This TECHHUB MARKETPLACE VENDOR SUBSCRIPTION AGREEMENT (“Agreement”) is a legal document that explains your rights and obligations as a subscriber of TechHub Marketplace from National Safety Council (“NSC”), a federally chartered not-for-profit corporation, with offices located at 1121 Spring Lake Drive, Itasca, Illinois 60143. Please read it carefully. You and NSC are each a “Party” and together are the “Parties.” Certain capitalized terms are defined in Article 12 hereof.
SECTION 11 CONTAINS A BINDING ARBITRATION AGREEMENT. IT AFFECTS HOW DISPUTES ARE RESOLVED. PLEASE READ IT. IF YOU ARE A SUBSCRIBER AND LIVE OUTSIDE THE UNITED STATES, SECTION 11 DOES NOT APPLY TO YOU.
NSC operates e-commerce websites directly which permit Vendors to offer products (“Products”) for sale to customers through one or more of NSC’s e-commerce websites (“TechHub Marketplace”); and
WHEREAS, you want to offer and sell Products to Customers on or through the TechHub Marketplace.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
Vendors to whom these terms apply include, without limitation: technology providers offering safety solutions (each, a “Vendor” or “You”).
BY ACCESSING AND USING OUR SITES AND SERVICES, YOU ATTEST THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE LEGALLY BOUND BY THESE GENERAL VENDOR TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MUST NOT ACCESS OR USE OUR SITES OR SERVICES.
In consideration of the premises set forth above, you, the Vendor, hereby agree as follows:
1. Definitions
1.1. Applicable Law means all requirements of federal, state, local or foreign governmental statutes, laws, rules, regulations, ordinances, orders and decrees applicable to this Agreement and any actions and transactions contemplated hereby.
1.2. Approved Vendor: A technology vendor that has paid and authorized by NSC to offer Product Listings on the TechHub Marketplace.
1.3. Confidential Information: Any data or information concerning NSC and its subsidiaries and their business and operations, including information (in any form or media) regarding their technology, methods of operation, businesses, processes, programs and databases, business methods, finances, management, or any other information relating to the TechHub Marketplace (whether constituting a trade secret or proprietary or otherwise), which has value to NSC and is generally treated by NSC as being confidential; provided, however, that Confidential Information does not include any information that has been voluntarily disclosed to the public by NSC (except where such public disclosure has been made without authorization) or that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means. Without limiting the foregoing, Confidential Information includes all data and information of NSC which constitute trade secrets under Applicable Law, and includes the existence and contents of this Agreement and any of the details of the Websites and the TechHub Marketplace.
1.4. Covered Claim: means a Third-Party suit, claim, or demand of any kind arising out of:
a. Vendor’s breach of this Agreement or Applicable Law;
b. death, illness, personal injury, or property damage arising out of or resulting in any way from any actual or alleged defect in a Product;
c. any act or omission of the Vendor, its agents, employees or contractors relating to the sale of a Product;
d. any actual or alleged breach of Vendor’s written warranty for a Product;
e. any actual or alleged infringement of any patent, trademark, copyright, trade secret, trade dress or other intellectual property right of another Person related to a Product, Vendor Information or Vendor Mark;
f. a Product Listing;
g. a Product actually or allegedly violating any Applicable Law; or
h. Vendor’s packaging, labeling, or advertising of a Product.
1.5. Customer: Any user accessing the TechHub Marketplace, whether or not registered, or placing or receiving any order for Products via a Marketplace. Customers may include, without limitation, potential purchasers of a Product on the TechHub Marketplace, vendors, industry insiders, or media relations.
1.6. Customer Order: An order of a Product by a Customer.
1.7. Customer Personal Information: Any data or information related to identified or identifiable Customers or related Third-Parties (such as Third-Parties that Customers designate as recipients of shipments).
1.8. IP Rights: All intellectual property rights which now or hereafter exist throughout the world, whether conferred by operation of law, contract or license, including, without limitation, patents, trademarks, trade names, service marks, service names, rights of authorship, moral rights, mask-works, marks, rights of publicity, ornamental appearance and trade dress, trade secret rights, inventions, technology (whether patentable or not and whether or not reduced to practice), Confidential Information, software and databases, rights of publicity, patents, designs, algorithms, and other industrial property rights.
1.9. Products: The technology, software, content, digital materials, and other items and services as made available by Vendor and listed for sale to Customers on the TechHub Marketplace.
1.10. Product Listings: The listings Vendor creates for display on the TechHub Marketplace related to the sale of Products (including Vendor name & logo, product name, screenshots, short/unique descriptions, reviews, and all other data to inform or persuade a Customer towards Vendor’s Product).
1.11. Site: Vendor’s website landing page when Customer desires to purchase Products through the TechHub Marketplace’s Vendor Product Listing.
1.12. Vendor Information Page: all information communicated to you during the Application Process information posed on the TechHub Marketplace that contains the TechHub Marketplace terms and conditions, policies and procedures and other information for vendors.
1.13. Vendor Marks: means all of Seller’s domestic and foreign trademarks, service marks, trade names, logos and domain names.
2. TechHub Marketplace
2.1. REGISTRATION AS A SUBSCRIBER; APPLICATION OF TERMS TO YOU; YOUR ACCOUNT, ACCEPTANCE OF AGREEMENTS. TechHub Marketplace is an online service offered by NSC. You become a subscriber of NSC ("Subscriber") by completing the registration of a TechHub Marketplace account.
2.2. Contracting Party. For any interaction with TechHub Marketplace your contractual relationship is with NSC. Except as otherwise indicated herein or at the time of the transaction including but not limited to purchases from another Subscriber in a Subscription Marketplace.
2.3. Registration. To access TechHub Marketplace in order to offer and sell Products, you must register on that Marketplace by completing online a registration form. If applicable, you may register to offer and sell on more than one Marketplace. By registering on one or more TechHub Marketplace, you agree to be bound by the terms of this Agreement, as amended from time to time. NSC may accept or reject your registration for one or more TechHub Marketplace.
2.4. Access and Termination of Access to TechHub Marketplace. If NSC accepts your registration for TechHub Marketplace, NSC will provide you access to the TechHub Marketplace as an Approved Vendor. NSC may terminate your access to TechHub Marketplace immediately and without notice to you.
2.5. Selling on a Marketplace. Sales of Products on TechHub Marketplace are between you and your Customers; NSC is not the seller and is not a party to such transactions. Your listing of Products on TechHub Marketplace does not imply that NSC endorses or is affiliated with you or your Products.
2.6. Vendor Information. You will ensure that all information and data you provide to NSC for use in TechHub Marketplace is accurate, complete and not misleading, and that it complies with Applicable Law. You will ensure that all electronic information and data transmitted to NSC or a Customer does not contain any harmful code or other feature designed to obtain unauthorized access to or information from or corrupt, damage or degrade any computer system, application or code of any TechHub Marketplace.
2.7. Permits and Licenses. You will obtain all permits and licenses required to operate its business in accordance with Applicable Law.
2.8. Product Listings.
a. Standards. You will create a Product Listing for each Product you wish to offer and sell on TechHub Marketplace. Each Product Listing shall be accurate, complete, not misleading, appropriate for the TechHub Marketplace to which they are posted, and comply with Applicable Law and the TechHub Marketplace Policies.
b. Compliance. You will ensure your Product Listings will not (i) violate any intellectual property rights of any person, firm or entity (each a “Person”); (ii) contain defamatory or discriminatory content; (iii) constitute an invasion of a party’s rights of privacy or publicity; or (iv) reflect unfavorably on NSC, the TechHub Marketplace or other Sellers on the TechHub Marketplace.
c. Prohibitions. you will not create Product Listings that:
i. offer products that are inauthentic, counterfeit, replicas or knock-off goods;
ii. offer Products you do not currently have in stock;
iii. contain offensive content in a business professional setting, racially, sexually or ethnically discriminatory content, political information or advocacy, pyramid schemes, franchise or business opportunities or any content that in NSC’s sole discretion is illegal, immoral, defamatory, objectionable or inappropriate; or
iv. are false, misleading or otherwise in violation of any applicable laws or regulations, including without limitation, the Federal Trade Commission Act and regulations promulgated thereunder, state consumer protection laws and any federal, state, local and foreign laws regarding spam and text messages.
d. Legality. You are solely responsible for the legality of the content for your Product Listing on the TechHub Marketplace.
e. Appropriateness. NSC has the sole right to determine whether a product is appropriate to be offered and sold on the TechHub Marketplace. If we determine that a product being offered for sale on the TechHub Marketplace is not appropriate, it must be immediately removed from the TechHub Marketplace, and any such determination by us is final, binding and not subject to appeal or discussion. Failure to so remove such a product will constitute a breach of this Agreement.
f. Rights of NSC. NSC may modify, reject or remove any Product Listing for any reason, and may combine two or more Product Listings or elements of two or more Product Listings.
g. Pricing. You will establish prices for your Products in compliance with the TechHub Marketplace Policies and ensure that each Product’s price (including any discount, rebate, low price guarantee), quality, shipping and handling charges and other benefits are at least as favorable to Customers on the NSC TechHub Marketplace as those of the same Products available on your other sales distribution channels.
h. Remedies for Incorrect Pricing. If you provide incorrect pricing information in a Product Listing, NSC may, at your expense, take any commercially reasonable actions it deems appropriate to avoid, mitigate or repair the harm to NSC due to the pricing error, including without limitation requiring you to honor all Product purchases at the incorrect price and compensating Customers for any inconvenience caused by the pricing error. On demand from NSC, you shall immediately reimburse NSC for all losses, costs, expenses and liabilities (collectively “Losses”) NSC incurs as a result of any pricing errors on your Product Listing.
2.9. NSC Policies. NSC may publish or amend policies governing your access to or use of TechHub Marketplace (collectively “Policies”). NSC will post any Policies or amendments to Policies on the Application Page. If you register on TechHub Marketplace or offers products for sale on TechHub Marketplace, you will be bound by the TechHub Marketplace’s then current Policies. Any Policies or amendments to Policies will be immediately effective (or effective at another time specified by NSC) without notice other than the posting thereof on the Application Page.
3. Product Sales
3.1. Customer Orders.
a. Link through License. NSC will not process Customer Orders on your behalf and is not your agent for your Products sold on TechHub Marketplace. You grant a nonexclusive, nontransferable, revocable license to link from the TechHub Marketplace to your Site during the term of this Agreement in accordance with terms of and conditions set forth in this Agreement.
b. Licensor Marks. Licensor grants to Licensee a nonexclusive, nontransferable, revocable license (without the right to sublicense) to use the Licensor Marks during the term of this Agreement solely for the purpose of indicating to the users of the Linking Site the hypertext link from the Linking Site to the Licensor Site.
3.2. Customer Returns.
a. Vendor will Handle Returns. You will handle all Customer returns of its Products. If you accept a Customer return, you will notify NSC of the return.
b. Vendor Return Policy. you will submit a copy of your current return policy (the “Vendor Return Policy”) using the NSC Portal and shall submit any changes thereto in the same manner. you will honor all Customer returns of Products in accordance with the Vendor Return Policy published at the time a Customer purchased a Product. The Vendor Return Policy must:
i. apply to all Products;
ii. spell out clearly and completely the process for Customers to return Products directly to Vendor; and
iii. be at least as favorable to Customers as the Vendor’s own return policy for non-Marketplace transactions.
c. Refunds. If you accept a Customer return and notify NSC of the return pursuant to section 3.3(a), NSC may refund Seller a portion of NSC’s commission on that Customer Order as set forth in the Policies.
3.3. Customer Service Issues. You will handle all customer service issues related to your Products. NSC is not responsible for handling customer service issues related to your Products, and NSC may direct Customers who contact it with service issues related to your Products to contact you using the contact information you have provided in the NSC Vendor Registration. If you do not handle a customer service issue or a request from NSC to handle that issue, NSC may take any actions necessary to ensure your compliance, and NSC will not be liable to you for any results of those actions. If you do not handle a customer service issue to NSC’s satisfaction, NSC may contact the Customer and take any action to resolve the issue, and you may be liable for all of NSC’s Losses with respect thereto.
3.4. Customer Reviews and Ratings. NSC may ask Customers to rate or provide comments regarding Vendor or the Products, and may post any ratings or comments on the appropriate Marketplace for public display.
4. Fees; Commissions; Payments from Vendor
4.1. Annual Subscription Fees. Based on your selection during the Application process, you may choose a subscription model option. Upon selection of a subscription option you will pay NSC the annual subscription fees specified on the Vendor Information Page for access to the TechHub Marketplace (the “Annual Subscription Fees”) and may change the Annual Subscription Fees from time to time by posting the new fees on the Vendor Information Page; any revised Annual Subscription Fees will be effective from the date they are posted (or effective at another time specified by ABC) without notice to you other than the posting thereof on the Vendor Information Page.
4.2. Commissions. Alternative to Sectio 4.1 Annual Subscription Fees, you may choose a commission model option. Upon selection of a commission option NSC will be entitled to the following commission:
a. Customer Purchases. Purchases made by Customers of your Products shall entitle NSC to a commission according to the “Commission Rate Schedule” specified in the Vendor Information Page for all purchases made by Customer of your Products, whether such product is posted on the NSC Marketplace or not. NSC may change the Commission Rate Schedule by posting any changes to the Vendor Information Page, and those changes will be effective from the date they are posted (or effective at another time as specified by NSC) without notice to you other than the posting thereof on the Vendor Information Page.
b. Vendor Sales Report. It is your responsibility to disclose to NSC the sale of all products made by a Customer directed to you via the TechHub Marketplace within 45 days of a purchase including a detailed summary of all purchases made for the applicable month, less returns credited against the account and/or unsettled (i.e., not yet paid for) purchases (“Vendor Sales Report”). NSC shall issue an invoice for the commission on sale of all products. Failure to submit an accurate or timely Vendor Sales Report is an express breach of this Agreement and shall result in an immediate termination of your access and use of the TechHub Marketplace and you will be responsible for tendering to NSC all Commissions including but not limited to liquidated damages to NSC.
4.3. Payments from Vendor. NSC will invoice you based on the model selected during the Application Process.
a. Subscription Model Option. On or near your anniversary billing date each year NSC shall promptly submit invoices to you for payment. Payment shall be made within thirty (30) days of receipt of NSC’s invoice.
b. Commission Model Option. Within 30 days of NSC receipt of the Vendor Sales Report, NSC shall promptly submit invoices to you for payment. Payment shall be made within thirty (30) days of receipt of NSC’s invoice.
5. Term
5.1. Term. The initial term of this Agreement shall begin on the Effective Date and continue until the first anniversary thereof. Thereafter, this Agreement shall automatically renew for successive one (1) year terms unless either Party provides the other Party with written notice of its intent not to renew at least ninety (90) days prior to the expiration of the then-current term. The initial term and the renewal term are together the “Term.”
5.2. Termination for Cause. Unless provided otherwise within this Agreement, either Party may terminate this Agreement upon the material breach of the other Party, if such breach remains uncured for ten (10) days following written notice to the breaching Party.
5.3. Termination for Convenience. Customer may terminate this Agreement at any time for any reason or no reason upon no less than thirty (30) days’ prior written notice.
6. Intellectual Property
6.1. Grant of License by NSC. NSC hereby grants to you a non-exclusive, revocable, nontransferable, worldwide license to offer and sell Products on the TechHub Marketplace to Customers, subject to the terms of this Agreement.
6.2. Grant of License by Vendor. You hereby grant NSC and its subsidiaries a royalty-free, non-exclusive, worldwide, royalty-free license to use and to display, reproduce, distribute, perform, modify, re-format, merge, create derivative works of or otherwise commercially or non-commercially exploit in any manner Vendor Information as may be necessary for the TechHub Marketplace. NSC shall not alter any Vendor Marks from the forms provided by you except to the extent necessary for presentation, so long as the relative proportions and colors of the Vendor Marks remain the same. NSC may also use Vendor Information in any way that is allowed without a license from Seller under Applicable Law.
6.3. Ownership of Intellectual Property Rights. NSC will own all right, title and interest in and to any IP Rights in the TechHub Marketplace and all data collected or stored in connection with the TechHub Marketplace. Except as expressly provided in this Agreement, Vendor will not have any ownership in or license to any IP Rights and data. If Vendor is deemed to have any right, title or interest in all or any part of the foregoing, then Vendor hereby assigns all such right, title and interest to NSC, with this assignment continuing throughout the Term.
6.4. Infringement of Third-Party Rights. Vendor shall ensure that its Products and Vendor Information do not infringe the intellectual property or other rights of any other Person. Vendor shall immediately notify NSC of any actual or alleged infringement of any intellectual property or other right of another Person in connection with the Products or Vendor Information. Vendor shall be responsible for any losses related to any actual or alleged infringement of another Person’s intellectual property rights in connection with Vendor’s Products or Vendor Information.
7. Confidential Information; Customer Personal Information; Use of TechHub Marketplace
7.1. Treatment of Confidential Information by Vendor.
a. Use. Vendor shall use Confidential Information only for performing under this Agreement.
b. Disclosure. Vendor shall not disclose or permit the disclosure of Confidential Information to any Third-Party except to respond to a valid subpoena or similar legal process.
c. Return or Destruction. Vendor shall promptly return or destroy any Confidential Information or records containing Confidential Information at NSC’s request, except to the extent the Confidential Information or records are:
i. required to be maintained under Applicable Law; or
ii. necessary for purposes of prosecuting or defending a claim related to this Agreement.
7.2. Customer Personal Information.
a. Use. NSC will own all Customer Personal Information that it or you collect. You will use Customer Personal Information only in accordance with Applicable Law and only to perform your obligations or exercise your rights under this Agreement. You will not:
i. transmit Customer Personal Information to any Third-Party except for purposes of performing under this Agreement; or
ii. use Customer Personal Information to: (A) send marketing or other materials to or contact any Person except for purposes of performing under this Agreement; or (B) sell or offer to sell any goods or services to any Person other than through a Web Market or Markets.
b. Protection. You will protect Customer Personal Information from unauthorized access, use, deletion, degradation, encryption, or disclosure (each a “Data Breach”). If you learn of any Data Breach, you will immediately:
i. notify NSC of the Data Breach;
ii. cooperate fully with NSC to respond to the Data Breach; and
iii. comply with Applicable Law with respect to the breach.
c. Security Measures.
i. You will maintain industry standard data security measures and processes.
ii. If you obtain any Customer credit card data in connection with this Agreement, you will also comply with Payment Card Industry Data Security Standards.
iii. You will not transmit Customer Personal Information in any unsafe manner or to any Person unless you reasonably believes that Person will maintain the confidentiality and security of the Customer Personal Information.
7.3. Use of TechHub Marketplace.
a. Security. You will maintain the security of your log-in credentials to all TechHub Marketplace. You are responsible for any loss, expense or liability caused by the loss or breach of those credentials.
b. Restrictions on Use. You will not use a TechHub Marketplace or any of its systems, code or application program interfaces:
i. to violate the security of, or gain unauthorized access to, any computer, computer network, or other device or system, in each case related to a Web Market;
ii. to discover passwords or security encryption codes;
iii. to use any robot, spider, site search or retrieval application, or other device to retrieve or index any portion of TechHub Marketplace;
iv. to collect any information about Customers;
v. to reformat or frame any portion of the TechHub Marketplace;
vi. to attempt to duplicate all or any part of TechHub Marketplace or its code, attempt to reverse engineer or decompile any code, or attempt to create a substitute or competing marketplace service;
vii. in a manner that would be detrimental to the function of the TechHub Marketplace or to other sellers’ or Customers’ use of or access to the TechHub Marketplace.
c. No Use as Archives. You acknowledge that NSC is not providing archive services and that the TechHub Marketplace are not intended to function as archives. You are responsible for maintaining independent archival and backup copies of your information and data.
8. Audit and Dispute Rights for Commission Model Option
8.1. Audit. In connection with your conversion tracking activities under the Commission model option, NSC shall be entitled to a copy of all information and reports of any kind generated by a tracking software of NSC’s choice and necessary to confirm all referred user purchases and corresponding Commission payments. Each party acknowledges and agrees that the information contained in any such reports shall be considered “Confidential Information” as defined herein. To the extent that NSC has any questions or disputes regarding the Vendor Sales Report data and/or Commission payment provided by you, NSC and its financial and data security auditors (collectively, "Auditors") will have the right to inspect, examine and audit (collectively, "Audit") your records, data, practices and procedures that are relevant to determining the accuracy of Vendor Sales Report and Commission payments.
8.2. Notice of Audit. Audits will be conducted during normal business hours or as mutually agreed between the Parties, except in cases of emergency, and shall take place upon no less than five (5) days' notice. You will fully cooperate with NSC and its Auditors in conducting Audits and will provide such assistance as is reasonably required.
8.3. Cost of Audit. Audits will be conducted at NSC's expense; provided, however, if any financial Audit determines that you under-reported or under-paid NSC by an amount equal to or greater than three percent (3%), then in addition to Commission payment of such under-payment (which is payable regardless of the amount), you will reimburse NSC for the cost of the Audit and NSC has the option to terminate this Agreement immediately upon notice. In support of NSC's Audit rights, you will keep and maintain records pertinent to substantiating Vendor Sales Report and Commission payments.
9. Disclaimer of Warranties; Limitations of Liability
9.1. WARRANTY DISCLAIMERS. NSC DOES NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO CUSTOMER. NSC PROVIDES THE TECHHUB MARKETPLACE “AS-IS” AND WITH ALL FAULTS. NSC SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE WEB MARKETS AND/OR OTHER SERVICES PROVIDED WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY OR ACCURACY.
Without limiting the foregoing:
a. NSC does not warrant that Vendor’s use of the TechHub Marketplace will be uninterrupted, error-free, or virus-free.
b. NSC does not warrant or guarantee Vendor’s results from using the TechHub Marketplace, the sale of any Products on the TechHub Marketplace, or any services provided by NSC to Vendor in connection with the TechHub Marketplace.
9.2. LIABILITY LIMITATIONS. NSC SHALL NOT BE LIABLE UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF NSC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3. MAXIMUM LIABILITY. IN ADDITION TO THE FOREGOING LIMITATIONS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NSC, INCLUDING WITHOUT LIMITATION LIABLITY ARISING OUT OF BREACH OF CONTRACT, TORT, STRICT LIABILITY, PRODUCT LIABILITY, NEGLIGENCE, BREACH OF WARRANTY OR OTHERWISE EXCEED THE LESSER OF (i) THE FEES SELLER PAID DURING THE THIRTY-DAY PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE LIABILITY AND (ii) US $100.00.
10. Indemnification
10.1. Vendor Indemnity. Vendor hereby defends, indemnifies and holds harmless NSC, its subsidiaries and its officers, directors and employees (collectively the “NSC Parties”) from all Losses suffered or incurred in connection with any Covered Claim.
10.2. Indemnification Process. If NSC seeks indemnification for a Covered Claim, it shall provide Vendor reasonably prompt written notice of the Covered Claim. The failure to give such prompt written notice shall not, however, relieve Vendor of its indemnification obligations, except and only to the extent that Vendor forfeits rights or defenses by reason of such failure or actually incurs an incremental out-of-pocket expense by reason of such failure. Vendor shall respond reasonably promptly to NSC’s request and select counsel reasonably acceptable to NSC to handle the Covered Claim. If Vendor does not so respond reasonably promptly, NSC shall select counsel and Vendor shall pay all fees and expenses of such counsel. NSC or another NSC Party may also hire counsel at its own expense to participate in the defense of a Covered Claim. Vendor shall not bind an NSC Party in a settlement of a Covered Claim without that NSC Party’s prior written consent.
11. DISPUTE RESOLUTION/BINDING ARBITRATION
This Section 11 shall apply to the maximum extent permitted by applicable law. IN PARTICULAR, IF YOU ARE A SUBSCRIBER AND LIVE OUTSIDE THE UNITED STATES, THIS SECTION 11 DOES NOT APPLY TO YOU.
Most concerns can be resolved through the National Safety Council Customer Service. If NSC is unable to resolve your concerns and a dispute remains between you and NSC, this Section explains how the parties have agreed to resolve it.
11.1. Must Arbitrate All Claims Except Intellectual Property, Unauthorized Use, Piracy, or Theft.
YOU AND NSC AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION. THAT INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THIS AGREEMENT; OR (iii) YOUR USE OF TECHHUB MARKETPLACE, YOUR ACCOUNT, HARDWARE OR THE CONTENT AND SERVICES. IT APPLIES REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, AND INCLUDES ALL CLAIMS BROUGHT ON BEHALF OF ANOTHER PARTY.
However, this Section 11 does not apply to the following types of claims or disputes, which you or NSC may bring in any court with jurisdiction: (i) claims of infringement or other misuse of intellectual property rights, including such claims seeking injunctive relief; and (ii) claims related to or arising from any alleged unauthorized use, piracy, or theft.
This Section 11 does not prevent you from bringing your dispute to the attention of any federal, state, or local government agencies that can, if the law allows, seek relief from us for you.
An arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party. YOU UNDERSTAND THAT YOU AND NSC ARE GIVING UP THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BEFORE A JUDGE OR JURY.
11.2. Try to Resolve Dispute Informally First. You and NSC agree to make reasonable, good faith efforts to informally resolve any dispute before initiating arbitration. A party who intends to seek arbitration must first send the other a written notice that describes the nature and basis of the claim or dispute and sets forth the relief sought. If you and NSC do not reach an agreement to resolve that claim or dispute within thirty (30) calendar days after the notice is received, you or NSC may commence an arbitration.
Written notice to NSC must be sent via postal mail to:
National Safety Council
ATTN: CFO, Arbitration Notice
1121 Spring Lake Drive
Itasca, IL 60184
United States of America
11.3. Arbitration. The U.S. Federal Arbitration Act applies to this Section 11 as far as your country’s laws permit. The arbitration will be governed by the Consumer Arbitration Rules (or the Commercial Arbitration Rules if the Consumer Arbitration rules are inapplicable) of the American Arbitration Association ("AAA") as modified by this Agreement. Rules are available at http://www.adr.org. The arbitrator is bound by the terms of this Agreement.
The AAA will administer the arbitration. Outside the U.S., NSC will select a neutral arbitration provider that uses these or similar rules. It may be conducted through the submission of documents, by phone, or in person in the county where you live or at another mutually agreed location.
11.4. Expenses. The costs of administering the Arbitration shall be born equally by the parties. Each party shall also bear its own expenses with respect to its participation in the Arbitration.
12. Insurance
12.1. You will maintain insurance coverage and limits as required by the Policies. All of the required policies shall:
a. list NSC and all of its subsidiaries, officers, directors and employees as an additional insureds;
b. include waivers of subrogation in favor of NSC; and
c. be primary and noncontributory with any insurance that NSC carries.
13. General Provisions
13.1. Force Majeure. Neither Party shall be liable for delay or failure in the performance of its obligations hereunder if such delay or failure arises from the occurrence of events beyond the reasonable control of such Party, including but not limited to, fire, explosion, strike, riot, terrorist activity, war, insurrection, acts of nature, epidemics, pandemics, outbreaks of communicable disease, viral outbreaks, quarantines or national or regional emergencies, actions of any governmental authority and acts of God. Notwithstanding the foregoing, any delay or failure exceeding thirty (30) days shall be grounds for termination by either Party.
13.2. Independent Contractor. The Parties acknowledge that no agency, partnership, joint venture or employer-employee relationship is created by this Agreement. Neither Party will have the power to bind or obligate the other Party. Neither Party’s employees and agents are employees or agents of the other Party.
13.3. Notices. All notices and other communications under this Agreement shall be in writing and may be given by any of the following methods: (i) personal delivery; (ii) registered or certified mail, postage prepaid, return receipt requested; or (ii) reputable national delivery service requiring acknowledgment of receipt, including electronic mail. Any such notice or communication shall be sent to the appropriate Party. If to Vendor, the address and contact provided in the Application Process; if to NSC:
National Safety Council
1121 Spring Lake Drive
Itasca, IL 60143
ATTN: Chief Financial Officer
With Copy to (copy alone not sufficient Notice):
National Safety Council
1121 Spring Lake Drive
Itasca, IL 60143
ATTN: Chief Strategy Officer
All such notices and communications shall be deemed received upon: (i) actual receipt thereof by the addressee, or (ii) actual delivery thereof to the appropriate address as evidenced by an acknowledged receipt.
13.4. Amendment. No amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and executed by each of the Parties.
13.5. Severability. If any provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to either Party. Upon any such determination that any provision is invalid, illegal or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated by this Agreement are consummated to the extent possible
13.6. Waiver. The failure of either Party at any time or times to require performance of any provision hereof shall in no manner affect the right to enforce the same. No waiver by either Party of any condition, or the breach of any provision contained in this Agreement, or whether by conduct or otherwise, in any one or more instances shall be deemed or construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or of the breach of any other provision herein or therein. No waiver shall be enforceable against a Party unless it is stated in writing signed by the Party against whom enforcement is sought.
13.7. No Third-Party Beneficiaries; Assignment. This Agreement shall be binding on the Parties and their respective successors and assigns and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third-party beneficiary rights in any Person. Except for any transfer or assignment by either Party in connection with the sale or transfer of all or substantially all the business or assets of such Party, whether by sale of stock, sale of assets, merger or otherwise, no transfer or assignment of this Agreement or of any rights or obligations under this Agreement may be made by either Party without the prior written consent of the other Party’s which consent shall not be unreasonably withheld, conditioned or delayed and any attempted transfer or assignment without that required consent shall be void.
13.8. Governing Law; Consent to Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of Illinois, without giving effect to the principles of conflicts of law of such state.
13.9. Entire Agreement. This Agreement is a complete statement of the Parties with respect to the subject matter herein, and supersedes any previous negotiations, agreements and understandings between the Parties with respect to the subject matter herein.
