Design Miami/ Podium x Shanghai Agreement
PODIUM EXHIBITION AGREEMENT
THIS EXHIBITOR AGREEMENT (“this Agreement”) sets forth applicable terms and conditions between Design Miami II, LLC (“Show Management”) and the exhibitor (“Exhibitor”). By accessing or using Show Management’s services that are described below, Exhibitor agrees to this Agreement.
NOW, THEREFORE, in consideration of the benefits to be realized by the respective parties hereto, Show Management and Exhibitor agree as follows.
- Governing Terms and Conditions
SELECTION PROCEDURES: Applications are due no later than June 3rd, 2021.The Event Curator will make the selection of exhibitors in the Show. Exhibitors will be informed, in writing, of the status of their applications on or before June 15th, 2021. Show Management may extend this date at its discretion.
APPLICATION COMPONENTS: Applicant’s Application consists of the following components, all properly completed on URL http://services.designmiami.com/application: Create My Account; Welcome Letter; Show Information and Application Terms; Exhibitor Terms and Conditions; Submit Proposal; Complete Application. Applicant’s Application shall not be deemed submitted unless and until all such components are completed by Applicant. “Applicant” means the Gallery identified upon creation of this account.
- Certain Defined Terms
As used in this Agreement:
“Contract” means this Agreement and the Application.
“Exhibitor’s Show Kit” means the manual containing supplementary information for the Exhibitors at the Show.
“Show Premises” means the No. 1 Waitanyuan (外滩源壹1号).
“Commission” shall have the meaning assigned to it in Section 7 of this Agreement.
“Contract Confirmation” means the document sent to the Exhibitor by Show Management that confirms which of Exhibitor’s objects will be displayed at the Show and the list price for each object.
“Event Curator” means the curator identified by Show Management to curate the Podium Event.
“Vetting Policy” means the matters set forth in Section 8 of this Agreement.
“Property Owner” means the owner of the Show Premises, as well as its affiliates and any lessees, sub-lessees, and managers of the Show Premises.
“Podium Exhibition” means group selling exhibition curated by Design Miami/ that is part of a Design Miami/ Podium Event.
Acceptance of Exhibitor’s Application by the Show is effective when Show Management receives the completed Application of that Exhibitor, and the Event Curator or Show Management accepts the Application in writing. The Event Curator and Show Management reserve the absolute right, in their sole discretion, to decline or reject any proposed Exhibitor whose products or services are not satisfactory to them.
Withdrawal prior to acceptance
Any applicant may withdraw its application prior to Acceptance without any cost/penalty.
- Exhibitor Benefits
The price to be paid by Exhibitor to Show Management is a Commission calculated on the basis of a Commission Percentage as of 20% of any and all “Gross Sales” during the Show and the “Calculation Period”.
The price to be paid by Exhibitor includes the following, to be provided by Show Management (or Show Management’s agents):
- Display buildout
- Exhibition staffing
- Website subscription on designmiami.com
- Representation in the Show Guide
- Inclusion in Design Miami/ Podium event press and marketing activities
- Design Miami/ VIP Invitations to the Show
From the date of the Show opening, for a ninety (90) day period thereafter, all works which Exhibitor offers for sale at the Show shall be offered for sale exclusively at the Show (during the Show period) and the Platform, and shall not be offered at or from any other location or online (with the exception of Exhibitor’s own website). Also as more particularly set forth below, all items offered for sale at the Show shall be sold only through Show Management, regardless of whether Exhibitor is present at the Show.
In consideration of the benefits to be received by Exhibitor hereunder, Show Management shall collect a Commission calculated as 20% of any and all “Gross Sales” realized by Exhibitor during the ninety (90) day period commencing on the date of the Show opening, whether sold through the Show, the Platform, or otherwise (the “Calculation Period”). Exhibitor’s “Gross Sales” shall mean the entire actual sale price, whether for cash, credit or otherwise, of all objects exhibited or offered for sale by or on behalf of Exhibitor at, on or from the Show, including, without limitation: (i) sales made following conclusion of the Show, whether on the Platform or otherwise, (ii) the sale price of any object sold by Exhibitor from another location, if such sale was not made at the Show for the purpose of depriving DM of the benefit of a sale that otherwise would be made in or from the Show, (iii) deposits, (iv) orders taken at the Show although filled elsewhere, and (v) the full value of all consideration other than money received. However, Gross Sales shall not include (a) any VAT, sales or excise tax imposed by any duly constituted governmental authority (provided that no income or franchise tax, capital stock tax, tax based upon gross receipts, assets or net worth, or similar tax shall be deducted from Gross Sales), (b) service or sales carrying charges, interest or other charges, paid by customers for extension of credit on sales, (c) postage, shipping, parcel post, freight, express or delivery charges collected from customers and actually paid by Exhibitor for such purposes, and (d) amounts retained by non-affiliated credit card companies as the fee (as a percentage of sales) charged to Exhibitor by such credit card companies for such service. No deduction shall be allowed for any uncollected or uncollectible amounts or reserves therefore, nor for cost of products or services sold, or other costs, charges or expenses of purchasing, financing, selling, transportation, overhead or taxes, except as expressly provided herein. Trade-ins shall not reduce the sale price of the item sold for purposes hereof. Layaway, credit and installment sales shall be included, regardless of when or whether full payment is received.
During the Calculation Period, DM shall have the right to receive weekly sales reports listing the items sold during the immediately preceding week, together with the sales price and the amount of any deposits, advance payments, and/or installment payments received on account of such sales (each such report is a “Weekly Report”). Exhibitor shall provide such Weekly Reports even if no such sales have been made during the period covered thereby. Not later than five days following the due date of each such Weekly Report, if any Commission is owed, Show Management shall have the right to collect such Commission. Each such payment shall be accompanied by a detailed calculation of the Commission.
Exhibitor shall keep accurate and complete books and records regarding its sales of any object displayed, or previously displayed at the Show (“Exhibitor’s Records”). Show Management may at any time, upon at least three (3) business days’ notice to Exhibitor, cause a complete audit or examination to be made of Exhibitor’s Records. During such audit, Show Management or its authorized representatives shall have full and free access to Exhibitor’s Records, and the right to require that Exhibitor furnish such information or explanation with respect to such items as may be necessary for a proper examination and audit thereof. If such audit or examination discloses that any of Exhibitor’s Weekly Reports omits or understates the amount of any Gross Sales by one percent (1%) or more, or if Exhibitor shall have failed to furnish any Weekly Report or shall have failed to prepare and maintain Exhibitor’s Records as required herein, Exhibitor shall pay Show Management the cost of such audit or examination, including travel and related expenses, and any deficiency in the Commission, with interest at the rate of 18% per annum.7. Works Exhibited
Show Management has the right to require complete details of any proposed works for inclusion and reserves the right to prohibit the exhibition of any object which does not meet the requirements in the judgment of the Vetting Committee (such judgment, the “Vetting Policy”).
- Authenticity: Exhibitor is strictly accountable for the authenticity of the objects which are shown or sold at the Show. The Exhibitor shall indemnify and hold Show Management, Show Premises and theProperty Ownerand each of their respective affiliates, officers, directors, employees, agents and contractors harmless against any claims whatsoever made with regard to the authenticity of any object, with regard to any misrepresentation of any irregularity made with respect to the sale of any object at the Show, as well as any expenses incurred by Show Management, including attorney’s fees. Exhibitor is required to abide by all laws regarding intellectual property rights. Any person who infringes intellectual property rights held by others can be held responsible under both civil and criminal law. If Exhibitor has good reason to believe that another exhibitor or other person at the Show is infringing Exhibitor’s intellectual property rights during the Show, Exhibitor may file an action for an injunction in order to prevent presentation of the infringing object. If the Exhibitor provides Show Management with evidence reasonably satisfactory to Show Management that Exhibitor already has a legally binding judgment forbidding the presentation of a certain object, the Show Management will advise the infringing exhibitor to remove the object from the stand. No infringing objects may be sold or offered for sale at the Show. The presentation or sale of infringing objects at the Show is a material breach of the Exhibitor’s obligations. Exhibitor agrees to indemnify and hold Show Management harmless from any damages, costs, expenses (including reasonable attorney fees), judgments and/or settlements, which Show Management incurs as a result of claims that Exhibitor is showing or selling infringing objects.
- Vetting Committee: Show Management will appoint the appropriate Vetting Committee with respect to the different categories of exhibits to be shown. The Vetting Committee has the right to examine any and all objects at any time throughout the length of the fair. During the vetting process, exhibitors must be readily available in case the committee wishes to consult with them. Exhibitors must abide by the final decisions of the Vetting Committee.
- Labeling: All exhibitors mustprovidea description listing of each object displayed or to be displayed . Each object must be properly attributed and correctly described including an account of the date in which it was made, country of origin, description of materials and statement of condition of the original form. No pieces with excessive restoration are permitted to be displayed. During the examination process, the Vetting Committee has the right to evaluate label descriptions for objects displayed to ensure that attributions and condition descriptions are not misleading.
- Restoration/Condition of Objects: Any object that has had major restoration is not permitted to be shown by an exhibitor. The following constitutes examples of major restoration: any object that has been so restored as to exclude evidence of serious or extensive damage, marriages of parts of any kind, any subtractions, or later enrichments and any alterations which change the original character of an object to enhance its value.
- Visual or Fine Art: Any object that qualifies within the Visual or Fine Art category is not permitted to be exhibited at the Show. If any Exhibitor would like to exhibit work that may fall within this description, it should consult Show Management before shipping the object to avoid having the object removed during vetting.
- Re-editions: Neither re-editions nor reproductions are permitted to be exhibited at the Show.
Design Miami/ accepts late editions of historical work on a case-by-case basis considering these guidelines:
* The work should be created in collaboration with the original designer, not the designer’s family or estate
* The work should have existed only as a prototype before the contemporary edition is produced.
* The work can be made in an edition of no more than 30 pieces.
Extremely rare vintage reeditions will be accepted only with the express written approval of Show Management. If an Exhibitor plans to exhibit work at the Show that may qualify as a reedition or late edition of an historical work, please notify Show Management before shipping so the work may be reviewed and approved. Unapproved work in this category is at risk of being remove during vetting.
- Period for Consideration: Show Management permits collectible and rare historic design from the turn of the twentieth century to the present day. Works created before the turn of the twentieth century are permitted in the show at the discretion of Show Management.
- Work for Sale: Objects exhibited in the Show must qualify as examples of collectible design. Collectible design is defined by the Show as works that exhibit an aesthetic research into a functional perspective. These objectsinclude, but are not limited to,unique prototypes or artist proofs, produced in finite quantities, no longer in production, or rare examples of historic industrial manufacture.
- i. Examination: If the Vetting Committee is in all agreement that an object displayed is of deceptive origin, Show Management will ask for the removal of the object. The Exhibitor bears the burden of proving an object’s authenticity. When offering the opinions of an expert about an object to the Vetting Committee, it is not enough for anExhibitor to attribute a statement to a particular expert. A supporting letter, signed by the expert concerned, must be supplied. If the Vetting Committee is evenly split in its deliberations about an object, a member of the Gallery Committee will be consulted.If all experts agree that the object is of deceptive origin, the Exhibition must remove such object at its own expense, and Show Management is not liable for its decision or the Exhibitor’s expenses.
8. Admission to the Show Premises
If the Exhibitor desires to attend the Show during set-up period or otherwise, Exhibitor must obtain from Show Management the necessary credentials to admit its representatives and contractors to the Show Premises. Show Management reserves the right to expel or to refuse to admit any person notwithstanding that person’s possession of the pass. Passes will only be issued to authorized individuals who have been submitted for Show Management review prior to registration. Sharing of passes with unauthorized individuals may result in expulsion from the Show.
9. Show dates and exhibition hours
Thursday, November 4, 2021
VIP Preview: starting 4pm
By invitation only
Regular Show Days:
Friday, November 5 – Sunday November 14, 2021
Operating Hours - TBC
Exhibitor will indemnify and hold harmless Show Management and all other “Indemnitees” against any and all claims, liabilities and losses which either or both may incur as a result of or incident to Exhibitor’s participation in the Show or exercise of any of its rights or privileges as an Exhibitor at the Show, including, without limitation, as a result of: any claim made in respect of damage to persons and property caused by the Exhibitor or its staff or contractors, employees, or agents, or exhibits and/or any materials delivered to the Show Premises by on or behalf of the Exhibitor; any breach of this Agreement or other applicable terms by the Exhibitor; or any claim for copyright infringement, for which Show Management may be sued or held liable relating to work submitted by or through the Exhibitor; or any acts or omissions of the Exhibitor or its staff or agents in connection with the Show during the period of occupation or otherwise. “Indemnitees” means Show Management, Show Management’s parent, subsidiaries and affiliates, and the Property Owner, and their respective members, partners, officers, directors and employees.
It is understood that Show Management and its contractors are not insurers, and that Exhibitor is responsible. Show Management will not be responsible for condition, count, or content. Therefore, all materials should be properly insured against fire, theft and all hazards while in transit and to and from the Exhibitor’s Booth and for duration of the Show.
Exhibitor must effect and maintain adequate public liability insurance and all other relevant insurance, including: (i) general liability insurance having limits of not less than $1,000,000; and (ii) workers compensation insurance as required by applicable law; and (iii) naming Design Miami II, LLC, Design Commerce Technologies, Inc., and any other applicable third parties identified by Show Management as additional insureds, in order to keep himself/herself incurred to cover his/her liabilities under this Agreement. Show Management may at any time at its sole discretion require the Exhibitor to provide it with a copy of his/her insurance policy.
Except for its own gross negligence or willful misconduct, neither the Property Owner nor Show Management shall have any liability whatsoever to Exhibitor or any other party arising from use of the premises by Show Management, Exhibitor, or any other party in connection with the Show. Show Management is not the agent or contractor of Property Owner, and Property Owner shall have no responsibility for any action or inaction of Show Management, with respect to the Show or otherwise. Property Owner is not obligated to provide any security whatsoever for the Show or otherwise. Show Management does not exclude its liability (if any) to the Exhibitor: for personal injury or death resulting from Show Management’s negligence; for any matter which it would be illegal for Show Management to exclude or to attempt to exclude its liability; or for fraud by Show Management. The liability of Show Management to Exhibitor for breach of this Agreement or otherwise shall not exceed the total Commission owed by Exhibitor to Show Management under this Agreement.
Exhibitor shall be obliged to comply with all statutory, official, professional and other valid accident prevention regulations and other safety requirements during set-up and dismantling and for the duration of the Show.
14. Show guide and visitor information
Each Exhibitor will receive representation in the online guide. The Show Management reserves the right to reject or amend any show guide information.
Show Management will attempt to arrange reasonable security for the Show, but Show Management shall have no other duty or obligation with respect to security. Without limitation of the foregoing, Show Management is not responsible for any action, inaction, negligence or misconduct by any security guards, or if security guards do not keep agreed schedules. To maintain security, once installation commences, nothing can be removed from the Show Premises unless accompanied by the appropriate pass, until the dismantling is complete. The Exhibitor assumes all security risks that cannot reasonably be eliminated by the security services provided by Show Management.16. Electrical services
Show Management will use reasonable endeavors to provide common area lighting, but shall not be liable to any loss or damage due to failure or interruption of any service. No Exhibitor is allowed to install its own power connection. Fire, safety and security regulations must be followed.17. Packing, Shipping, Etc.
Without limiting the generality of any other provision of this Agreement, Show Management shall have no responsibility for, and Exhibitor is solely responsible for insuring, packing, shipping, handling, unpacking, installation, strike, return shipping and shipping to buyers for all objects provided by it for exhibition at the Show. This includes, without limitation, insuring, packing and shipping of Exhibitor’s objects from Exhibitor’s gallery to the Show, unpacking and installing such objects at the Show, packing and shipping objects from the Show to buyers, and packing and shipping unsold objects from the Show back to Exhibitor’s gallery. Information about preferred shippers designated by Show Management will be provided.18. Material Handling Services
Show Management and its contractors shall not be responsible for loss or damage to uncrated and/or unskidded materials, materials improperly packed, glass breakage or concealed damage. Show Management and its contractors shall not be responsible for loss or disappearances of, or damage to, Exhibitors’ materials. There may be a lapse of time in between the delivery of shipment(s) to the Show and the arrival of the Exhibitor’s representative and during such time the shipment(s) will be left unattended. Neither Show Management nor its contractors shall be responsible for any loss or damage which may occur during such period or at any other time. Show Management and its contractors shall not be responsible for loss or disappearance of or damage to Exhibitor’s materials.
All bills-of-lading covering outgoing shipments which are given to Show Management by Exhibitors will be checked for quantity at the time of pick-up, and Show Management or its contractors will adjust the quantities of items on any bill-of-lading submitted to conform to the actual count of such items in at the time of pick-up. It is possible that there will be a lapse of time between the completion of packing and the actual pick-up or materials for loading on to a carrier, and during such time the shipment(s) will be left unattended Show Management and its contractors shall not be responsible for any loss or damage to Exhibitor’s materials.
Show Management and its contractors shall not be responsible for ordinary wear and tear in handling of materials nor for loss, delay, or damage due to fire, theft, windstorm, water, vandalism, acts of god, mysterious disappearance, strikes, lockouts, or work stoppage of any kind, or other causes beyond its control. Any amounts payable to Show Management for handling fees and charges are based on the value of the material handling services and the scope of the liability as herein set forth and are unrelated to the value of the Exhibitor’s property being handled. Since it is impractical and extremely difficult to fix the value of each shipment handled by Show Management or its contractors, it is agreed that if Show Management or its contractors should be found liable for loss or damages to Exhibitors materials, the liability shall be limited to a sum equal to $.50 per pound, per article with a maximum liability of $50.00 per item or $1000.00 per shipment, whichever is less, as agreed upon liquidated damages and not as a penalty, as Exhibitors’ exclusive remedy.
It is further agreed that Show Management and its contractors are not responsible should loss or damage occur unless such loss or damage results solely from the gross negligence of Show Management or its contractors in the actual physical handling of the items comprising Exhibitor’s shipment(s) and not for any other claim or cause of action whatsoever and that any such responsibility shall be limited as set forth above. Any claim for loss or damage must be submitted to Show Management prior the close of the show. Without limiting any other rule or regulation, Show Management and its contractors shall not be liable to any extent whatsoever for any actual, potential or assumed loss of profits or revenues or for any consequential damages or collateral costs which may result from any loss or damage to an Exhibitor’s material which may make it impossible or impractical to exhibit same at the Show or otherwise.
The Exhibitor agrees in connection with the receipt, handling, temporary storage and reloading of Exhibitor’s materials that any services provided by Show Management and its contractors will be as Exhibitor’s agent and not as bailee or shipper. If any employee of Show Management or its contractors shall sign a delivery receipt, bill-of-lading or other document for Exhibitor, Exhibitor agrees that Show Management or such contractor does so as the Exhibitor’s agent and the Exhibitor accepts full responsibility therefore. In order to expedite removal of materials from the Show Premises, Show Management shall have the authority to change designated carriers from that designated by Exhibitor, if such carriers do not pick up on time. Where the Exhibitor does not arrange for disposition of Exhibitor’s materials, those materials may be taken to a warehouse to await Exhibitor’s shipping instructions and Exhibitor agrees to be responsible to pay for charges relating to such handling at the warehouse. No liability will be assumed by Show Management or its contractors as a result of such rerouting or handling.19. Sales of goods
Exhibitor hereby consigns to Show Management the objects offered for sale by such Exhibitor at the Show, for sale to third party buyers on Exhibitor’s behalf, as set forth herein. Show Management shall provide, operate and control a point of sale system for such Exhibitors, whereby Show Management shall collect amounts paid by buyers for Exhibitor’s objects which may be sold at the Show remit applicable sales tax thereon (if any), deduct and pay to itself the “Commission” payable to Show Management as described above, as well as a credit card processing fee equal to 3% of the gross sales price of any object sold (the “Credit Card Processing Fee”), and remit the balance to Exhibitor. Exhibitor shall also be responsible for all packing, shipping, handling and insurance charges as set forth above. All objects offered by Exhibitor at the Show must be sold through Show Management, regardless of whether Exhibitor is present at the Show.
Show Management is authorized to sell any object for a price not lower than the price designated for that object in the Contract Confirmation. Show Management shall not sell any object for a lower price, unless authorized in writing by Exhibitor. Exhibitor must designate a representative who is authorized to approve a lower price, which representative shall be available in person, by telephone, or by video conference at all times during the Show hours in order to receive and, if applicable, approve, any lower prices offered by a prospective buyer.
Show Management shall not be responsible for refunding payment, or otherwise making any payment to any buyer on account of any objects sold to such buyer by or on behalf of Exhibitor, or any other liability to any buyer, arising out of defects, breach of any express or implied warranties, or any other cause whatsoever (“Buyer Claims”) and Exhibitor agrees to indemnify, defend, and hold Exhibitor harmless of, from and against any and all Buyer Claims.
As more particularly set forth in the additional documentation and subject to applicable terms and conditions, the works offered by the Exhibitor in the Show shall also be made available for sale online on the Platform.20. Design Miami/®Name and Logo
In consultation with Show Management, and in accordance with the immediately following paragraphs, Exhibitor shall have the temporary right to use the name and logo of Design Miami/® (the “Name and Logo”) in its internal and external public relations and advertising material worldwide, solely for the purpose of promoting its participation in the Show. Specifications and details will be additionally provided by Show Management. Exhibitor’s rights to use such Name and Logo in accordance with this Agreement are non-exclusive, are not assignable or transferable, constitute a temporary license only, confer no ownership rights, and terminate upon termination of the Show. Any and all use by Exhibitor of the Name and Logo, as well as advertising material, including sketches and/or descriptions of such proposed uses (including, but not limited to the placement thereof) shall be submitted to Show Management in advance in a timely manner, for written approval by Show Management. Show Management has the right to issue instructions and shall have the right of inspection in relation to use of such Name and Logo and other materials. It is understood between the Parties that Show Management may at any time ask Exhibitor to suspend or block the publicity related to the Show or otherwise, including but not limited to Exhibitor’s use of the Name and Logo and advertising material, if such publicity or use, in the discretion or Show Management, does or may damage, disparage, detract, discredit or diminish the prestige or reputation of Show Management, or its Name and Logo or advertising materials or does not comply with this Agreement. Upon instructions of Show Management, Exhibitor shall prevent any publicity or use of the Name and Logo or advertising materials on or through press, video, radio or internet or otherwise in connection with the Show or otherwise.21. Exemption
Show Management reserves the right to impose additional rules and regulations for participation in the Show, in the interests of the Show, for any reason. Exemption from any one or more of such terms and conditions may be granted at Show Management’s discretion, but will only be effective if given in writing.22. Force Majeure
In the event of abandonment, postponement, extension, or limitation of the Show or use of the Show Premises or any part thereof or removal of any part of the Show (including but without prejudice to the generality of the foregoing) or abandonment, postponement, extension or limitation or removal of any of the services provided therein resulting from the event of war, fire, national emergency, labor dispute, strike, lockout, civil disturbances, acts of terrorism, inevitable accident, the non-availability of the Show Premises, governmental requirements, epidemics or pandemics, including, without limitation, the COVID-19 pandemic existing on the date of this Agreement, or any other cause not within the control of Show Management (“Force Majeure Event”), the Show Management shall be under no liability to the Exhibitor in respect of any actions, claims, losses including consequential losses, (including loss of profits), costs or expenses whatsoever which may be brought or suffered or incurred by the Exhibitor as the result of the happening of Force Majeure Event.23. Withdrawal from this Agreement
Without prejudice to its other rights and remedies, Show Management shall be entitled forthwith to rescind its acceptance of an Application and/or terminate an Agreement with an Exhibitor by written notice to the Exhibitor at any time if:
-acceptance to the Show was based on false or misleading information provided by the Exhibitor;
-the Exhibitor fails to comply with this Agreement;
-the Exhibitor ceases, or threatens to cease, to carry on business;
-if Exhibitor is or becomes delinquent in any payment owed to Show Management, or to any affiliate of Show Management, or to any third party providing logistics or other services, with respect to this Agreement or any other contract between Exhibitor, Show Management, or any affiliate of Show Management; or
-if the Show is cancelled for any reason.
If Exhibitor withdraws, for any reason, after this Agreement has been signed, Exhibitor is liable for any and all amounts due or coming due to Show Management under this Agreement, as well as for any ancillary costs incurred.24. Consequences of Termination
In the event that the Show Management terminates this Agreement for any of the reasons set out in clause 23 above, Exhibitor shall leave the Show Premises as soon as is reasonably practicable, and in any event no later than 12 hours from the receipt of written notice to terminate, removing all objects at his/her own expense, and the Show Management will have no further obligation to Exhibitor.25.Applicable Law and Place of Jurisdiction
This Agreement is governed by and construed in accordance with the laws of the State of Florida, and the parties hereby irrevocably submit to the exclusive jurisdiction of the state and federal courts in Miami-Dade County, Florida and waive any objection to proceedings in such courts on the grounds of venue or on the grounds that the proceedings have been brought in an inappropriate or inconvenient forum.
Exhibitor understands that no representative, agent, officer, employee, contractor or guest of Exhibitor shall be admitted to the Show Premises unless such person shall execute anAssumption of Risk and Waiver of Liability Relating to Coronavirus/COVID-19 in the form attached to this Agreement.
Assumption of Risk and Waiver of Liability Relating to Coronavirus/COVID-19
Design Miami II, LLC (“DM”) has put in place preventative measures intended to reduce the spread of COVID-19 at the 2021 edition of the Design Miami Fair (the “Fair”); however, DM cannot guarantee that any individual physically present at the Fair or any Fair-related activities will not become infected with COVID-19. Further, attendance at the Fair or any Fair-related activities could increase the risk that any such individual might contract COVID-19.
By signing this agreement, I acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that I may be exposed to or infected by COVID-19 by attending the Fair and/or any Fair-related activities, and that such exposure or infection may result in personal injury, illness, permanent disability, and death. I understand that the risk of becoming exposed to or infected by COVID-19 at the Fair or any Fair-related activities may result from the actions, omissions, or negligence of myself and others, including, but not limited to, DM, exhibitors, and their respective employees, agents, contractors and representative, as members of the public attending the Fair or any Fair-related activities.
I voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to me (including, but not limited to, personal injury, disability, and death), illness, damage, loss, claim, liability, or expense, of any kind, that I may experience or incur in connection with my attendance or other participation in the Fair or any Fair-related activities (“Claims”). I hereby release, covenant not to sue, discharge, and hold harmless DM, its employees, agents, and representatives, of and from the Claims, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or relating thereto. I understand and agree that this release includes any Claims based on the actions, omissions, or negligence of DM, its employees, agents, and representatives, and/or whether a COVID-19 infection occurs before, during, or after attendance at the Fair or any Fair-related activities.
eCommerce Seller Terms and Conditions
- THIS AGREEMENT. Any person which sells certain merchandise (the “Items”) on designmiami.com or other pages of Design Miami’s website (such site, the “Platform”, and such person, a “Seller”) must accept these Seller Terms and Conditions in their entirety. Your use of the Platform constitutes your express agreement to the Subscription Letter and these Seller Terms and Conditions (together, the “Agreement”). By using and accessing the Platform, you agree that you have read, understood and agree to be bound by and comply with this Agreement, in addition to any other applicable terms. This Agreement is a binding contract between you and DM.
- THE PLATFORM; DM ROLE.
- The Platform provides a digital venue for Sellers to list Items for sale to potential buyers (“Buyers”), either through a specific Seller page (“Seller Page”) or otherwise on the Platform. The sole role of DM is to make the Platform available. Seller’s right to list, offer and sell Items on the Platform is subject to the limitations, terms and conditions set forth in the Agreement. DM is not an agent of either the Buyer or the Seller for any purpose. DM is not responsible for any negligence, misconduct or other wrongful or inappropriate behavior by any Buyer or Seller, nor is DM responsible for the actual sale of Items or the acts or omissions of Buyers or Sellers. DM also does not control the information provided by Sellers or Buyers. DM is not responsible for the transfer of legal ownership of Items from a Seller to a Buyer.
- By using the Platform, Buyers select and purchase Items marketed by Sellers at the terms and conditions listed on the Platform. The Seller is responsible for accurately describing the Items it is offering for sale and for delivering the Items to the Buyer in accordance with the arrangements between Buyer and Seller.
While the Platform may provide certain tools in order to assist Seller to calculate and collect as part of a Sale (defined below), applicable taxes, fees and charges for the sales of its Items, including, without limitation, sales tax, use tax, internet sales tax, VAT, import/export duty, and/or regulatory permit fees to any applicable authorities (the “Seller Charges”), Seller acknowledges that DM is not responsible for the determination, collection, remittance or payment to applicable authorities of any and all such applicable Seller Charges, and that Seller remains responsible for same.
- DM has sole control over the look, feel, content, operation and evolution of the Platform, and may modify the Platform and its content in its sole discretion. For example, DM may, but is not obligated to, offer services and tools that aid Sellers to sell, and Buyers to buy, Items on the Platform. These services and tools may include, as examples, packing and shipping solutions for sales of Items on the Platform.
- To the extent DM offers recommendations for services of third-party service providers, the parties confirm that DM neither has control over, nor is liable or responsible for, the acts or omissions of such third parties.
- DM is independent from both the Seller and the Buyer and no agency, partnership, joint venture, employee-employer or franchisor-franchisee or fiduciary relationship is intended or created by this Agreement, or by any other agreement between DM and a Buyer or a Seller, or by the operation of the Platform by DM. The provisions of the Commercial Agents Directive (86/633/EC) as implemented in any European jurisdiction are expressly excluded from this Agreement.
- TERM OF AGREEMENT. Seller shall be permitted to use the Platform as provided herein during the term of this Agreement as specified in the Subscription Letter. Such term may be renewed in accordance with the renewal terms of the Seller’s subscription.
- MONETARY OBLIGATIONS TO DM. Seller shall pay to DM all commissions and fees, specified in the Subscription Letter, as well as any other amounts which may become due to DM from Seller under this Agreement, including the following:
Commission: For every Sale (defined below), Seller shall pay a commission to DM on the Purchase Price (the “Commission”) that is identified in the Subscription Letter. The Commission shall be paid to DM in accordance with the procedures set forth below in Section 5. “Sale” is defined as an event on the Platform where a Buyer completes the transaction steps of a purchase of an Item that include, without limitation, evidence to show intent to purchase (for e.g., hitting “Buy” button and entering their credit card or other financial details and shipping address), and a confirmation writing that is issued to Buyer through the Platform of the completed transaction. “Purchase Price” is defined as the price at which an Item sold on the Platform, exclusive of applicable Seller Charges (defined below) or other charges.
b. Introductory fee: Seller agrees that a Commission shall be owed for any interaction for a potential buyer generated on the Platform, including, but not limited to, an inquiry on the Platform that results in a Sale, regardless of whether the Seller has interacted with the potential Buyer previously whether on or off the Platform, or the Sale was a purchase of an Item or alternative item(s) that Seller offered to such potential buyer that were not listed as Items on the Platform. If the sale was consummated off-Platform, Seller agrees to provide DM with written notice about such sale within 2 days of such sale, and pay the applicable Commission to DM no later than thirty (30) days after receipt of DM’s invoice. DM shall have the right to investigate whether Seller has diverted any potential sales off-Platform, and, if DM identifies that Seller has undertaken such diversions, DM shall have the right to charge Seller for the outstanding Commissions and/or terminate for cause Seller’s subscription and access to the Platform pursuant to the Subscription Letter.
- Payment processing: Once a Buyer undertakes a Sale, the Platform shall issue an invoice for such transaction. The Platform shall collect amounts paid by Buyers for Sales, which shall include, the Purchase Price, applicable Seller Charges (defined below), and other applicable charges (the “Gross Sales Price”). From such amount, DM shall deduct the applicable Commission and any applicable Transaction Charges (defined below), as well as a credit card handling fee equal to 3% of the Gross Sales Price. The balance shall be remitted to Seller upon receipt of cleared funds by DM.
- ELIGIBILITY. No Seller shall be under the age of 18. By entry into this Agreement, you represent and warrant that you are at least 18 years of age. The Platform is not directed to children under the age of 18 and does not knowingly collect information from such children.
- LISTING AND SELLING.
- a.Seller agrees to read and comply withthe terms applicable to the use of the Platform, that, in addition to this Agreement, govern Seller’s use of and conduct on the Platform.
- b. The parties acknowledge that Seller is permitted to offer trade pricing to a Buyer who confirms that they are part of the Trade Program (such Buyer, an “Authorized Trade Buyer”). Guidelines for such trade pricing, including how a Buyer confirms they are an Authorized Trade Buyer, shall be provided to Seller in a separate writing, and for any Sales (defined below) by an Authorized Trade Buyer, the calculation of any applicable Commissions shall be based on such authorized trade pricing.
- c. Seller represents and warrants that: (a) Seller is legally able to sell and convey full legal title to the Item(s) Seller lists for sale on the Platform, (b) each Item Seller lists is currently available for sale, and (c) Seller will sell the Item on the terms listed.
- d. Without limiting DM’s other rights and remedies, DM reserves the right in its sole and absolute discretion, but has no obligation, to cancel or revoke any listing for potential fraudulent activities or regulatory reasons or errors.
- SELLER GUARANTEE. The following requirements of this Article 7 constitute the “Seller Guarantee”:
i. Seller must have all rights to the Seller Content and such Seller Content shall not violate the Intellectual Property Rights of any third party;
ii. Seller Content must be true, accurate, and not misleading;
iii. Seller Content must not be considered a criminal offense, give rise to civil liability, violate any law, or disparage DM or its vendors, partners, Sellers, Buyers or affiliates; and
iv. Seller Content must not misrepresent, mislead or lie about its identity or affiliation with another person or entity.
b. Seller represents and warrants that it owns or otherwise controls all of the rights to the Seller Content that it provides to DM; that such Seller Content is accurate; and that such Seller Content complies with the Seller Guarantee. DM has the right but no obligation to monitor and edit or remove any Seller Content. DM does not endorse, or support any views, opinions, commendations, or advice that may be in Seller Content, nor does it vouch for its accuracy. DM further does not endorse, support or vouch for the reliability, usefulness or safety of any Seller Content, or for the intellectual property rights of Seller. DM shall have no responsibility or liability for any Seller Content provided by any Seller or any other party. Each Seller is responsible for any Seller Content it provides to DM for posting on the Platform or otherwise. DM is not responsible for the personally identifiable or other any information any Seller submits as Seller Content, and DM reserves the right to refuse or remove any Seller Content generated by any user at DM’s sole discretion. Once any Seller posts Seller Content on the Platform, that Seller Content becomes public. DM is not responsible for keeping any Seller Content confidential. If any Seller does not want anyone to read or see that Seller Content, it should not submit it to the Platform. DM has sole discretion as to whether Seller Content or a specific Item meets the requirements set forth herein and DM’s judgment is binding and conclusive. Failure to object to any Seller Content shall not be deemed a waiver of DM’s right to remove or require removal of that Seller Content.
c. All Items listed on the Platform must meet the following criteria:
i. Be either owned by the listing Seller or the listing Seller must have all necessary rights to offer and sell such items on behalf of another party and, upon a valid purchase, Buyer must receive good legal title to the offered goods;
ii. Be genuine and as-advertised by the Seller;
iii. Be accurately, lawfully, comprehensively, and fairly described by the listing Seller;
iv. Not disparage any person or groups, nor incite intolerance, hatred or violence
v. Comply with all import (into the country into which they are sold) and export (out of the country from which they are sold) laws, including without limitation cultural patrimony laws;
vi. Be available for purchase; Sellers shall keep a current inventory and if an Item is no longer available for sale (whether due to a sale on the Platform, the Item is no longer in Seller’s inventory, or otherwise), the Seller agrees to remove the listing of such Item from the Platform; and
vii. Not contain any hazardous materials or endangered animal parts.
d. Sellers shall comply with the following business practices.
i. Sellers shall treat all Buyers and DM employees or representatives with respect and without discrimination; Sellers shall not disparage Buyers, DM, or DM employees;
ii. Sellers shall commit to use commercially reasonable efforts to answer Buyer inquiries within 1 business day;
iii. Sellers shall ship/fulfill all orders within a reasonable period of time after the close of the Item’s sale, except in emergencies. Seller is responsible for packing Items in a manner adequate to protect the Item from damage in shipment and for delivering packed Items to the shipper in accordance with the industry best practices. Shipping and handling fees must be fair and reasonable;
iv. Sellers stand behind the descriptions of the Items they list;
v. Sellers shall maintain appropriate business and liability insurance and must obtain insurance on all shipments.
vi. Sellers must provide and maintain accurate and current contact information; and
vii. Sellers must not send SPAM and must comply with the CAT-SPAM Act of 2003 and EU Directive 2002/fi8 on Privacy and Electronic Communications. Buyer information provided to a Seller may only be used to negotiate with a Buyer and/or process a transaction and cannot be used for marketing purposes without the prior written consent of DM and Buyer.
e. The Platform may be used only for lawful purposes by persons authorized by DM. DM specifically prohibits any use of the Platform, and requires all users to agree not to use the Platform, for any of the following:
i. Supplying any information or using a payment mechanism which is incomplete, false, inaccurate or not its own;
ii. Impersonating another person;
iii. Constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise, violate any city, state, national or international law or regulation, or which fails to comply with accepted Internet protocol;
iv. Supplying material that is copyrighted or otherwise owned by a third party unless Seller is the copyright owner or has the permission of the owner to post it;
v. Supplying material that reveals trade secrets, unless the Seller owns them or has the permission of the owner; and
vi. Supplying material that infringes on any other intellectual property, privacy or publicity right of another.
- SELLER’S PRODUCTS. Sellers shall only offer and sell Items that are appropriate for the Platform and comply with the requirements of this Agreement. Items sold on the Platform must: (a) qualify as high quality design and/or collectible, fitting into categories that are then represented on the Platform (including, without limitation, furniture and lighting, objet d’art, jewelry & watches), (b) deemed to be neither re-editions nor reproductions, and (c) meet any additional requirements herein including in the Seller Guarantee (above). By posting an Item for sale, the Seller represents that it meets the requirements of the Platform. Sellers shall not list any Items or consummate any transaction initiated on the Platform or use the services provided by DM that violates or could cause DM to violate any applicable law, statute, ordinance or regulation. DM shall have sole discretion as to whether a specific Item meets the requirements set forth herein, and if it determines that a specific Item does not meet the requirements, DM is permitted to remove the listing and its judgment will be binding and conclusive. In addition, DM listing standards may change from time to time in its sole discretion due to evolution of the Platform and otherwise.
- SELLER CONTENT, DESCRIPTION AND PICTURES. Sellers will upload to the Platform images and information relating to the listed goods. DM reserves the right to reformat or adapt the data and images received in order to accommodate the format of the Platform. DM further reserves the right to publish images and information relating to Items as it deems fit. DM does not control and is not responsible for any defect or mistake in the description of any Item; Sellers are solely responsible for Item descriptions, listings and all other Seller Content as defined in the Seller Guarantee. Listings shall include only text descriptions, graphics, pictures and other content relevant to the description of the specific permissible Item. Superfluous content must be avoided. Seller hereby grants to DM a perpetual, non-exclusive, worldwide, irrevocable, royalty-free license to use the listing information and any and all Seller Content posted for all lawful purposes of DM, including, without limitation, in advertising and marketing and to publish images and information in other categories/areas of the Platform as DM deems fit. Any images created/produced or modified by DM are DM’s sole property, and, unless otherwise approved by DM in writing, may only be used on the Platform or as provided in this Agreement.
- SELLER RESPONSIBLE FOR ACCURACY. The Seller shall use best effort to maintain the accuracy of the information provided to DM, including, but not limited to, information relating to the availability of Items listed for sale. Seller is responsible for all costs or damages associated with any inaccuracy in the description of an Item or inauthentic items.
- EXCLUSIVITY AND PRICE PARITY; LOWER ADVERTISED PRICE. All Items must be posted exclusively with DM and the Platform for at least 90 days before they can be shown on any other website (other than Seller's own website), and if an Item is listed by Seller on any non-DM site (including Seller’s own website) or available in store, in compliance with this Article, the DM listed price shall be the same or lower than any Seller listing for that Item on any non-DM site or in store; provided, however, this Article shall not apply to any Sellers participating in the DMBX program.
- RETURNS. Each Seller is required to set its own returns policy in connection with sales of their Items and to clearly identify its returns policy on the listing of its Items. Sellers are not required to accommodate returns, but, in such cases, agree to clearly indicate such no-returns policy on the listing of its Items. For Sellers participating in the DMBX program, the returns policy for the DMBX program (which shall be separately identified in writing) shall apply.
- MODIFICATION OF PLATFORM; RULES OF USE. DM reserves the right, for any reason, in its sole discretion and without notice to Sellers, to terminate, change, suspend or discontinue any aspect of the Platform, including, but not limited to, information, products, data, text, music, sound, photographs, graphics, video, messages or other materials ("Content"), features and/or hours of availability, for any reason and in its sole discretion, and DM will not be liable to Sellers or to any third party for doing so. DM may also impose rules for and limits on use of the Platform or restrict Sellers’ access to part, or all, of the Platform without notice or penalty. DM has the right to change these rules and/or limitations at any time, in DM’s sole discretion.
- SERVICE UNAVAILABILITY. DM relies on the Sellers for information regarding Items, and uses its best efforts to see that the Sellers’ descriptions are posted as provided by the Seller. However, due to the nature of the internet, occasional glitches, service interruptions or mistakes may cause unintended inaccuracies to appear on the Platform. DM has the right to correct inaccuracies or mistakes that come to its attention. You acknowledge that temporary interruptions in the availability of the Platform or DM’s services may occur from time to time as normal events. Also, we may decide to cease making the Platform or any portion of the Platform available at any time and for any reason, or to cease making available any service to Sellers. Under no circumstances will DM be liable for any damages due to such interruptions or lack of availability on the Platform or in DM’s services.
- REFUSAL OF TRANSACTION. DM reserves the right to refuse the posting of an Item or remove any Item from the Platform or to amend any content on the Platform at any time in its sole discretion. DM may refuse to provide services to anyone at any time in its sole discretion. DM will not be liable to any Seller, because it has refused a posting, removed any Item from the Platform, amended any of the Content, denied access to the Platform or DM’S services, or terminated a Seller’s subscription pursuant to the terms of the Subscription Letter.
- COPYRIGHT INFRINGEMENT. DM responds to notices of alleged copyright infringement as required by the United States Digital Millennium Copyright Act. If a Seller believes that its work has been copied in a way that constitutes copyright infringement, please provide the following written information to DM’s Copyright Agent (whose address is below) : (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that Seller claims has been infringed upon; (iii) a description of where the location on the Platform or the material that Seller claims is infringing; (iv) Seller’s address, telephone number, and e-mail address; (v) a statement by Seller that Seller has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by Seller, made under penalty of perjury, that the above information in Seller’s notice is accurate and that Seller is the copyright owner or authorized to act on the copyright owner’s behalf. The address of DM’s Copyright Agent is: If by e-mail, email@example.com; If by mail, to Copyright Agent, Design Miami II, LLC, 3841 NE 2nd Avenue, Suite 401, Miami, FL 33137 USA.
- PROPRIETARY RIGHTS. As between the Seller and DM or any other company whose marks appear on the Platform, DM is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the Platform, and is the copyright owner or licensee of the Content and/or information on the Platform, unless otherwise indicated. Except as otherwise provided herein, use of the Platform does not grant Seller a license to any Content, features or materials Seller may access on the Platform and Seller may not modify, rent, lease, loan, sell, distribute or create derivative works of such Content, features or materials, in whole or in part. Any commercial use of the Platform is strictly prohibited, except as expressly allowed herein. Seller may not download or save a copy of any of the Content or screens for any purpose except as otherwise approved in writing by DM. If Seller uses the Platform other than as provided herein, Seller may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. DM does not grant any license or other authorization to any user of DM’s trademarks, registered trademarks, service marks, other copyrightable material or any other intellectual property by including them on the Platform. The information on the Platform including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including copyright law. Product names, logos, designs, titles, graphics, words or phrases may be protected under law as the trademarks, service marks or trade names of Design Miami II, LLC or other entities. Such trademarks, service marks and trade names may be registered in the United States and in other jurisdictions. If DM provides to Seller its trademarks, service marks, trade names, or other copyrightable material for Seller’s use, Seller may use these in the format in which they are provided and in compliance with any accompanying instructions given. Seller shall not display or use DM’s trademarks, service marks, trade names, other copyrightable material or any other intellectual property in any manner without DM’s prior written permission unless DM has distributed such material to Seller for such use.
- LINKS TO THIRD PARTY SITES. Seller may be able to link to third party websites (“Linked Sites") from the Platform. Linked Sites are not, however, reviewed, controlled or examined by DM in any way and DM is not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply DM’s endorsement of or association with the Linked Sites. It is Seller’s sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall DM be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. Seller should direct any concerns to that site’s administrator or webmaster. DM reserves the exclusive right, at our sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Platform and/or introduce different features or links to different users. Permission must be granted by DM for any type of link to the Platform. To seek DM’s permission, please write to DM at the address below in Article 28. DM reserves the right, however, to deny any request or rescind any permission granted by DM to link through such other type of link, and to require termination of any such link to the Platform, at DM’s discretion at any time.
- TRANSACTIONS OUTSIDE OF THE US. Many of DM’s services are accessible to Sellers and Buyers outside of the United States. Sellers and Buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of Items. Without limitation of the foregoing, Seller shall comply with the EU Consumer Rights Directive (2011/83/EU) as implemented into national law in the various EU jurisdictions if and to the extent such law applies to the Buyer.
- FRAUD. Without limiting any other available remedies, DM may suspend or terminate this Agreement if, in DM’s sole judgment, DM suspects that any Seller has engaged in fraudulent activity in connection with the Platform.
- AMENDMENTS TO AGREEMENT. Without limiting DM’s other rights under this Agreement, DM may require that Seller enter into such amendments to this Agreement or new agreements as a condition to DM providing further service to Seller.
- SUSPENSION; TERMINATION. DM expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Platform by any person or entity, at the sole discretion of DM, any reason or no reason at all, and without prior notice.
Without limiting other remedies, DM may limit any Seller’s activity, immediately remove its Item listings, warn users of Seller’s actions, issue a warning, temporarily suspend, indefinitely suspend or terminate the Seller’s right to use the Platform and refuse to provide DM’s services to that Seller if: (a) it breaches the Seller’s Guarantee or otherwise breaches this Agreement or behaves in an unprofessional manner in DM's sole discretion; (b) DM is unable to verify or authenticate any information Seller provides to DM; or (c) DM believes that such Seller’s actions may cause financial loss or legal liability for the Seller, DM, or DM’s users. DM may also immediately terminate this Agreement if a Seller fails to make a payment under this Agreement when due, violates any term of this Agreement or misuses or threatens to misuse DM's trademark or other intellectual property.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL DM, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, MEMBERS, SHAREHOLDERS, SUBSIDIARIES, SUCCESSORS, CONTRACTORS, REPRESENTATIVES OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO USE OF, OR INABILITY TO USE, THE PLATFORM OR THE CONTENT, MATERIALS AND FUNCTION RELATED THERETO, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF DM OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, IN WHICH EVENT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO EVERY SELLER. IN NO EVENT SHALL THE TOTAL LIABILITY OF DM TO SELLER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM BREACH OF THIS AGREEMENT EXCEED, IN THE AGGREGATE, $100.00. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL DM OR ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, MEMBERS, SHAREHOLDERS, SUBSIDIARIES, SUCCESSORS, CONTRACTORS, REPRESENTATIVES OR CONTENT OR SERVICE PROVIDERS OR THIRD PARTIES PROVIDING INFORMATION ON THE PLATFORM HAVE ANY LIABILITY FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR OTHERWISE INCURRED IN CONNECTION WITH THE LOSS OF ANY DATA OR INFORMATION CONTAINED IN SELLER’S ACCOUNT OR OTHERWISE STORED BY OR ON BEHALF OF DM.
- INDEMNITY. Seller agrees to indemnify, defend and hold DM and (as applicable) its parent, subsidiaries, members, affiliates, officers, directors, agents, and employees, harmless from any loss, claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of or related to your use of the Platform, including without limitation Seller’s obligations to determine, collect, pay, and remit applicable taxes, fees and charges, including without limitation, sales tax, use tax, internet sales tax, VAT, import/export duty, and/or regulatory permit fees to the appropriate authority, and to accurately disclose to Seller the Purchase Price for each Item, or Seller’s breach of this Agreement or the documents it incorporates by reference, or Seller’s violation of any law or the rights of a third party. This indemnification will survive termination of this Agreement.
- RELEASE. Seller releases DM, its parents, affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, partners, members, successors and assigns (the “Released Parties"), and each of the foregoing, from any and all manner of action, claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses, including without limitation court costs and attorneys' fees, which Seller may have against the Released Parties, or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a dispute. Seller further waives its rights under Section 1542 of the California Civil Code, and any similar law of any applicable jurisdiction, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Seller agrees that no joint venture, partnership, employment, or other agency relationship exists between Seller and DM as a result of this Agreement or Seller’s use of the Platform.
- LEGAL COMPLIANCE. Seller shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Seller’s use of DM’s service and Seller’s bidding on, listing, purchase, solicitation of offers to purchase, and sale of Items, including but not limited to any applicable laws relevant to the fact that Items are sold at a distance. Seller agrees to comply with all applicable laws, rules and regulations in connection with its use of the Platform. Without limiting the generality of the foregoing, Seller shall comply with alI applicable laws regarding the transmission of data exported from the United States or the country in which Seller resides, as well as the restrictions on import or export of Items from the Seller’s country to the Buyer’s country. The Platform may be used only for lawful purposes and in a lawful manner. The agreements between the Buyer and the Seller shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- NOTICES. Except as explicitly stated otherwise, any notices to DM shall be given by certified mail, return receipt request, postage prepaid to Design Miami, 3841 NE 2nd Avenue, Suite 400, Miami, FL 33137. DM may give you notice by email to the email address identified by Seller or by reputable overnight courier to the mailing address identified by Seller. Mailed notice shall be deemed given on receipt or refusal to accept delivery.
- CONFIDENTIALITY. This Agreement between Seller and DM is confidentiaI. Seller will not directly or indirectly copy, release, disclose, divulge or permit access to any information relating to this Agreement or its terms (“Confidential Information”) to any third party, including without limitation any affiliated entity or customer/buyer, without the prior written consent of DM. If Seller is compelled to disclose any Confidential Information pursuant to a statutory obligation, the order of a court of competent jurisdiction or that of a competent regulated body that requires the disclosure of Confidential Information, before disclosure, Seller shall notify DM in writing, unless such notice is prohibited, so that steps may be taken to attempt to quash or limit any disclosure. This Article shall survive termination of this Agreement and shall remain in full force and effect notwithstanding any termination of this Agreement.
- ARBITRATION; WAIVER OF JURY TRIAL AND CLASS ACTION. Any dispute, controversy or claim arising out of or relating to this Agreement, or its breach, which cannot be resolved between the parties through negotiation within thirty (30) days, shall be submitted to the American Arbitration Association (“AAA") for mandatory binding arbitration in front of a single arbitrator chosen in accordance with the AAA Rules. Discovery shall be permitted, but only to the extent that the documents are directly relevant to and needed for fair resolution of one or more of the issues of importance and can be located and produced at a cost that is reasonable in the context of all surrounding facts and circumstances. When the cost and burden of discovery are disproportionate to the likely importance of the requested materials, the arbitrator may deny the requests or require that the requesting party advance the reasonable cost of production to the other party. The arbitrator may not award non-monetary or equitable relief of any sort, nor award damages inconsistent with this Agreement. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to enforce the results of the arbitration or to comply with legal or regulatory requirements. The arbitrator shall render its award in writing and will include the findings of fact and conclusion of law upon which the award is based. The result of the arbitration shall bind the parties and judgment on the arbitrators’ award may be entered in any court having jurisdiction. In addition to any and all other relief to which a party may be entitled, the arbitrator shall award reasonable attorneys’ fees and costs, including reasonable expert witness fees and costs, to the prevailing party (should there be one) in any such arbitration. The parties surrender and waive the right to submit any dispute to a court or jury, or to appeal to a higher tribunal. The parties agree to arbitration on an individual basis. Where enforceable, NEITHER PARTY SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER SELLERS OR PERSONS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER SITE USERS/SELLERS. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). Notwithstanding the foregoing, nothing in this Agreement shall prohibit either party from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm for which monetary damage would be insufficient.
- GENERAL. This Agreement shall be governed in all respects by the laws of the State of Florida, USA. Seller agrees to submit any dispute arising under this Agreement to binding arbitration. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Section and Article headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. DM may assign this Agreement and any other agreements referred to herein. DM’s failure to act with respect to a breach by Seller or others does not waive its right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof.