidential Information pursuant to section 11.2.a.2.C, the Seller will provide FreshFind reasonable notice before disclosing the information, and FreshFind may reasonably respond to the proposed disclosure. 

b. Return or Destruction. The Seller shall promptly return or destroy any Confidential Information or records containing Confidential Information at FreshFind’s request, except to the extent the information or records are: (1) contained in backup media used as such, (2) required to be maintained under Applicable Law, or (3) necessary for purposes of prosecuting or defending a claim related to this agreement. 

11.3 Customer Personal Information.

a. Definition. “Customer Personal Information” means any data or information related to identified or identifiable Customers or related non-parties (such as non-parties that Customers designate as recipients of shipments). 

b. Use of Customer Personal Information. FreshFind will own all Customer Personal Information that it or the Seller collects. The Seller shall use Customer Personal Information only in accordance with Applicable Law and only to perform the Seller’s obligations or exercise the Seller’s rights under this agreement or as necessary for legal compliance. The Seller shall not: 

(1) transmit Customer Personal Information to any non-party except for purposes of performing under this agreement; 

(2) use Customer Personal Information to send marketing materials to or contact any person except for purposes of performing under this agreement; 

(3) solicit additional information from a Customer or related individual; 

c. Protection of Customer Personal Information. The Seller shall protect Customer Personal Information from unauthorized access, use, deletion, degradation, encryption, or disclosure (a “Data Breach”). The Seller shall maintain industry standard data security measures and processes. If the Seller obtains any Customer credit card data in connection with this agreement, the Seller will also comply with Payment Card Industry Data Security Standards. The Seller shall not transmit Customer Personal Information in any unsafe manner or to any person unless the Seller reasonably believes that person will maintain the confidentiality and security of the information. If the Seller learns of any Data Breach, the Seller will immediately notify FreshFind of the breach and will cooperate fully with FreshFind to respond to the breach. 

11.4 Use of Marketplace Systems.

a. Seller Credentials. The Seller shall maintain the security of the Seller’s log-in credentials to the Marketplace. The Seller is responsible for any expense, loss, or liability caused by the loss or breach of those credentials. 

b. No Unauthorized Use. The Seller shall not use the Marketplace or any of its systems, code, or application programming interfaces: 

(1) to violate the security of, or gain unauthorized access to, any computer, computer network, or other device or system; 

(2) to discover passwords or security encryption codes; 

(3) to use any robot, spider, site search or retrieval application, or other device to retrieve or index any portion of the Marketplace; 

(4) to collect any information about Customers; 

(5) to reformat or frame any portion of the Website; 

(6) to attempt to duplicate all or any part of the Marketplace or its code, or to attempt to reverse engineer or decompile any code, or to attempt to create a substitute or competing marketplace service; 

(7) in a manner that would be detrimental to the function of the Marketplace or to other sellers’ or Customers’ use of or access to the Marketplace. 

c. No Archive Use. The Seller acknowledges that FreshFind is not providing archive services and that the Marketplace is not intended to function as archives. The Seller is responsible for maintaining independent archival and backup copies of the Seller’s information. 

11.5 Equitable Relief. The Seller acknowledges that a breach of Article 11 would result in harm to FreshFind that could not be adequately remedied by payment of money damages, and that FreshFind may seek equitable relief, including an injunction, to prevent such a breach. The Seller states that, if FreshFind seeks equitable relief to prevent a breach of Article 11, the Seller will not argue that equitable relief is not appropriate or available to FreshFind. 

Article 12 Governing Law & Disputes 

12.1 Governing Law. The laws of Canada, without regard to their conflicts or choice of law rules, govern all matters relating to this agreement. The United Nations Convention on Contracts for the International Sale of Goods do not apply to this agreement. 

12.2 Disputes. All disputes related to this agreement will be filed and heard exclusively by a court of competent jurisdiction in Toronto, Ontario, Canada. 

Article 13 Miscellaneous 

13.1 Use of Subcontractors. The Seller may use subcontractors in its performance under this agreement. If the Seller uses subcontractors, the Seller will: (a) be responsible for the acts or omissions of its subcontractors, and (b) require subcontractors to act in compliance with this agreement. FreshFind may require the Seller to stop using any subcontractor for any reason. 

13.2 Invalidity; Waiver. No finding that any part of this agreement is invalid will affect the remaining portions of this agreement. The waiver by any party of a breach of any provision of this agreement by the other party, will not be construed as a waiver of any subsequent breach of the same or any other provision of this agreement, nor will any delay or omission by either party to exercise or enforce any right or remedy under this agreement operate as a waiver of any right or remedy. 

13.3 Assignment. The Seller shall not assign or transfer any of its rights or obligations under this agreement without FreshFind’s written consent. Any such attempted assignment or transfer will be void. 

13.4 Insurance. The Seller shall maintain insurance coverage and limits as required by Applicable Law and the Policies. The Seller shall list FreshFind and all of its subsidiaries, officers, directors, agents, and employees as an additional insured on these policies. The Seller shall include in those policies a waiver of subrogation in favor of FreshFind, and those policies shall be primary and noncontributory with any insurance that FreshFind carries. 

13.5 Notice. Unless otherwise specified in this Agreement, FreshFind may provide notices to the Seller through the Portal, or at the address, email address, or fax number the Seller specifies in the Portal. The Seller shall send all notices to FreshFind through the Portal. All notices provided by FreshFind to the Seller through the Portal, or by email, fax, or any other form of electronic communications will be construed as being “in writing”. 

13.6 Integration; No Reliance. This agreement, the Policies, and any Seller specific addenda govern the Seller’s access to and use of the Marketplace. The Seller states that it is not relying on any promises or statements of fact not contained in these documents in deciding whether to enter into this agreement. 

13.7 Construction. This agreement was drafted based on “A Manual of Style for Contract Drafting, 3d Ed.” If the terms of this agreement or a Policy conflict with the terms of a Seller specific addendum, the terms of the Seller specific addendum will control. If the terms of this agreement conflict with the terms of a Policy, the terms of this agreement will control. 

13.8 Relationship of Parties. The parties enter this agreement intending that the Seller will be an independent contractor. This agreement does not create any partnership, joint venture, agency, sales representative, or employment relationship between the parties. This agreement is for the sole benefit of FreshFind, Customers, and the Seller, and there are no other intended non-party beneficiaries of this agreement. 

Article 14 Definitions 

14.1 “Account” means the Seller’s Marketplace account, which is accessible through the Portal. 

14.2 “Applicable Law” means all requirements of federal, provincial, or other jurisdictional laws, regulations, ordinances, and administration orders and rules of Canada, and all other countries in which the Products are produced, sold, or delivered. 

14.3 “Business Day” means a day, Monday through Friday (Toronto, Ontario, Canada local time), on which banks are open and transacting business that is not a Canadian Federal holiday. 

14.4 “Customer” means any customer accessing the Marketplace, or placing or receiving any order for Products via the Marketplace. 

14.5 “Customer Order” means an order of a Product by a Customer. 

14.6 “IP Rights” means all intellectual property rights which now or hereafter exist throughout the universe, whether conferred by operation of law, contract, or license, including rights of authorship, including copyrights, moral rights and mask-works, marks, cosmetic designs, ornamental appearance and trade dress, trade secret rights, inventions, and technology (whether patentable or not and whether or not reduced to practice), Confidential Information (as defined herein), software and databases, rights of publicity, patents, designs, algorithms, and other industrial property rights, and “rental” rights and rights to remuneration; 

14.7 “Parity” means that a Product’s price (including any discount, rebate, or “low price” guarantee), quality (including quality assurances), shipping and handling charges (including any free or discounted shipping and handling), or other benefits are at least as favorable to Customers on the FreshFind Marketplace as those associated with identical Products offered on the Seller’s other sales distribution channels. 

14.8 “FreshFind Portal” means the online interface by which the Seller accesses its Marketplace account, communicates with FreshFind Outfitters, uploads its Product Listings, manages its Customer Orders, and other such activities related to this agreement. 

14.9 “Products” means the goods, offers, or services, including shipping costs, that the Seller markets and lists for sale to Customers on the Website. 

14.10 “Product Listings” means the offers the Seller creates for display on the Marketplace related to the sale of Products.

14.11 “Purchased Products” means the Products requested in a Customer Order. 

14.12 “Restricted Products” means the items and categories listed in the Seller Restricted Products Policy, available on the Portal. 

14.13 “Seller Information Page” means the page on a Marketplace that contains the Marketplace’s Seller terms and conditions, policies and procedures, and other information for the Sellers. 

14.14 “Seller Marks” means all of the Seller’s domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names. 

14.15 “Seller Taxes” means any and all sales, goods and services, excise, import, export, value added, consumption and other taxes and duties assessed, incurred, or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by the Seller, or otherwise in connection with any action, inaction or omission of the Seller, any affiliate of the Seller, or any of the Seller’s affiliates’ employees, agents, contractors or representatives. 

14.16 “FreshFind Marks” means all FreshFind domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names. 

14.17 “FreshFind Parties” means FreshFind and all of its past, present and future parents, subsidiaries, affiliates, directors, officers, and employees.