Vendor Terms

Naborino Inc. (“Naborino”)

Vendor Terms of Use Agreement

Last modified: January 27, 2023

Effective date: January 1, 2023

OVERVIEW

Welcome to the Naborhood on Naborino (pronounced “neighbor-ree-noh”)! Naborino is a platform to help build, manage, socialize, and transact on and within communities.

This Agreement, along with the Naborino Privacy Policy, Terms of Use, any Schedules, and any Naborino 3rd party partner terms of service form the parameters for how we (Naborino Inc. and you, a Vendor registered or registering to use the Services) work together (“Terms of Service”). By using the Naborino Marketplace (as defined below) and any other Naborino services, websites, or applications, or any Naborino 3rd party partner services, websites, or applications (e.g. Stripe) (collectively all the “Services”) you represent and warrant that you are of legal age to form a binding contract and meet the following eligibility requirements. If you do not meet these requirements, you must not access or use the Services. If you are entering into these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that party to these Terms of Service and, in such event, “you” and “your” will refer and apply to that party. You acknowledge and agree that by accessing or using the Services (including by downloading or posting any content from or onto the Services), you agree to be bound by these terms and all other terms and policies referenced in these terms. This applies whether or not you have registered on or through the Services. If you do not agree, then you have no right to access or use the Services or collective content.

Naborino reserves the right, at its sole discretion, to modify, suspend, discontinue or terminate the Services or any content, feature or material provided thereon, or to modify the Terms of Service, at any time and without prior notice, and have no obligation to update any information thereon. Naborino will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, Naborino may restrict access to some or all parts of the Services. You agree that it is your responsibility to monitor changes to the Naborino Services and Terms of Service. Naborino will use best efforts to inform Vendors of any material modifications in any Terms of Service and will post the modification on the Naborino website and/or application and/or provide you with notice of the modification. By continuing to access or use the Services thereafter, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the Services in accordance with the Termination rights outlined in this Agreement.

This Agreement is made effective as of the date the Vendor registers and uses or adds any content to the Services (the “Effective Date”). This Agreement is by and between Naborino Inc., a Canadian corporation with a registered office located at 305-760 Sheppard Avenue West, Toronto, Ontario, M3H 0B3, Canada (“Naborino”) and the registered Vendor (the “Vendor”). Naborino and the Vendor are each referred to as a “Party” and, collectively, referred to as the “Parties”.

BACKGROUND

A. The Vendor is engaged in the manufacturing, creating, retailing, selling, distributing, and/or providing of a Product and/or Vendor Service.

B. Naborino desires to distribute the Product and/or Vendor Service within the Territory using Naborino’s proprietary, digital, two-sided marketplace (the “Naborino Marketplace”).

In consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby covenant and agree as follows (the “Agreement”):

DEFINITIONS

“Business Day” means each of Monday, Tuesday, Wednesday, Thursday and Friday, except when any such day occurs on a statutory holiday observed in Canada.

“Community” (singular) or “Communities” (plural) means groups of users set up on the Naborino Marketplace and include, but are not limited to, users residing in the same residential building, having social or commercial associations, having familiar associations, or any other group so formed.

“Community Leaders” means one or more users designated by Naborino as Community leaders with the aim of helping to:

1. grow their Community users;
2. act as a point-of-contact for Naborino on behalf of a Community;
3. promote Naborino, Vendors, and Products and/or Services offered and especially Group Buy deals;
4. receive Products and assist in distributing Products to Purchasers;
5. assist in other ways that Naborino may reasonably ask;

Community Leaders may receive compensation from Naborino.

“Group Buy” means a listing of a Product or Vendor Service at a discounted price and with a minimum order quantity of two (2) or more units.

“Individual Buy” means a listing of a Product or Vendor Service with no minimum order quantity.

“Intellectual Property” means copyright (including foreign language translations), collective rights, database rights, rights in design, patents, rights to inventions, trademarks, trade names, signs and other designations, rights in get-up, rights in goodwill or to sue for passing off, rights in computer software and in all similar rights, in each case whether registered or unregistered (including, without limitation, all extensions, reversions, revivals and renewals thereof).

“Naborino Marketplace” refers to the system, processes, and technology, whether web-based, mobile-based, or otherwise, used by Naborino to allow users to search for, buy, and comment on Products and Vendor Services, and for Vendors to list Products and Vendor Services.

“Person” means any person, individual, firm, association, syndicate, partnership, joint venture, trustee, trust, corporation, division of a corporation, unincorporated organization or other entity or a government agency or political subdivision thereof.

“Product” means the finished goods manufactured, created, retailed, sold, distributed, and/or provided, and sold by the Vendor.

“Purchaser” means a customer of Naborino who buys the Vendor’s Product or Service through Naborino by using the Naborino Marketplace.

“Term” means the term of this Agreement as set forth in the Term section of this Agreement and comprising of the Initial Term and any Renewal Term.

“Territory” means all districts, cities, towns, provinces, states, or countries listed in the Naborino Marketplace and, as may be applicable, selected by the Vendor.

“Trade-marks” means all the trade-marks and trade names, whether registered or not registered, which are owned and used by or under license from the Vendor and which appear on the Product including without limitation, the trade-marks.

“Vendor Services” means services rendered by the Vendor for a fee to a Purchase.

2. APPOINTMENT

2.1 – The Vendor appoints Naborino as a non-exclusive distributor of the Product in the Territory, and Naborino hereby accepts such appointment upon the terms, provisions, and conditions of this Agreement for the period of the Agreement Term.

3. GENERAL

3.1 – The Vendor agrees to give Naborino authority to promote and market the Vendor’s Products and Vendor Services.

3.2 –The rights and authority given to Naborino are not exclusive.

3.3 – Naborino works on a non-exclusive basis for the Vendor and Naborino is permitted to work with other Vendors.

3.4 – Neither party, including its affiliates, directors, officers, or employees, shall act or communicate in any way that may harm or in any way diminish the brand or name of the other party.

3.5 – In the event of any conflict or inconsistency between the contents of the main body of this Agreement and the Schedules, the applicable contents of the main body of this Agreement will prevail to the extent of such conflict of inconsistency, except to the extent that a provision of the Schedule expressly identifies a section of this Agreement that it supersedes with reference to such section.

3.6 – If a court or other lawful authority of competent jurisdiction declares any provision of this Agreement invalid, illegal or unenforceable, such provision will be severed from this Agreement and this Agreement will continue in full force and effect with respect to all other provisions and all rights and remedies accrued under such other provisions and sections will survive any such declaration.

3.7 –All dollar amounts referred to in this Agreement shall be in Canadian dollars unless otherwise stated.

3.8 – References to the singular include the plural and vice versa and any reference to one gender includes all genders.

3.9 – References to persons shall include bodies corporate, partnerships, unincorporated associations and any other legal or commercial entity or undertaking.

3.10 –Any reference to a clause is to a clause of this Agreement. Any reference to a section is to a section of this Agreement.

3.11 – Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

3.12 – The headings used in this Agreement are included for convenience only and shall not be used in construing or interpreting this Agreement.

4. TERM

4.1 –This Agreement will commence on the Effective Date and will continue until terminated in accordance with the Termination rights outlined in this Agreement.

5. TERMINATION

5.1 -Termination for Convenience: Either Party may elect at any time to terminate this Agreement for convenience by providing to the other Party sixty (60) days prior written notice of such termination.

5.2 -Termination for Terms of Service Modifications: Either Party may elect to terminate this Agreement within ninety (90) days of any modification to the Terms of Service by providing to the other Party written notice of such termination and with the termination coming into effect forthwith.

5.3 – Termination for Cause: Either Party may terminate this Agreement forthwith for cause by providing notice to the other Party of such termination if such Party commits a material breach of any obligation set out in this Agreement or any of the Terms of Service and:

a) such breach is not capable of being cured; or
b) if such breach is capable of being cured, the other Party fails to cure such breach within 30 days of receipt of notice of such breach.

5.4 – Other Terms Relating to Termination: Upon termination of this Agreement:

a) Naborino may invoice the Vendor, and the Vendor will pay Naborino all Success Fees for Services rendered and transactions made up to the effective date of termination;

b)The Vendor may invoice Naborino, and Naborino will pay the Vendor all payments for Products and/or Vendor Services rendered and transactions made up to the effective date of the termination; and

c) Both Parties will destroy all Confidential Information and property promptly after the effective date of termination, except to the extent a Party is required to maintain a copy for the purposes of compliance with applicable law or during the period of any dispute between the Parties for the purposes of such dispute.

6. NABORINO OBLIGATIONS

6.1 – Naborino agrees to make best efforts to:

a) Keep the Services operational;

b) Correct any identified and acknowledged issue with the Services;

c) Facilitate the distribution of the Products and/or Vendor Services within Communities either directly or through Community Leaders;

d) Expeditiously process all transactions, including sending invoices to the Vendor and paying the Vendor as per the Payment Terms.

7. VENDOR OBLIGATIONS

7.1 – The Vendor agrees to use the Naborino Marketplace to list the Vendor Products and Vendor Services and make best efforts to:

a) Add full Product and/or Vendor Service descriptions and update as may be necessary;

b) Add full Product and/or Vendor Service images and update as may be necessary;

c) Accurately list the suggested retail price and update as may be necessary;

d) Offer Products and/or Vendor Services as Group Buy deals where a group of at least 2 or more Naborino Marketplace customers can participate in the same transaction;

e) Set an appropriate Group Buy deal minimum order quantity;

f) Offer Naborino Marketplace customers with discounts to the suggested retail price of no less than or equal to:

1. 10% (or a mutually agreed discount rate) for Products purchased individually (not as part of a Group Buy), with any shipping costs waived at the discretion of the Vendor and when individual orders are greater than or equal to $40.00;
2. 20% (or a mutually agreed discount rate) for Products purchased as part of a Group Buy, with any shipping costs waived;
3. 15% (or a mutually agreed discount rate) for Vendor Services purchased individually (not as part of a Group Buy);
4. 30% (or a mutually agreed discount rate) for Vendor Services purchased as part of a Group Buy;
5.  

The Vendor acknowledges that Group Buy success is predicated on the deal economics and that Naborino may recommend higher discounts than those listed above.

7.2 – The Vendor agrees to make sufficient inventory available to fulfil Naborino Marketplace orders. The Vendor will make best efforts to pack and ship orders, at the Vendor’s expense, within 2 Business Days of receiving a purchase order from Naborino. The Vendor will make best efforts to have Products and/or Vendor Services delivered Purchasers or Community Leaders, as Naborino directs, within 5 Business Days of receiving a purchase order from Naborino. The Vendor shall immediately notify Naborino of any known or anticipated delays in fulfilling new or previously entered orders and the estimated duration of any delays so that Naborino may fairly represent this information to existing or potential customers.

7.3 – The Vendor shall assist Naborino with any customer questions or concerns related to the Products or the Vendor Services or related to the Vendor.

7.4 – Any warranty for the Product or Vendor Service shall pass directly from Naborino to the Purchaser of the Product or Vendor Service. Pursuant to any such warranty, the Purchaser shall contact Naborino directly to make arrangements for repair, return, or replacement of any allegedly defective Product or Vendor Service. Naborino shall have sole authority to deal with customers directly or include the Vendor regarding any such warrantable repairs, returns, or replacement. Upon receipt of any such warrantable claims, Naborino shall separately contact the Vendor to arrange for a Product or Vendor Service exchange, return with full refund, or full refund without return. The Vendor will cover all costs, including shipping and handling costs reasonably incurred by Naborino or the purchaser and make any such reimbursements and validated warranty claim refunds within 10 business days of such validated warranty claim. The decision for determination of defect and replacement or credit shall be solely at the Vendor’s discretion and must be made within 5 business days of either receiving reasonably sufficient information and/or the defective Product to make such determination. All refunds and expense reimbursements will be paid by the Vendor to Naborino who will then pass through such refunds and expense reimbursements to the Purchaser.

7.5 – The Vendor shall offer a full refund on any Product if the Purchaser, acting reasonably, at the sole determination of Naborino, files a refund request with Naborino. The Vendor may request, through Naborino, for the Purchaser to return the Product, at the Vendor’s expense, in order to process a refund. All refunds and expense reimbursements will be paid by the Vendor to Naborino who will then pass through such refunds and expense reimbursements to the Purchaser.

7.6 – The Vendor agrees not to do any of the following:

a) Post, upload, publish, submit or transmit any content that:

1. infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
2. violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
3. is fraudulent, false, misleading or deceptive;
4. is defamatory, obscene, pornographic, vulgar or offensive;
5. promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
6. is violent or threatening or promotes violence or actions that are threatening to any person or entity; or
7. promotes illegal or harmful activities or substances.

b) Use, embed, display, mirror or frame the site or application, or any individual element within the Services, Naborino’s name, any Naborino trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Naborino’s express written consent or as enabled by features made available by Naborino (e.g., widgets).  The Vendor may link to Naborino’s homepage, so long as you do not imply or suggest any form of association, approval or endorsement on our behalf without our express written consent but you may not link to the site in a libelous, misleading or otherwise unlawful manner, or in any manner that violates these Terms of Service);

c) Access, tamper with or use non-public areas of the site or application, Naborino’s computer systems or the technical delivery systems of Naborino’s providers;

d) Attempt to probe, scan, or test the vulnerability of any Naborino system or network or breach any security or authentication measures;

e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Naborino or any of Naborino’s providers or any other third party (including another user) to protect the Services or content;

f) Attempt to access or search the Services or content or download content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Naborino or other generally available third party web browsers;

g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation to, through, or with any assistance from, the Services;

h) Use any meta tags or other hidden text or metadata utilizing a Naborino trademark, logo URL or product name without Naborino’s express written consent;

i) Use the Services or content in any manner not permitted by these Terms of Service;

j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or content to send altered, deceptive or false source-identifying information; 

k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the Services or content;

l) Interfere with, or attempt to interfere with, the access of any user, host or network, including sending a virus, overloading, flooding, spamming or mail-bombing the Services;

m) Collect or store any personally identifiable information from the Services from other users of the site, Services or application without their express permission and in a manner that does not violate Naborino’s Privacy Policy;

n) Impersonate or misrepresent your affiliation with any person or entity;

o) Violate any applicable law or regulation; or

p) Encourage or enable any other third party to do any of the foregoing.

Naborino will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Faire may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Naborino has no obligation to monitor your access to or use of the Services or content, or to review or edit any content, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms of Service, to investigate a complaint or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Naborino reserves the right, at any time and without prior notice, to remove or disable access to any Vendor or user or content that Naborino, in its sole discretion, considers to be in violation of these Terms of Service or otherwise harmful to the Services. Naborino reserves the right to cooperate fully with law enforcement, and to involve and share information with law enforcement, governmental agencies or other oversight bodies if Naborino suspects illegal activity may be taking place.

8. TRADEMARKS

8.1 –Subject to the terms and conditions of this Agreement, the Vendor hereby grants Naborino, during the Term:

a) a non­exclusive and revocable license to use, reproduce and display the Vendor’s trademarks and service marks (the “Trademarks”) and enable Naborino’s agents and representatives to use such Trademarks for the purposes of performing the Services outlined in this Agreement in accordance with any trademark guidelines provided by the Vendor to Naborino from time-to-time; and

b) access and use the materials of the Vendor containing the Trademarks accessible online via the Vendor’s URLs. 

c) Any goodwill arising from the use of the Trademarks by Naborino will accrue to the Vendor.

9. FEES & PAYMENT TERMS

9.1 – The Vendor shall pay a fee to Naborino based on a percentage of the total invoiced amount for each transaction on the Naborino Marketplace, as follows (the “Success Fee”):

a) 25% (or a mutually agreed discounted rate, agreed to in writing) for Products purchased individually (not as part of a Group Buy);

b) 20% (or a mutually agreed discounted rate, agreed to in writing) for Products purchased as part of a Group Buy;

c) 35% (or a mutually agreed discounted rate, agreed to in writing) for Vendor Services purchased individually (not as part of a Group Buy);

d) 30% (or a mutually agreed discounted rate, agreed to in writing) for Vendor Services purchased as part of a Group Buy;

9.2 – Naborino shall collect applicable sales taxes (GST/HST) and remit these as applicable to appropriate government institutions. The Vendor is obligated to collect and pay any taxes applicable to the Vendor.

9.3 – Naborino shall collect and process all transactional payments for Products and/or Services from Purchasers.

9.4 – Naborino shall send a purchase order to the Vendor for any Group Buy or Individual Buy transactions within 2 Business Days of a transaction closing (Purchaser payment processed).

9.5 – The Vendor shall invoice Naborino and Naborino will pay the invoice within thirty (30) days’ of receipt.

9.6 – Naborino may offset payments for Products and Vendor Services to the Vendor with Success Fees and any other fees, refunds, or amounts owing, including the Success Fees, owing from the Vendor to Naborino. If Naborino does not offset Fees then the Vendor shall pay all Fees within 30 days of receipt of an invoice from Naborino.

 

10. FORCE MAJEURE

10.1 –If either Party’s ability to perform any obligations under this Agreement are curtailed or limited, directly or indirectly, by events that are commonly referred to as force majeure events such as an act of God, act of public enemy, acts of governmental bodies or agencies foreign or domestic, nuclear incidents, sabotage, riot, fire, floods, typhoons or unusually severe weather, earthquakes, explosions or other catastrophes, epidemics or quarantine restrictions, strikes, labour unrest, or labour shortages, accident, governmental authorizations or instructions, network, email or other computer failure or because of any other cases beyond either Party’s control, in whole or in part, the failure of such Party shall not constitute a breach or failure of performance hereunder for the period of time occasioned by any such occurrence.

10.2 – Upon the occurrence of any force majeure event, the Party experiencing such occurrence shall promptly notify the other Party of the occurrence, if reasonable to do so, and estimate the duration of said occurrence. Thereupon, the time within which the Party experiencing such occurrence shall have to perform its obligations hereunder shall, to the extent necessitated by such occurrence and for the duration of such occurrence, be appropriately delayed.

11. CONFIDENTIALITY

11.1 –For purposes of this Agreement, “Confidential Information” means the terms of this Agreement and any and all information of the Vendor or Naborino (the “Disclosing Party”) or any of their licensors, customers, employees or other service providers that has or will come into the possession or knowledge of the other Party (the “Receiving Party”) in connection with or as a result of entering into this Agreement and any Schedules under this Agreement, including information concerning the Disclosing Party’s past, present or future customers, Vendors, technology, strategies, business models or processes, or business. Notwithstanding the foregoing, Confidential Information does not include information that is: (i) publicly available; (ii) established by evidence to have been already known to the Receiving Party at the time of its disclosure to the Receiving Party; (iii) independently developed by the Receiving Party without any use of or reference to the Confidential Information of the Disclosing Party; or (iv) received by the Receiving Party in good faith without an obligation of confidence of any kind from a third party.

11.2 – The Receiving Party agrees that, subject to the sub-section below (sub-section 3 of this Confidentiality section), the Receiving Party will not use, disclose, provide access to, transfer or otherwise make available any Confidential Information for any purpose, other than as and to the extent expressly permitted under this Agreement or as may be reasonably necessary for the performance of its obligations set out in this Agreement.

11.3 – The Receiving Party may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by applicable law, provided that, unless prohibited by applicable law, the Receiving Party must first give the Disclosing Party an opportunity to oppose the disclosure or to seek a protective order protecting such Confidential Information prior to any such disclosure, and provided that such disclosure complies with the terms of any such protective order obtained to which the Receiving Party is subject.

11.4 – If the Receiving Party becomes aware of any loss of or unauthorized access to Confidential Information, the Receiving Party will promptly notify the Disclosing Party.

12. INDEMNIFICATION

12.1 – The Vendor shall indemnify and hold Naborino harmless against any liability, damage, disparagement or expense (including costs and attorney’s fees and expenses) by reason of, or arising out of or relating to any acts, product or service defects, fraud, duties or obligations or omissions of the Vendor or of any personnel employed or otherwise engaged by the Vendor to perform the Vendor’s obligations and duties under this Agreement that are in breach of the terms of this Agreement, and the Vendor shall, at the request of Naborino assume the defence of any demand, claim, action, suit or proceeding brought against Naborino by reason thereof and pay any and all damages assessed against or that are payable by Naborino as the result of the disposition of any such demand, claim, action, suit or proceeding.

12.2 – Naborino shall indemnify and hold the Vendor harmless against any liability, damage, disparagement or expense (including costs and attorney’s fees and expenses) by reason of, or arising out of or relating to any acts, product or service defects, fraud, duties or obligations or omissions of Naborino or of any personnel employed or otherwise engaged by Naborino to perform Naborino’s obligations and duties under this Agreement that are in breach of the terms of this Agreement, and Naborino shall, at the request of the Vendor assume the defence of any demand, claim, action, suit or proceeding brought against the Vendor by reason thereof and pay any and all damages assessed against or that are payable by the Vendor as the result of the disposition of any such demand, claim, action, suit or proceeding.

13. LIMITATION OF LIABILITY

13.1 – Subject to the sub-section below (sub-section 3 of the Limitation of Liability section), each Party’s liability, if any, to the other Party arising out of or in any way related to this Agreement or the performance of its duties and obligations hereunder will for all purposes in total be limited to an amount not to exceed the Success Fees paid or payable by the Vendor to Naborino from the preceding 6 months of the date of any instance that caused any liability.

13.2 – Subject to the sub-section below (sub-section 3 of the Limitation of Liability section), in no event will either Party have any liability, whether based on warranty, contract, tort, negligence, strict liability or any other legal theory, at any time for any indirect, special, punitive, incidental or consequential damages, even if advised of the possibility of such damages.

13.3 – The above 2 sub-sections (sub-sections 1 and 2 of the Limitation of Liability section) will not limit the liability of either Party for breaches of Confidentiality under this Limitation of Liability section or its liability or obligations under the Indemnification section.

14. INTELLECTUAL PROPERTY RIGHTS

14.1 – Each Party acknowledges that it does not acquire any intellectual property or other proprietary rights under this Agreement, including any right, title or interest in and to patents, copyrights, trademarks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the other Party’s intellectual property or any part thereof, other than as expressly set out in this Agreement. Any rights not expressly granted under this Agreement are reserved.

14.2 – Nothing in this Agreement shall affect the ownership of Intellectual Property existing prior to this Agreement belonging to one Party (“Background IPR”) which is and shall remain the exclusive property of the Party owning it (or, where applicable, the third party from whom its right to use the Background IPR has derived).

14.3 – Both Parties agree not to make any claims with respect to the Intellectual Property rights of the other Party during the Term.

14.4 – Any Intellectual Property jointly developed by the Parties, shall be jointly owned by Naborino and the Vendor with a royalty-free license to each Party to use such Intellectual Property as permitted hereunder.

14.5 – Neither Party will do, or authorize any third party to do, any act which would or might invalidate or might be inconsistent with any Intellectual Property of any other or which would or might prejudice the distinctiveness or goodwill therein and will not omit to do, or authorize any third party to omit to do, any act which, by its omission, would have that effect.

14.6 – Each Party will notify the other Party immediately if it becomes aware of any unauthorized use of any of the Intellectual Property.

15. NON-SOLICITATION

15.1 – The Vendor agrees not to contact or initiate contact during the Term of this Agreement and for 3 months after the termination or expiry of this Agreement for any purpose, either directly or indirectly, with any Purchaser, unless such approval is specifically granted in written form by Naborino on a case-by-case basis or if the Vendor can demonstrate that the Purchaser was a paying customer of the Vendor at any time within the twelve (12) months preceding them becoming a Purchaser of the Vendor on the Naborino Marketplace.

16. INDEPENDENT CONTRACTOR

16.1 – Naborino is an independent contractor and nothing in this Agreement shall be construed to:

a) give either party the power to direct and control the day-to-day activities of the other;

b) constitute the parties as partners, joint venturers, co-owners or otherwise; or

c) allow Naborino to create or assume any obligation on behalf of Vendor for any purpose.

Naborino is not an employee of the Company and is not entitled to any employee benefits. Naborino shall be responsible for paying all income taxes and other taxes charged to Naborino on amounts earned hereunder. All financial and other obligations associated with Naborino’s business are the sole responsibility of Naborino.

17. PUBLIC ANNOUNCEMENTS

17.1 – Naborino may make public announcements relating to this Agreement and use the name of the Vendor in any advertising, promotional materials or publicity release without securing the prior written approval of the Company.

18. NOTICES

18.1 – Any notices, reports or other communications required or permitted to be given under this Agreement will be in writing, including email, and will be sufficient if delivered by hand or sent by registered mail or courier addressed to Naborino or to the Vendor at their respective addresses as advised in writing. Any such notices, reports, or other communications will be deemed to have been received by the Party to whom they were addressed:

(i) upon delivery by hand,

(ii) five business days after being sent by registered mail,

(iii) upon delivery by courier, as evidenced by the courier receipt, or

(iv) if sent by email, upon receipt by the sender of a delivery receipt confirmation.

19. GOVERNING LAW AND JURISDICTION

19.1 – This Agreement will be governed by and construed in accordance with the laws of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. Each of the Parties irrevocably submits to the non-exclusive jurisdiction and venue of the courts in Toronto, Ontario for the purpose of any suit, action or other proceeding arising out of or in connection with this Agreement or the subject matter hereof brought by either Party or their successors or assignees.

20. WARRANTIES

20.1 – Each Party represents, warrants and covenants to the other Party that it has the right and authority to enter into this Agreement and to grant all rights granted by such Party in this Agreement.

20.2 – Except as specifically set forth or referenced in this agreement, there are no representations, warranties, or conditions of either party, express, implied, statutory, collateral, or otherwise, regarding any matter, including any implied warranties or conditions of merchantability, merchantable quality or fitness for a particular purpose.

21. ASSIGNMENT

21.1 – Each Naborino may assign this Agreement at any time in its sole discretion.

21.2 – The Vendor may not, without the prior written consent of Naborino, assign this Agreement, in whole or in part. This Agreement will be binding upon and will inure to the benefit of the respective Parties, their respective successors in interest, legal representatives, heirs and assigns.

22. ENTIRE AGREEMENT

22.1 – This Agreement, together with any Schedules attached to this Agreement and any other agreements and documents under the Terms of Service, constitute the entire agreement between the Parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of any of the Parties in respect of the subject matter hereof.

23. SURVIVAL

23.1 – The expiration or termination of this Agreement will not affect or prejudice any rights or obligations which have accrued or arisen under this Agreement prior to the time of such termination and those rights and obligations will survive the expiration or termination of this Agreement. Notwithstanding any other provision of this Agreement, the General, Termination, Confidentiality, Indemnities, Limitation of Liability, Intellectual Property Rights, Governing Law, Warranties sections, and this Survival section, and all other provisions of this Agreement necessary to give effect thereto will survive the expiration or termination of this Agreement and remain in full force and effect.