Seller Terms

This Agreement (“Agreement”) shall be between Flourish Planet Social Benefit Corporation PBC, a Delaware public benefit corporation, having its principal office at 27 Bourndale Rd N, Manhasset, New York 11030, USA, (including its successors and assigns, “Flourish”); and the Seller (including its successors and assigns, the “Seller”).

Flourish and the Seller are hereinafter individually referred to as a “Party” and collectively as the “Parties.”

1. WHEREAS, Flourish operates e-commerce stores at flourishplanet.com (and any other variation of flourishplanet.com) and via E-Commerce Platform Providers (defined below) that connect artisans/producers, producer organizations, and other intermediaries to sell their products directly to retail customers (each site, the “Platform”);
2. WHEREAS, Flourish has the right to enter into contracts with various artisans, producer organizations, and other intermediaries who desire to sell their products online through the Platform in the United States;
3. WHEREAS, Flourish intends to assist various artisans, producer organizations, and other intermediaries by curating products, providing a Platform on which artisans can sell, providing shipping logistics, assisting in marketing, and delivering customer care; and
4. WHEREAS, the Seller desires to use the Platform to offer and sell various products as mentioned in Annexure 1 (the “Product(s)”) to the visitors of the Platform (the “Buyer(s)”).

NOW, THEREFORE, the Parties hereby agree as follows:

1. DEFINITIONS AND INTERPRETATION

In this Agreement, the following terms have the following meanings:

1. “Applicable Law” means applicable laws, rules, and guidelines in relation to the Parties’ respective businesses, including any governmental authority to whose rules, orders, or decrees a Party is subject, any stock exchange rule or regulation, or any binding judgment, order, rule or requirement of any court, arbitral tribunal, or other competent authority, including without limitation data privacy laws.
2. “Assignee” has the meaning given to it in Clause 17.6.
3. “Business Day” means any day except any Saturday, any Sunday, or any day which is a federal legal holiday in the United States.
4. “Buyers” has the meaning given to it in the recitals.
5. “Buyer Information” means any information that identifies a Buyer, directly or indirectly, including without limitation contact information such as names, phone numbers, email addresses, and home addresses.
6. “Confidential Information” means information that includes, but is not limited to, Buyer details, market information, work product and documents related thereto, Platform content, or any other information which is treated as confidential by Flourish, and any other information, whether oral or in writing, received or to be received by the Seller, which is agreed to be treated under confidential terms, whether expressly or by implication. For the avoidance of doubt, all Buyer Information is the Confidential Information of Flourish.
7. “Data Incident” has the meaning given to it in Clause 17.2
8. “Dispute” has the meaning given to it in Clause 17.1.
9. “Dispute Notice” has the meaning given to it in Clause 17.1.
10. “E-Commerce Platform” means a Flourish-operated e-commerce store hosted and provided by an E-Commerce Platform Provider.
11. “E-Commerce Platform Provider” means a third-party provider through which Flourish operates an e-commerce store.
12. “Flourish” has the meaning given to it in the recitals.
13. “Flourish Market Place Fee” has the meaning given to it in Clause 7.3.
14. “Flourish Guiding Principles” has the meaning given to it in Annexure 2.
15. “Indemnified Persons” has the meaning given to it in Clause 13.
16. “Invoice” means an itemized statement or written account of the Products sold and amounts payable.
17. “Malpractice” has the meaning given to it in Clause 6.1.
18. “Party” or “Parties” has the meaning given to it in the recitals.
19. “Platform” has the meaning given to it in the recitals.
20. “Product” or “Products” has the meaning given to it in the recitals.
21. “Seller” has the meaning given to it in the recitals.
22. “Term” has the meaning given to it in Clause 16.1.
23. “U.S.” means the United States.

2. SELLER OBLIGATIONS

1. Commercial terms agreed to by and between the Parties are specified in Annexure 1.
2. Where Seller uses an E-Commerce Platform, as identified in Annexure 1, the terms in the E-Commerce Platform Addendum will apply. In the event of any conflict between the terms of the E-Commerce Platform Addendum and this Agreement, the terms of the E-Commerce Platform Addendum will control.
3. The Seller represents that it has provided true, complete, and accurate information regarding Seller’s business and products, including but not limited to, its name, addresses (i.e., addresses of the registered office and the principal place of business), contact details, email address, phone number, bank account details, and sales tax registration certificate to Flourish.
4. The Seller shall promptly inform Flourish in writing of any changes to its information, including the information provided in Annexure 1.
5. The Seller acknowledges and agrees that:
1. it shall comply at all times with this Agreement, the Flourish Guiding Principles (defined in Annexure 2), and all requirements and qualifications imposed by Flourish from time to time to allow participation in the Services;
2. it shall fully cooperate and share relevant information to allow Flourish to verify the Seller’s compliance with this Agreement and the Flourish Guiding Principles;
3. it shall not hold Flourish liable or responsible in the event of any breach or delay in the fulfillment of any of the Seller’s obligations, including for any loss incurred by the Seller or the Buyer through the sale of Products on the Platform; and
4. it shall be solely responsible and liable for any complaints and queries of Buyers with respect to the Products and any complaints with respect to the quality or quantity of the Products sold through the Platform.
6. The Parties acknowledge and agree that:
1. except as agreed to by the Parties, the data of the Buyers, including, but not limited to, the Buyer’s name, address, and purchase history, will be the exclusive property of Flourish, and the Seller will not use the same for the Seller’s own purpose or distribute, sell, or use such data in any form or means except for the purpose of this Agreement and shall keep it confidential at all times;
2. apart from the performance of the Agreement, neither Party shall, at any time, use any intellectual property of the other Party in any manner without the prior written consent of the owner of the intellectual property; and
3. they shall maintain records of all the transactions completed through the Platform, including returns and refunds, as may be required for audit, regulatory, and customer service purposes.

3. PRODUCT LISTING

1. The Seller shall provide accurate and complete Product information to Flourish for input onto the Platform. Product descriptions and listing details that Seller provides will not be misleading or in violation of Applicable Laws and this Agreement. Such Product descriptions and listing details will describe the actual condition of the Product sold and will be posted by Flourish on the Platform. If the Product sold does not match the Product description provided to Flourish, the Seller shall be liable to Flourish for any costs, damages, and liability that Flourish incurs with respect to the inaccurate Product description, including without limitation refunds paid to Buyers.
2. The Seller shall provide Flourish with a sufficient number of Product photos when requested. Such photos shall comply with the photoshoot guidelines provided by Flourish from time to time.
3. The Seller shall provide a seasonal catalog of its Product collections, including Product details, for Flourish to review.
4. Flourish shall select the Products to be listed on the Platform at its sole discretion.

4. OPERATIONAL PROCESS

1. Notification. Flourish shall notify the Seller when a Buyer purchases a Product through the Platform.
2. Payments. Flourish shall collect all Buyer payments and remit appropriate payments to Seller in accordance with Section 7 “Payment Terms” of this Agreement.
1. The Seller hereby authorizes Flourish to process, facilitate, collect, and remit payments to the Seller from the Buyers in respect of the sale of Products through the Platform.
3. Sale Terms.
1. The Seller shall agree to all commercial and contractual terms in respect of the Product offered by the Seller with the Buyer, including (but not limited to) the price, shipping costs, payment methods and terms, date, mode of delivery, warranties, and after-sales services related to the Products.
2. The Seller acknowledges that the sale of Products shall be a bipartite transaction between the Seller and the Buyer. For the avoidance of doubt, Flourish will not be a party to such transaction.
4. Packaging and Delivery.
1. The Seller shall package and ship the Product to the Buyer via courier through Flourish’s last mile delivery network (which may be referred to as the “Drop- Ship-Model”) or another network as determined by Flourish.
2. Flourish reserves the right to select a courier service and shall assign a courier partner for shipment. The designated courier partner shall collect the shipment from the Seller’s pick-up center or warehouse.
3. The Seller shall endeavor to use environmentally friendly packing material and shall not use plastic material for packaging.
4. Flourish shall provide supplementary mandatory packaging elements (i.e., outer packaging cover, branded tape, and thank you card) to the Seller when deemed necessary by Flourish. Seller shall use any such packaging required by Flourish.
5. The Seller shall dispatch purchased Products to the Buyer through Flourish’s courier partner within a shipment SLA, along with all required information, manuals, accessories (where applicable), warranty documents (where applicable), and any other relevant documents to enable the Buyer to optimally use the purchased Product.
6. If the Seller foresees a delay in dispatch of a Product in relation to any order (e.g., if there is limited inventory or a production delay), it shall inform Flourish of the reasons for delay within twenty-four (24) hours so that Flourish can communicate the delay (and any alternative arrangements) to the Buyer. Flourish may cancel such delayed orders and mark them as “Seller cancellation,” in which it may arrange a refund to such Buyer on behalf of the Seller in the amount, if any, paid by the Buyer for that Product.
7. The Seller shall accept any Product which is refused or not accepted by the Buyer at the time of delivery.
8. The Seller shall issue documents such as e-waybills, delivery challans, or other documents as may be required for transportation of the Products.
9. Neither Flourish nor the courier partner will be responsible for any loss due to the confiscation of goods by any agency or authority for any reason whatsoever.
10. The Seller shall maintain records of all Invoices as per applicable tax laws and shall be solely responsible for maintaining proper records of such Invoices, including (but not limited to) maintaining books of accounts in respect of the transactions through the Platform.
11. The Seller shall provide to Flourish real-time inventory details of the Product(s) that are listed on the Platform for sale.
12. Seller will comply with Applicable Laws when shipping Products to Buyers.
13. The Seller shall package and label all descriptions, advertisements, and warnings of the Products in accordance with Applicable Laws and Flourish’s requirements. Flourish assumes no liability for the Products listed on the Platform, including any required descriptions, labeling, or warnings.
14. The Seller acknowledges, agrees, and undertakes that it will never obliterate, smudge, or alter the list price indicated by the manufacturer, the packer, or the importer. The Seller shall not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported, or transmitted, any commodities, software, technology, or any other product to, or otherwise transact with, any country, individual, corporation, organization, or entity to which such transaction, export, re-export, or transmission is restricted or prohibited under sanctions or embargoes administered by the United Nations Security Council, U.S. Departments of State, Treasury or Commerce, the European Union, or any other
15. applicable government authority. Examples include: (i) prohibitions by the U.S. government on transactions involving the Crimea Region, Cuba, Iran, North Korea, and Syria; and (ii) prohibition on transactions involving individuals and entities listed on the Office of Foreign Assets Control’s Specially Designated Nationals List (https://sanctionssearch.ofac.treas.gov/).
16. If the Seller fails to comply with Applicable Law, Flourish is entitled to recover all amounts, such as any fine, penalty, incidental expenses, and other costs that may be incurred by Flourish on account of the Seller’s non-compliance.

5. NON-DELIVERY OR RETURN OF PRODUCTS

1. Non-delivery/return of the Product due to the fault of the Seller. Where the Product has not been delivered after Flourish’s notification to Seller of an order or has been returned due to any reason or fault attributable to the Seller, Flourish shall, on behalf of the Seller, provide a refund to the Buyer at the selling price paid by the Buyer to purchase that Product. Flourish shall recover any portion of the sale proceeds of that Product (where Flourish has remitted the portion of sale proceeds to the Seller) for that Product from the Seller.
2. Non-delivery/return of the Product due to any other reason. Where the Product has not been delivered or has been returned due to any reason or fault which is not attributable to the Seller, Flourish shall, on behalf of the Seller, provide a refund to the Buyer at the sale price paid by the Buyer to purchase the Product. Upon Flourish’s confirmation of the return of the Product to the Seller, Flourish shall recover any proceeds paid to the Seller for that Product including payment collection fees and other costs. Flourish shall be entitled to recover or adjust any outstanding amount in relation to the Flourish Market Place Fee payable by the Seller to Flourish under this Agreement from any proceeds payable to the Seller. The Seller shall not object to such recovery or adjustment.

6. MALPRACTICE

1. The Seller acknowledges and agrees that selling and delivering wrong, fake, duplicate, spurious, counterfeit, damaged, defective, refurbished, or previously owned products through the Platform (“Malpractice”) will cause great prejudice and harm to the reputation and goodwill of Flourish and may also cause prejudice and harm to the Buyers.
2. The Seller shall not offer for sale any Product which may cause prejudice or harm to the reputation and goodwill of Flourish. Flourish reserves the right to remove or block any such listings of Products and immediately remove the Seller from the Platform pending Flourish’s review of alleged Malpractice.
3. If the Seller is found to be involved in any Malpractice, Flourish may terminate this Agreement and impose and deduct from the Seller’s account any outstanding payments without the Seller’s prior consent. Flourish shall impose, deduct, or recover damages from the Seller.
4. The Seller shall only deliver genuine and original Products ordered by the Buyer through the Platform and in accordance with each order’s specifications.
5. The Seller’s breach of this Clause 6 is a material breach of this Agreement.

7. PAYMENT TERMS

1. Product Price. The Seller shall provide the lowest and most competitive selling price for display on the platform for each Product that Flourish may display for Seller to sell on the Platform.
2. Payment. Flourish shall receive the full sale price of a Product purchased by a Buyer through the online system, i.e., the payment gateway offered by Flourish on the Platform.
3. Payment of Flourish Market Place Fee.
1. The Seller agrees to pay Flourish the Flourish Market Place Fee specified on
2. Annexure 1 in respect to each Product sold on the Platform.Flourish shall remit sale proceeds to the Seller within thirty (30) Business Days from the end of each calendar month in respect of Products delivered to Buyers in said calendar month after deducting and retaining the Flourish Market Place Fee. Flourish agrees to release the sale proceeds after adjusting all debits, deductions, the value of returns, or cancellation etc., and as appearing in the ledger of Flourish. The payment shall be accompanied by a detailed report of the Products sold against which the payment is made.
4. Charges.
1. Flourish shall pay for (i) supplementary packaging provided to the Seller pursuant to Clause 4.4(d); (ii) listing and technical infrastructure for the Platform; and (iii) payment gateway charges.
2. The Seller shall pay for manufacturing and primary packaging of its Products, in addition to the Flourish Market Place Fee.
3. Flourish and the Seller acknowledge and agree that they shall require Buyers to pay for shipping costs.
5. Sales Proceeds.
1. Flourish reserves the right to retain a part of the sale proceeds to meet contingencies, such as a refund towards the probable return of a Product or an order cancellation. Flourish shall pay the retained amount to the Seller after the refund period for the relevant Buyer transaction has expired, adjusting for all refunds, if any, made to the Buyer(s). Flourish shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any amounts otherwise payable pursuant to this Agreement to any person such amounts as Flourish is required to deduct and withhold pursuant to Applicable Laws. To the extent that amounts are withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of whom such deduction and withholding was made.
2. The Seller shall indemnify Flourish against any claims owing to the failure of the Seller to ship Products or comply with Applicable Laws, including but not limited to sales tax.
3. The Seller shall provide to Flourish a valid and duly executed U.S. Internal Revenue Service Form W-9 or Form W-8, or any successor thereto, (i) on or before the date of execution of this Agreement; (ii) promptly upon reasonable demand by Flourish; and (iii) promptly upon learning that any such tax form previously provided has become invalid, obsolete, or incorrect. Additionally, the Seller shall, promptly upon request by Flourish, provide such other tax forms and documents reasonably requested by Flourish.
4. In order to avoid any Disputes, the Parties shall reconcile their accounts between themselves at periodic intervals as may be mutually agreed to from time to time.

8. TAX

The Seller shall be responsible for the collection, reporting, and payment of any and all of its taxes, including without limitation, sales tax, except to the extent that (i) Flourish automatically calculates, collects, or remits taxes on behalf of the Seller according to Applicable Laws; or (ii) Flourish expressly agrees to receive taxes or other transaction-based charges on behalf of the Seller in connection with tax calculation services made available by Flourish and used by the Seller. The Seller agrees to and shall comply with the tax policies as may be applicable from time to time. All fees and payments payable by the Seller to Flourish under this Agreement are exclusive of any applicable taxes, deductions, or withholding (including but not limited to cross-border withholding taxes). If any such deduction or withholding is required on any payment, the Seller will pay such additional amounts as are necessary so that the net amount received by Flourish is equal to the amount then due and payable under this Agreement.

9. INSURANCE

The Seller shall maintain commercial, general, umbrella, or excess liability insurance of appropriate value, as may be applicable to the Seller’s business or as may be mutually agreed to between the Parties, at the Seller’s expense throughout the Term. Such insurance may cover liabilities caused by or occurring in conjunction with the operation of the Seller’s business, including Products liability and bodily injury, with applicable policies naming Flourish and its Assignees as additional insured. The Seller shall provide a copy of such insurance policy to Flourish upon Flourish’s request.

10. TRANSFER OF OWNERSHIP OF PRODUCT, LOGISTICS, AND CONSUMER RIGHTS

1. The Seller shall transfer the ownership in the Products purchased to each Buyer after successful delivery of the same to the destination provided by the Buyer, until which the ownership in the Products shall vest with the Seller alone.
2. The Seller shall accept all sales returns which are refused or not accepted by the Buyer at the time of delivery.
3. The Seller shall repair, replace, or provide a refund (whether complete or partial) to each Buyer due to any manufacturing defect of the Product, damage in transit, or for any reason whatsoever.

11. GENERAL REPRESENTATIONS, WARRANTIES, AND COVENANTS

1. The Parties represent and warrant that:
1. they have all requisite power and authority, and are legally competent to enter and execute the Agreement, deliver, and perform their obligations under this Agreement and have been fully authorized by all requisite corporate actions to do so; and
2. they have entered into this Agreement on a non-exclusive basis. The Parties are entitled to enter into a similar type of agreement with any other party.
2. The Seller shall:
1. not offer for sale, sell, or deliver any prohibited items, refurbished Products, or Products to which it has no rights on the Platform;
2. deliver the Products to the Buyers in a timely manner consistent with the terms of this Agreement, including without limitation Section 4.4; and
3. deliver the Products in accordance with all Applicable Laws.
3. If the Seller provides false or misleading information or defective or counterfeit Products and fails to rectify the issue within a time period reasonably requested by Flourish, Flourish may initiate the Dispute resolution process in Clause 17.1 and suspend, block, restrict, or cancel the Seller’s registration Products on the Platform or disqualify and bar the Seller from selling any Product on the Platform.

12. INTELLECTUAL PROPERTY RIGHTS

1. The Parties agree that the brands, logos, or trademarks belonging to each Party are the exclusive property of the respective Party and cannot in any circumstances be used, copied, or altered in any manner which is identical or similar to the brands, logos, or trademarks of the other Party without being specifically authorized in writing by the other Party. The Seller recognizes and confirms that Flourish has the exclusive right to supervise, allow, and reject content on the Platform.
2. The Seller grants Flourish the right to display the Products (as updated or to be updated by the Seller) along with the related logos, trademarks, or brand names of the Products for marketing and selling through the Platform.
3. The Seller authorizes Flourish to use and include the Seller’s trademarks (as may be provided by the Seller from time to time) and the Seller’s name on the Platform in any directory or promotional material produced in connection with the promotion of the Platform or the Products offered by the Seller on the Platform.
4. The Seller acknowledges that Flourish is merely an intermediary with respect to the Products listed on the Platform. However, on receiving written notification of any alleged infringement of third-party intellectual property rights due to the display or sale of any Products, third party trademark, or copyrighted matter on the Platform (including the availability or sale of counterfeit goods on the Platform), Flourish may, at its discretion, remove the allegedly infringing Products and content from the Platform without prior notice to the Seller.

13. INDEMNIFICATION

The Seller shall, at its own cost and expense, indemnify and hold Flourish, its directors, employees, officers, affiliates, partners, and agents (collectively “Indemnified Persons”) harmless from and against any and all losses, liabilities, claims, actions, costs, and expenses, including reasonable attorneys’ fees and court costs relating to, resulting from, or in any way arising out of the Products, a breach of any of its representations, warranties, or obligations contained herein, or any third-party rights as a result of any infringement action against the Seller, or any fraud or fraudulent misrepresentation, or non-compliance or breach of Applicable Laws, whether arising in this Agreement or from any letter or declaration issued, now or in the future.

14. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING CONTRARY CONTAINED IN THIS AGREEMENT, IN ANY EVENT, FLOURISH AND ITS AFFILIATES SHALL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY) TO THE SELLER OR ANY OTHER PERSON OR ENTITY FOR THE COST OF COVER OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUES, LOSS PROFIT OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOSS OF BUSINESS OR DATA)

ARISING OUT OF OR IN RELATION TO THIS AGREEMENT. Flourish’s entire liability to the Seller under this Agreement or under any Applicable Law or equity shall be limited solely to actual and proven direct damages sustained by the Seller as a result of the gross negligence or willful misconduct of Flourish and their respective directors, officers, employees, and agents in the performance of their respective services and obligations under this Agreement. In no event shall Flourish be liable, vicariously or otherwise, to the Seller and its affiliates or any third party for any losses, damages, liabilities, costs (including reasonable legal costs) and expenses (including taxation) which are, in the aggregate, in excess of the Seller’s average Flourish Market Place Fee in one (1) calendar month calculated as the average in the previous six (6) calendar months.

15. DISCLAIMER AND GENERAL RELEASE

1. The Platform and the Product listing, payment collection, and shipping services provided therein including any content, software, functions, materials, and information made available in connection with Flourish’s services are provided on an “as is” basis. The Seller uses the Platform and Flourish’s services at its own risk.
2. To the extent permissible by Applicable Law, Flourish and its affiliates disclaim: (i) the services or the transactions contemplated by this Agreement, including any implied warranties of merchantability, fitness for a particular purpose, or non- infringement; (ii) implied warranties arising out of the course of dealing, course of performance, or usage of trade; and (iii) any obligation, liability, right, claim, or remedy in tort, whether or not arising from negligence.
3. Flourish shall not be liable for any service interruptions, including but not limited to system failures or other interruptions that may affect the receipt, processing, acceptance, completion, or settlement of any orders or transactions.
4. Flourish does not represent or warrant that the information regarding the Products on the Platform will be accurate or error-free or that Buyers will purchase the Products. Further, Flourish does not represent or warrant that Buyers will provide accurate and correct information to Flourish and will have no liability with respect to the information provided by Buyers.
5. Since Flourish is merely facilitating transactions between the Seller and Buyers, if any Dispute arises between the Seller and the Buyer on any matter, the Seller releases Flourish, its agents, employees, and affiliates from claims, demands, and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such Dispute(s).

16. TERM, TERMINATION, AND CONSEQUENCES OF TERMINATION

1. Term. This Agreement shall come into effect from the Effective Date and shall remain valid for a period of one (1) year commencing from the Effective Date (“Initial Term”). After the Initial Term, the Agreement will auto-renew for additional one (1) year periods unless either Party notifies the other of its intent not to renew at least thirty (30) days before the start of a subsequent term (the Initial Term and each subsequent term, the “Term”).
2. Termination Events. This Agreement may be terminated by either Party with immediate effect:
1. If either Party is in breach of any of its covenants, representations, warranties, or any other material terms herein, and such breach is not cured within thirty (30) days of the breaching Party receiving notice from the non-breaching Party; or
2. If a petition for relief under any bankruptcy or insolvency is filed by or against either Party, or if either Party makes an assignment for the benefit of creditors, or a receiver or an administrative receiver or administrator is appointed.
3. Termination for Convenience. Notwithstanding anything contained under this Agreement, Flourish may terminate this Agreement for convenience by giving written notice to the other Party at least thirty (30) Business Days in advance.
4. Effect of Termination. On termination of this Agreement:
1. The Parties shall return all Confidential Information of the disclosing Party and all other properties and materials belonging to the disclosing Party. Where the Confidential Information cannot be returned in material form, the Party shall destroy all of the Confidential Information and shall confirm the same.
2. The Seller will only be entitled to the sale proceeds which have become due to the Seller on account of any sale of the Products made through the Platform prior to the date of termination of this Agreement. Flourish shall be entitled to adjust all amounts due to it from the Seller until the date of termination from the sale proceeds payable to the Seller on termination.

17. GENERAL TERMS

1. DISPUTE RESOLUTION, GOVERNING LAW, AND JURISDICTION

• Any Dispute, controversy, or claim between the Parties arising out of or in connection with any of this Agreement or any non-contractual obligations arising out of or in connection with it (a “Dispute”) shall be resolved in accordance with this Section 17.1.
• Any Party may give written notice to the other Party that a Dispute has arisen (“Dispute Notice”). Any Dispute shall first be referred for amicable resolution by any Party to their respective authorized representatives.
• Any Dispute that is not amicably resolved within ninety (90) Business Days after the delivery of a Dispute Notice in accordance with Section 17.1(b) shall be settled by mediation as provided under the clause below.
• The Parties agree to mediate any Dispute or claim arising between them out of this Agreement, or any resulting transaction, in the state of New York before resorting to arbitration or court action.

2. CONFIDENTIALITY

1. General.

• The Parties shall not at any time divulge, or allow to be divulged to any person, any Confidential Information unless such information comes in the public domain without breach by either Party. However, no Party shall be precluded from disclosing any information to the extent required in legal proceedings, subject to the Party’s compliance in Section (d) below.
• The obligations under this Clause 17.2 shall survive the termination of this Agreement.
• The obligation of confidentiality hereunder does not apply to:
• information which is independently developed by the disclosing Party or acquired from a third party to the extent that it is acquired otherwise than as a result of a breach of this Agreement and with the right to disclose the same;
• information to the extent required to be disclosed by Applicable Laws; or
• the disclosure (subject to this Clause 17.2) in confidence to the Parties’ officers, employees or agents of information required to be disclosed for a purpose incidental to the Agreement.
• In the event any disclosure of Confidential Information other than as permitted above is required by a Party, that Party shall give written notice to the other Party and obtain consent, which shall not be unreasonably withheld.

2. Buyer Information.

• Seller represents and warrants that it will comply with all Applicable Laws, including without limitation data security and privacy laws, when accessing and using Buyer Information.
• Seller will process Buyer Information solely to fulfill its obligations under this Agreement.
• Seller has and will implement appropriate administrative, physical, and technical safeguards that are no less rigorous than generally accepted industry practices and that secure Buyer Information in its custody from unauthorized or unlawful loss, destruction, access, disclosure, alteration, or use.
• Seller will immediately notify Buyer in the event of any accidental or unauthorized access, use, or disclosure of Buyer Information (a “Data Incident”) and will cooperate with Flourish and take such reasonable commercial steps as are directed by Flourish to assist in the investigation, mitigation, and remediation of each such Data Incident. Seller will reimburse Flourish in full for all costs incurred by Flourish in the investigation and/or remediation of any Data Incident.
• Seller will delete or return all Buyer Information at the expiration or termination of the Agreement for any reason and will certify that it has fully complied with this requirement.

3. FORCE MAJEURE

Neither Party shall be liable for failure to perform its obligations due to force majeure circumstances, including, but not limited to, floods, natural disasters, war, acts of terror, political unrest, technical glitches, acts of God, change of laws, pandemics, or any circumstances beyond the reasonable control of Parties.

4. NOTICES

Any notice to be served under this Agreement shall be served by email or post or courier to the addresses of the Parties herein.

5. ENTIRE AGREEMENT

This Agreement, including relevant Annexures, shall constitute the entire and final agreement between the Seller and Flourish with respect to the subject matter covered herein.

6. ASSIGNMENT

• The Seller shall have the right to assign its obligations under this Agreement to its subsidiaries, affiliates, and associates (“Assignee”) and shall duly inform Flourish in writing, provided the Seller remains primarily responsible for the Assignee’s obligations and the Assignee undertakes to adhere to the terms and conditions of this Agreement and the obligations of the Seller in writing. Otherwise, the Seller shall not assign this Agreement to any third party without obtaining Flourish’s prior written consent.
• Flourish may assign this Agreement to any other party. Flourish may perform any of its obligations or exercise any of its rights under this Agreement through one (1) or more of its agents, affiliates, business partners, or service providers.

7. MODIFICATION/AMENDMENT

• The Parties reserve the right to modify or amend the terms and conditions herein or to introduce new terms and conditions based on mutual discussions subject to Clause 17.7(b).
• Flourish may unilaterally change or modify this Agreement at any time with immediate effect (i) in order to comply with Applicable Laws; (ii) for fraud and abuse prevention or security reasons; (iii) to change existing features or add additional features to the services provided in this Agreement; or (iv) to restrict Products or activities that Flourish deems unsafe, inappropriate, or offensive. In this case, Flourish shall provide at least fifteen (15) Business Days advance notice for changes, if any, to this Agreement.

8. RELATIONSHIP

The relationship between the Parties herein shall be on a principal-to-principal basis and shall not be construed or deemed to create any association, partnership, joint venture, or employer-employee relationship in any manner.

9. SURVIVAL

Any and all obligations under this Agreement which, by their very nature should reasonably survive the termination or expiration of this Agreement, shall so survive.

10. SEVERABILITY

If any part or provision of this Agreement is or becomes illegal, invalid, or unenforceable, that part or provision of the Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement.

11. NO WAIVER

No waiver, by either Party, of any provision of this Agreement, shall, in any event, become effective unless the same is in writing and such waiver shall be effective only in the specific instance described and for the purpose that the waiver is given.

12. RECORDS

The Seller agrees that at all times during the term of this Agreement it shall maintain appropriate records relating to transactions covered under this Agreement and shall allow Flourish and its representatives to examine, inspect, audit, and review all such records and any source document pertaining to the transaction covered under this Agreement upon written notice to Seller at least five (5) Business Days prior to notice.

13. COMMUNICATION

The Seller gives explicit consent for Flourish to communicate through email or phone with the Seller’s authorized representative specified in Annexure 1 or to any contact person as agreed upon between the Parties.

14. COUNTERPARTS

This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, is an original, but all the counterparts taken together shall constitute one (1) document.

Annexure 1: E-Commerce Platform Addendum

This E-Commerce Platform Provider Addendum (“Addendum”) applies when Seller offers Products on an E-Commerce Platform. All capitalized terms used herein will have the meaning provided to them in the Agreement. In the event of any conflict between this Addendum and the Agreement, the terms of this Addendum will control.

The Parties agree as follows:

1. Purchase Notification.

E-Commerce Platform Provider will notify the Seller when a Buyer purchases a Product through the Platform.

2. Payments.

• Flourish shall collect all Buyer payments and E-Commerce Platform Provider will remit appropriate payments to Seller in accordance with Section 7 “Payment Terms” of the Agreement.
• E-Commerce Platform Provider, on behalf of Flourish, shall remit sale proceeds (after deduction of Flourish Market Place Fee) to the Seller within thirty (30) Business Days from the end of each calendar month in respect of Products delivered to Buyers in said calendar month.

3. Packaging and Delivery.

• The Seller will ship Products using their own shipping methods as outlined in the Platform Provider’s Terms of Service. Seller will ship all Products within the time frame agreed upon by Flourish and Seller.
• Flourish and the Seller acknowledge that they shall require Buyers to pay for shipping costs, which will be remitted in part to Seller through the E- Commerce Platform Provider’s pass-through shipping logistics.

4. Use of E-Commerce Platform.

• Seller understands and agrees that Flourish facilitates Product purchases via the E-Commerce Platform Provider, which is a third party. Flourish is not the provider of, makes no representations and warranties about, and fully disclaims any liability with respect to, the E-Commerce Platform. Seller’s use of the E-Commerce Platform is at Seller’s risk and Seller agrees to bring any claims arising from its use of the E-Commerce Platform against the E- Commerce Platform Provider.
• Flourish is not the provider of the E-Commerce Platform. In addition to the disclaimers made in the Agreement, Flourish makes no representations and warranties about, and fully disclaims any liability with respect to, the E- Commerce Platform. Seller’s use of the E-Commerce Platform is at Seller’s risk and Seller agrees to bring any claims arising from its use of the E- Commerce Platform against the E-Commerce Platform Provider.
• In addition to its obligations under the Agreement, Seller will indemnify and hold Indemnified Persons harmless from and against any and all losses, liabilities, claims, actions, costs and expenses, including reasonable attorneys’ fees and court costs relating to, resulting from or in any way arising out of Seller’s use of the E-Commerce Platform, whether arising in this Agreement or from any letter or declaration issued, now or in the future.

Annexure 2: Flourish Guiding Principles

The selection and continued participation of Sellers on the Flourish Platform are based on an evaluation of the Seller’s adherence to the following principles (Flourish Guiding Principles) that are aimed at fulfilling our public benefit mission:

1. Fair wages. The Seller agrees to pay artisans/producers compensation that is deemed fair for their efforts, skills, and talents. The Seller further agrees that such compensation data will be accurately shared with Flourish for each Product category when requested. The Seller also agrees to disclose on the Platform the portion of the sales price of each listed product that represents the compensation paid or payable by the Seller to artisans/producers.
2. Safe Working Conditions. The Seller meets all legal and regulatory standards and follows industry best practices in providing a safe and ergonomic place of work for the artisans/producers.
3. Livelihood Improvement and Financial Resiliency. The Seller maintains a program of training and skill development for artisans/producers that enhances the market value of their work and increases their earning capacity. The Seller offers assistance with health insurance coverage and savings for retirement.
4. Social Impact. The Seller shares with Flourish information on any programs the Seller maintains to provide livelihoods to socially disadvantaged individuals within their communities. Depending on the communities, these may include women, racial or ethnic minorities, victims of abuse, persons with disabilities or chronic illnesses, persons who have been dislocated due to human or natural disasters, and formerly incarcerated persons seeking to re-enter the workforce. The Seller also agrees to provide Flourish with data on the impact achieved through such programs.
5. Environmental impact. The Seller undertakes ongoing steps to minimize pollution and the use of unsustainable materials in the production and packaging of the Products. The Seller agrees to share information with Flourish on the Seller’s environmental footprint.
6. Transparency. The Seller exhibits willingness to collect and share mutually agreed data to measure performance and progress on the above guiding principles.