MARKETPLACE PARTICIPATION AGREEMENT
Maker District, Inc. (referred to hereinafter as “Maker District”) has established on this website (this “Website”) a marketplace of different stores (the “Marketplace”) and makes available to any user of this Website that has accepted the User Terms and Conditions (the “User Terms”) and set up an account under the User Terms (“User”) the opportunity to establish a virtual store on the Marketplace to offer and sell products and services to members of the public as set forth herein.
This Marketplace Participation Agreement (this “Agreement”) is entered into with Maker District by a User accepting this Agreement or on whose behalf this Agreement is accepted (referred to hereinafter as “Participant”) and constitutes a legally binding contract between Maker District and Participant setting forth the terms and conditions under which User may establish and maintain a virtual store on this Website, through which Participant may offer and sell products and services to members of the public (the “Store”).
The individual accepting this Agreement on behalf of Participant hereby represents that the individual:
has the full legal authority and agency from user to bind enter into this Agreement on behalf of Participant and to bind Participant to all terms, conditions, and provisions in this Agreement;
has read and understands all of the terms, conditions, and provisions of this Agreement; and
has received any legal counsel, or had the opportunity to receive legal counsel, related to this Agreement before accepting this Agreement.
1. Communication with Participant. Maker District will communicate with Participant, including to give legal notices, in accordance with the provisions for communications under the User Terms.
2. Modification of this Agreement. Maker District has the right to modify this Agreement from time to time by giving Participant notice thereof through communication pursuant to Section 2 of this Agreement. If Participant does not agree with such modifications or modified version, Participant shall give written notice to Maker District thereof and discontinue the Store no later than the next business day from Maker District’s notice of such modification or modified version of this Agreement. Any failure to give such written notice or to so discontinue the Store shall be conclusively deemed to be an agreement with the modifications or modified version, and this Agreement shall then be deemed to so modified.
4. Store; Transactions.
a. Maker District provides Participant with the digital store front for Participant to establish the Store. Participant is solely responsible, at its cost, for customizing such digital store front into the Store as permitted by Maker District and maintaining the Store, including to include all content and information necessary therefor. Participant shall retain any ownership and rights of Participant in any content, information, documentation, and material included by Participant in the Store or in customizing the digital store front (“Participant Content”). Participant shall retain any and all ownership and rights that Participant has in any Participant Content.
b. Maker District does not provide any warranty, guaranty, or assurance of any uptime or minimum uptime, uninterrupted access, availability, or connectivity to the Store. Maker District does not provide or agree to any service levels, service level agreement, or uptime commitment of any kind.
c. Participant shall at all times maintain an external back-up of all Participant Content and all information and data generated by Participant on or through the Store. Maker District does not ensure that any Participant Content or such information or data will be maintained or will not be lost, corrupted, or appropriated by a third party.
d. Upon the termination of this Agreement, Maker District may immediately close the Store and irretrievably delete all Participant Content and all information and data generated by Participant on or through the Store on the server or otherwise in the possession or control of Maker District, all without the need for any notice to Participant and without any opportunity for Participant to retrieve any of it. Maker District may collect and retain any and all data and information collected by Maker District in connection with the Store.
e. Maker District may at any time modify, change, or alter the Marketplace and any store front, and any design thereof. Maker District reserves the right to post banners, advertisements, promotions, and similar content throughout the Marketplace.
f. Participant shall be solely responsible and liable for all products and services offered by Participant in the Store, for all sales to any customer and all agreements and transactions related thereto, and the performance of all obligations under such agreements and transactions. Participant is solely responsible for collecting all payments owed under any such agreement or transaction, and to assert any claim for any non-payment thereof, all at Participant’s sole cost.
g. Maker District is not and shall not be deemed to be a party to any transaction of Participant in or through the Store, including any offer or sale of any product or service in or through the Store. Participant shall not represent, and clearly state, that Maker District is no party to any such transaction and does not have any obligation or liability related thereto.
h. Participant shall prepare the legal terms under which Participant will offer and sell any products and services in the Store. Participant is solely responsible for seeking and obtaining, at its sole cost, any legal counsel or advice related to any such legal terms. Participant is solely responsible for seeking and obtaining, at its sole cost, any legal counsel, advice, and representation related to this Agreement, Participant’s participation hereunder, any transaction of Participant in or through the Store, any dispute related to any such transaction, or otherwise related to the Store or Participant’s establishment or operation thereof. Participant will have no right or claim to any such legal costs against Maker District.
i. Participant may offer, sell, or provide in or through the Store only any of the following: (i) goods that have been handmade or individually made, (ii) tools in connection with and for the purpose of creating handmade or individually made goods, and/or (iii) services related to the creation of handmade or individually made goods. In no event shall Participant offer, sell, or provide in or through the Store any goods that are manufactured by a third party, including any mass- or factory-produced goods.
j. Participant warrants and represents to have the full right and authority to enter into, and perform all of Participant’s obligations under, this Agreement. Participant further warrants and represents that Participant will at all times:
(i) establish, maintain, and operate the Store, and all content thereof, and to offer, sell, and provide all products and services, in accordance with all applicable law without violating any right or property, including any intellectual property right, of any person;
(ii) offer, sell, and provide only goods and services in accordance with Section 4(i) of this Agreement and no goods that are manufactured by a third party, including any mass- or factory-produced goods.
(iii) has all licenses and permits, and meets all requirements under regulatory and other law, to offer, sell, and provide all products and services made available by Participant in or through the Store;
(iv) has the necessary and sufficient knowledge and expertise related to the products and services made available in the Store that any tradesperson in good standing in the location(s) where Participant makes available such products and services would reasonably have;
(v) charge and collect all sales and use taxes owed under applicable law for any sale of products or services in the Store, and to pay all such sales and use taxes timely to the applicable taxing authority; and
(vi) perform all transactions for the sale of products or services in the Store in accordance with the legal terms governing such transaction and all applicable law, including all products liability, consumer protection, health and safety, and regulatory law pertaining to any product or service sold by Participant in the Store.
Participant further warrants and represents not to offer, sell, or provide any product or service (I) that, or in a manner that, is unlawful, violates or infringes any law or any right or property, including any intellectual property rights, of any person, causes or is likely to cause personal injury or damage to property, discriminates based on race, ethnicity, nationality, gender, sexual orientation, gender, sexual identity, or disability, harasses, bullies, threatens, or incites or tends to incite violence, or is libelous, slanderous, defamatory, or pornographic, or causes, or is likely to cause, harm to Maker District’s reputation, or (II) constitutes, comprises, or includes rifles, handguns, firearms, or other weapons, firecrackers, explosives, hazardous material, drugs, illegal substances, alcohol, medication, food, drink, other items for human or animal consumption.
5. Payment Structure. With regard to any purchase of any product or sale in the Store, Participant shall use the payment services of a third party service provider made available for participants of the Marketplace, provided that Participant will use such payment services at its own risk and be subject to, and shall comply with, the terms of such payment service. Maker District is not provider of such payment services or a party to any agreement between Participant and the provider of such payment services, and has no obligation or liability related to any fees imposed by such payment service provider.
6. Participation Fee.
a. Participant shall pay to Maker District such fees and other amounts that Maker District charges for the establishment and operation of the Store, as such fees are published or notified to Participant in connection with Participant’s Store and participation in the Marketplace (the “Participation Fees”). Maker District may increase or change, or add fees to, the Participation Fees by notice to Participant pursuant to Section 2 of this Agreement. If Participant does not agree with such increase, change, or additional fees, Participant shall give express written notice to Maker District thereof within ten (10) calendar days after receiving such notice. If Maker District does not receive such written notice from Participant before the end of such ten (10) calendar days, such increase or change or additional fees shall be legally effective and binding and be part of the Participation Fees. If Maker District receives such timely written notice, Maker District has the right to terminate this Agreement by written notice of termination effective at the end of thirty (30) days after such written notice is given.
b. Participant shall pay any monthly recurring Participation Fee for a calendar month before or on the first calendar day of such calendar month. Timely prepayment of such recurring Participation Fee for a calendar month is a condition for the operation of the Store during such calendar month. If Maker District does not receive the Participation Fee, Maker District may immediately, without need for any notice, disconnect the Store or terminate this Agreement. Participant shall pay the Participation Fees in such manner as directed by Maker District, without any set-off or deduction. All payments to Maker District are final and non-refundable. Any amount of Participation Fees that are not paid when due shall accrue interest from the day following the day on which payment was due until the end of the day on which such amount is paid in full. Interest shall be computed at a rate of the lower (i) one (1%) percent per full or partial calendar month or (ii) the highest enforceable rate of interest under applicable law, calculated on a daily basis from the date of invoice until the end of the date on which such amount is received by Maker District.
7. Ownership and Rights. Maker District has and retains sole ownership of the Marketplace and the store front, and all content, material, and information thereon or related thereto (other than solely the Participant Content), and all data and information collected on or in connection with the Marketplace or the Store or any other store, and all copyrights, trademark rights, patent rights, and other intellectual property rights whatsoever, anywhere, including all of Maker District’s trademarks, service marks, trade names, trade dress, logos, marks, and names, including “MAKER DISTRICT” (the “Maker District Property”). Maker District does not grant, assign, or transfer any right, title, interest, license, use right, or claim in or to or regarding any Maker District Property. .
8. DISCLAIMER. MAKER DISTRICT MAKES AVAILABLE AND PROVIDES THE OPPORTUNITY TO ESTABLISH, MAINTAIN, AND OPERATE THE STORE, THE PARTICIPATION IN THE MARKETPLACE ON THIS WEBSITE, THE VIRTUAL STORE FRONT, THE STORE, AND ANY SERVICES RELATED THERETO “AS IS”. PARTICIPANT’S ESTABLISHMENT, MAINTENANCE, AND OPERATION OF THE STORE AND PARTICIPATION IN THE MARKETPLACE ON THIS WEBSITE IS AT PARTICIPANT’S OWN RISK. MAKER DISTRICT DOES NOT MAKE ANY, AND MAKER DISTRICT HEREBY DISCLAIMS ANY AND ALL, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED AND STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, WORKMANSHIP, TITLE, LICENSE, AND NON-INFRINGEMENT, WITH REGARD TO AND IN CONNECTION WITH THE STORE, THE ESTABLISHMENT, MAINTENANCE, OR OPERATION OF THE STORE, THE PARTICIPATION IN THE MARKETPLACE ON THIS WEBSITE, THE VIRTUAL STORE FRONT, ANY MAKER DISTRICT PROPERTY, ANY PRODUCTS OR SERVICES OFFERED, SOLD, OR PROVIDED THROUGH THE STORE, ANY SERVICES OF MAKER DISTRICT, ANY ACCESS, ACCESSIBILITY, OR FAILURE TO ACCESS THE STORE, ANY DOWNTIME OR INTERRUPTION OF CONNECTIVITY TO THE STORE, THAT ANY ACCESS AND ACCESSIBILITY THERETO AND ANY USE THEREOF IS UNINTERRUPTED OR FREE OF ERROR, OR THAT PARTICIPANT WILL HAVE ANY COMMERCIAL SUCCESS WITH THE STORE, OR OTHERWISE RELATED TO THIS AGREEMENT OR ANY PERFORMANCE HEREUNDER. THESE DISCLAIMERS ARE A MATERIAL PART OF THIS AGREEMENT.
9. LIMITATION OF LIABILITY.
a. MAKER DISTRICT IS NOT AND WILL NOT BE LIABLE, AND DISCLAIMS ANY AND ALL LIABILITY, TO PARTICIPANT OR ANY THIRD PARTY IN PRIVITY WITH OR CLAIMING THROUGH PARTICIPANT WITH REGARD TO AND IN CONNECTION WITH THE STORE, THE ESTABLISHMENT, MAINTENANCE, OR OPERATION OF THE STORE, THE PARTICIPATION IN THE MARKETPLACE ON THIS WEBSITE, THE VIRTUAL SPACE FOR THE STORE, ANY PRODUCTS OR SERVICES OFFERED, SOLD, OR PROVIDED THROUGH THE STORE, ANY SERVICES OF MAKER DISTRICT, ANY ACCESS, ACCESSIBILITY, OR FAILURE TO ACCESS THE STORE, ANY DOWNTIME OR INTERRUPTION OF CONNECTIVITY TO THE STORE, THAT ANY ACCESS AND ACCESSIBILITY THERETO AND ANY USE THEREOF IS UNINTERRUPTED OR FREE OF ERROR, OR THAT PARTICIPANT WILL HAVE ANY COMMERCIAL SUCCESS WITH THE STORE, OR OTHERWISE RELATED TO THIS AGREEMENT OR ANY PERFORMANCE HEREUNDER, AND INCLUDING ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE, LOSSES, OR DAMAGES ARISING FROM OR RELATED TO ANY PRODUCT OR SERVICE OFFERED, SOLD, OR PROVIDED BY PARTICIPANT, AND INCLUDING ANY SLOW CONNECTION, INTERRUPTED CONNECTION, DOWNTIME, UNAVAILABILITY, OR INACCESSIBILITY OF THE MARKETPLACE OR THE STORE FOR ANY DURATION, OR ANY LOSS, CORRUPTION, OR MISAPPROPRIATION OF ANY PARTICIPANT CONTENT OR ANY DATA OR INFORMATION GENERATED BY PARTICIPANT THROUGH THE STORE.
b. TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW, IN NO EVENT IS MAKER DISTRICT OR ANY OF ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR CONTRACTORS LIABLE FOR ANY DAMAGES OR LOSS, INCLUDING ANY INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT OR OTHER DAMAGES OF ANY KIND, LOSS OF PROFIT, LOSS OF BUSINESS, OR TANGIBLE OR INTANGIBLE LOSS OR DAMAGES. PARTICIPANT HEREBY WAIVES ANY AND ALL CLAIMS, RIGHTS, AND REMEDIES FOR ANY DAMAGES OF ANY KIND AGAINST MAKER DISTRICT TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, INCLUDING ANY DAMAGES AND LIABILITY IDENTIFIED IN SECTION 9(a) OF THESE TERMS.
c. IF AND TO THE EXTENT THAT MAKER DISTRICT IS LIABLE FOR ANY DAMAGES THAT ARE NOT LEGALLY EXCLUDED OR EXCLUDABLE UNDER THIS SECTION 9, THE AGGREGATE AND COMPLETE LIABILITY TO PARTICIPANT OR ANY THIRD PARTY IN PRIVITY WITH OR CLAIMING THROUGH PARTICIPANT SHALL BE LIMITED TO THE AMOUNT OF THE PARTICIPATION FEES PAID BY PARTICIPANT TO MAKER DISTRICT UNDER THIS AGREEMENT.
d. Without limiting any other provisions, terms, or conditions of this Section 9, Maker District shall not be liable for any failure or delay in the performance of any of its obligations under these Terms to the extent such failure or delay is caused by any cause, event or condition arising or resulting from any act of war, terrorism, civil riot or rebellion, law, seizure or order or requirement of any governmental or quasi-governmental authority, pandemic (including COVID-19 or any other virus), epidemic, quarantine, embargo or other similar action of a governmental or quasi-governmental authority, extraordinary element of nature or act of God, fire, flood, or storm, strike, lockout or other labor trouble, delays or shortages of supplies of any kind, or any other force majeure, or any other event or condition outside the reasonable control of Maker District.
e. THIS EXCLUSION AND LIMITATION OF LIABILITY IS A MATERIAL PART OF THIS AGREEMENT.
10. Indemnity. Participant agrees to indemnify, defend, and hold harmless Maker District and its affiliates, officers, employees, agents, and contractors from any damages, liabilities, losses, penalties, fines, costs, and expenses (including reasonable attorneys' fees), and any claim, suit, action, investigation, demand, judgment, order, settlement, and proceeding, arising in connection with Participant’s establishment, maintenance, and operation of the Store, any allegation of infringement of any person’s intellectual property right as a result of the Store, any content thereof, or any product or service offered, sold, or provided in or through the Store, any and all offers, sales, and provisions of products or services in or through the Store, any and all transactions related thereto, any claims under any such transactions, including any claims of breach of or non-performance under any transaction, any products liability related to any product or service sold in the Store, and any other activity of Participant related to the Store.
11. Term and Termination.
a. This Agreement shall commence upon acceptance of this Agreement by or on behalf of User and continue to be in effect until termination in accordance with Section 6(b) or Section 11(b) or Section 11(c) of this Agreement.
b. Participant may terminate this Agreement for any reason at any time by closing the Store or canceling Participant’s user account under the User Terms.
c. Maker District may terminate this Agreement effective immediately by shutting down the Store or canceling Participant’s user account under the User Terms, without need for written notice of termination:
(i) in the event of a breach, or if Maker District has evidence indicating a breach, by Participant of any term, condition, or provision of this Agreement, including Section 3, or incorporated into this Agreement; or
(ii) if Participant abandons or discontinues the Store, takes steps to dissolve or cease to exist, admits its inability to pay its debts as they become due, files or is or becomes subject to a petition in bankruptcy (or similar reorganization proceeding) or makes a general assignment for the benefit of its creditors, or becomes subject to the appointment of a receiver; or
(iii) upon discontinuing this Website or the Marketplace including the Store.
d. Upon termination of this Agreement, Participant will no longer have any access to or use of the Store or any Participant Content, or any data or information of Participant, in the Store or under the possession or control of Maker District, and Maker District has no further obligations to User, including no obligation to provide any space or opportunity for a store.. Section 3(d) will apply. The terms, conditions, and provisions under Sections 3(d), 6 (with regard to any amount owed and unpaid by User), 7, 8, 9, 10, and 12 of these Terms, and this Section 11(d), shall continue in effect after such termination.
a. Maker District and Participant are independent parties, each without the power or authority to bind, contract, or commit the other.
b. Each and any notice, claim, or demand to Maker District under these Terms shall be in writing and send to Maker District, Inc., Attention: Chief Executive Officer, 1251 William D. Tate Avenue, #3667, Grapevine, TX 76099, United States of America, with a copy thereof by e-mail to (which copy shall not be deemed sufficient for Maker District having received such notice, claim, or demand) email@example.com.
c. Maker District does not waive, expressly or implicitly, any right or remedy, whether in this Agreement or otherwise, including by selection or not selecting any right or remedy. Any waiver of any right or remedy by Maker District requires an express prior written agreement signed by an officer or us.
d. Should any section, or portion thereof, of this Agreement be held invalid by reason of any law existing now or in the future in any jurisdiction by any court of competent authority or by a legally enforceable directive of any governmental body, such section or portion thereof shall be validly reformed so as to approximate the intent of this Agreement as nearly as possible and, if unreformable, shall be deemed divisible and deleted with respect to such jurisdiction; this Agreement shall not otherwise be affected.
e. When interpreting this Agreement, this Agreement and its provisions shall not be interpreted against Maker District as the drafter. Words of any gender used in this Agreement are intended to include any other gender, and words in the singular number include the plural, and vice versa, unless the context clearly indicates otherwise. The words “include” and “including” mean “including without limitation” or “including, but not limited to” and shall not be construed as terms of limitation, and the principle ejusdem generis shall not apply.
f. This Agreement constitute the entire terms and agreement between Maker District and Participant regarding the access to and use of the Services and any opportunity for of Third Party Offerings on this Website. Participant may not assign or transfer this Agreement or any right under this Agreement, or delegate any obligation, responsibility, or liability under this Agreement, to any other person without Maker District’s express prior written consent, which shall be in Maker District’s sole discretion. Maker District may assign or transfer this Agreement, or any right hereunder, or delegate or subcontract any Services or other performance, or any obligation, responsibility, or liability under this Agreement, to any other person, at any time, as Maker District determines in its sole discretion.
g. This Agreement, and their interpretation, construction, and enforcement, will be governed by, and any dispute and the resolution of any dispute under or related to this Agreement, this Website, or any Content will be resolved and decided under, the laws of the State of Texas, without regard to its conflicts of law provisions whose application would result in the application of the law of a different jurisdiction. Any action or proceeding related to such dispute shall be subject to the non-exclusive jurisdiction of, and Participant hereby expressly submit to the personal jurisdiction of, Texas state and U.S. federal courts in Dallas County, Texas.
Updated April 19, 2023.
© 2023 by Maker District, Inc. All Rights Reserved.
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