PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. BY CLICKING “I Agree”, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. This Agreement governs the relationship between retailcommon Inc. (“retailcommon”) and the vendor (the “Vendor”) which may be an entity with its own brand presence that sells its products to consumers through retailers, or wholesale product distributors, or a retailer selling products to consumers.

1. retailcommon Community: The Vendor will have access to the various features made available to vendors as part of the retailcommon online community (the “Community”) from time to time. Features supplied to vendors include the following: online showroom; ecommerce capabilities among brand owners, distributors, retailers, and consumers; ability to direct brand messages and advertising to retailers and consumers; social networking tools, and reporting tools.
2. Fees: Vendor will pay retailcommon the fees specified in the registration process. All amounts are subject to the payment of all applicable taxes. retailcommon may change any fees payable under this Agreement by giving at least 60 days written notice in advance, which changes will not commence prior to the end of a Term. Any payment not made when due will be subject to interest of two percent (2%) per month compounded monthly (equivalent to a yearly interest rate of 26.86%).
3. Service Contact: Vendor will nominate one individual as a contact for retailcommon, who will be identified in the profile (the “Profile”) the Vendor completes when first accessing the Community. Communications regarding the Vendor’s use of the Community will only be between that contact and retailcommon. The Vendor may change the contact by amending its Profile.
4. Term: This Agreement will commence upon receipt of the initial payment through the registration. The Term will continue for 12 months, unless terminated by either party as permitted by this Agreement. The Term will continue thereafter on an annual basis until such time as either party gives notice that the Term will end, which must be given at least 60 days prior to the end of the then current Term. The Vendor acknowledges that the Community is in the process of being launched, and it may take some time before all features are available, and for retailers and consumers to become active in the Community.
5. Ownership: The contents of the Community are owned by and copyrighted by retailcommon or other parties posting material and contains trade-marks of retailcommon and others. Material on the Community may only be copied or reproduced to the extent explicitly permitted on specific areas of the Community. retailcommon has no ownership interest in any Vendor data, trade-marks or other content the Vendor places on the Community. The Vendor hereby licenses same to retailcommon only to the extent required to operate the community. If the Vendor terminates this Agreement, the Vendor will be provided with a reasonable opportunity to retrieve any material it has placed on the Community.
6. Support: retailcommon will provide support and training to the Vendor for its use of the Community as reasonably required. Support and training will be primarily through the use of web based tools. Support does not include any changes or customizations.
7. Default: retailcommon may immediately terminate this Agreement or suspend the Vendor’s access to the Community without notice upon the occurrence of any of the following events: (a) Vendor fails to make any payments when due; (b) Vendor fails to comply with any provision of this Agreement; (c) Vendor attempts to assign, sub-license, or otherwise transfer any of its rights under this Agreement without the consent of retailcommon; or (d) Vendor files an assignment in bankruptcy or is or becomes bankrupt and/or insolvent, upon the appointment of a receiver for all or substantially all of the property or assets of the Vendor, upon the making of any assignment or attempted assignment for the benefit of creditors or on the institution by Vendor of any act or proceeding for the winding up of its business.
8. Vendor Responsibilities: The Vendor is responsible for all activity it conducts within the Community. The Vendor will not use the Community for purposes proscribed by retailcommon from time to time, including without limitation illegal or inappropriate purposes; sending spam; perpetration of security breaches; hacking; privacy breaches; fraudulent activity; distribution of viruses or other harmful code; transmission, distribution or storage of any material protected by copyright, trade-mark, trade secret or other intellectual property right without proper authorization, or material that is obscene, defamatory, fraudulent, infringing or abusive; any unauthorized access, alteration, theft, corruption or destruction of files, data, transmission facilities or equipment; or to interfere with any other person’s use and enjoyment of the Community.
retailcommon does not routinely monitor all material placed on the Community, but may in its discretion delete or modify any material offending the above that comes to its attention. The Vendor will abide by any retailcommon policies adopted by retailcommon from time to time regarding the operation of the Community, including, without limitation, policies intended to give customers a consistent experience within the Community, such as merchandise return policies. If the Vendor takes part in any service or community that brings brands, retailers and consumers together similar to the Community, it will notify retailcommon so that retailcommon can address any ramifications to inventories or customer service. Nothing in this Agreement restricts the Vendor from selling its products online via its own website. The Vendor’s access to the Community, for the purposes of placing and retrieving material and information, requires logon ID’s and passwords. It is the Vendor’s responsibility to protect that information, including without limitation, to use effective passwords that are not easily guessed or discoverable, and keep login ID’s and passwords confidential. The Vendor will report to retailcommon immediately after its discovery of any compromise of its passwords or suspected unauthorized use of the portion of the Community under its control.
9. Service Levels: retailcommon will use commercially reasonable efforts to keep the Community operational on a continuous basis, subject to reasonable maintenance requirements and matters beyond retailcommon’s reasonable control. Retailcommon may make changes to the Community at any time in its sole discretion without notice.
10. Warranty: retailcommon will use reasonable efforts to enforce any service level and warranty obligations of its suppliers.
retailcommon does not warrant that the Community is accurate or error free, that it will operate without problems or without interruption, or that it will satisfy the Vendor’s expectations. The Vendor acknowledges that retailcommon may provide the Community using services and software provided by third parties. Notwithstanding anything else contained in this Agreement, retailcommon’s, and such third parties’, warranties and liabilities for any matters arising from such services and software shall not exceed those provided to retailcommon from such third parties. The Vendor acknowledges that retailcommon provides and facilitates the Community, but is not responsible for anything placed on the Community by third parties. Any third party sites that are linked to the Community are not under retailcommon’s control. retailcommon is not responsible for anything on the linked sites, including without limitation, any content, links to other sites, any changes to those sites, or any policies those sites may have. retailcommon provides links as a convenience only and such links do not imply any endorsement by retailcommon of those sites or their owners.
11. Limitations: Except as otherwise provided in this Agreement, retailcommon and its suppliers expressly exclude and disclaim all express or implied conditions, representations and warranties including without limitation, any implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement to the extent applicable by law.
In no event is retailcommon or its suppliers liable for any business interruption, lost profit, revenue, data or data reconstruction, or for special, indirect, consequential, incidental, or punitive damages however caused, whether in contract, tort, negligence, strict liability, operation of law or otherwise, even if retailcommon or its suppliers have been advised of the possibility of such damages. The total liability of retailcommon, whether in contract, tort, negligence, strict liability, operation of law or otherwise shall not exceed the fees paid to retailcommon by the Vendor for the 6 month period immediately prior to the event giving rise to the claim. The parties acknowledge that retailcommon has set its prices and entered into this Agreement in reliance on the limitations of liability and disclaimers of warranties and damages set forth herein, and that the same form a fundamental and essential basis of the bargain between the parties. They shall apply even if this Agreement is found to have failed in its fundamental or essential purpose or been fundamentally breached.
12. Indemnity: The Vendor will indemnify retailcommon for any expenses retailcommon may incur resulting from the Vendor’s violation of this Agreement, including, without limitation, any fines, fees, legal expenses, and labour for investigation and resolution.
13. Amendments to Agreement: retailcommon may amend this Agreement from time to time, such changes being effective 60 days after retailcommon advises the Vendor of the change.
14. Governing Law: This Agreement shall be interpreted in accordance with and governed by the laws of the Province of Ontario, Canada, excluding conflicts of laws provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby submit to the non-exclusive jurisdiction of the courts of Ontario, and the Federal Court of Canada. Any actions against retailcommon must be commenced in the courts of Ontario or the Federal Court of Canada.
15. Dispute Resolution: To resolve disputes which may arise between the parties, any party will notify the other in writing of its intent to escalate to each party’s President or CEO. If the issue is not resolved within ten (10) days, then the resolution of the dispute shall be referred to a mediator chosen by the parties. If the parties are unable to agree on a mediator, then either party may apply to a judge of the Ontario Supreme Court, and such judge shall appoint an independent mediator with relevant experience and sufficient qualifications to provide mediation services to the parties. If the parties are unable to resolve the dispute with the assistance of the mediator within fifteen (15) days of the appointment thereof, the dispute shall be settled by arbitration in accordance with the Arbitrations Act (Ontario). If the Vendor does not have a Canadian business establishment, the arbitration shall be in accordance with the International Commercial Arbitration Act (Ontario). The award of the arbitration shall be final and binding upon the parties, and enforceable in any court of competent jurisdiction. The venue for any arbitration hereunder shall be Toronto, Ontario. Nothing in this section shall defer or interfere with the entitlement of either party to obtain injunctive relief.
16. Confidential Information: Confidential Information is all information of either party that is not generally known to the public, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to technology, business plans, assets, liabilities, prospects, finances, product capabilities or lack thereof), that is disclosed by a party to the other or that is otherwise learned by the other in the course of its business dealings with the other, and that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure or receipt ought reasonably to be treated as proprietary and/or confidential. Confidential Information shall not include (except for any personally identifiable information about an individual that relevant privacy legislation or policies do not allow to be disclosed): (a) any Confidential Information that is in the public domain at the time of its disclosure or which thereafter enters the public domain through no action of the receiving party, direct or indirect, intentional or unintentional; (b) any Confidential Information which the receiving party can demonstrate was in its possession or known to it prior to its receipt, directly or indirectly, from the other party; (c) any Confidential Information that is disclosed to the receiving party by another party not in violation of the rights of the other party or any other person or entity; and (d) any Confidential Information which is either compelled by law or by the order of a court of competent jurisdiction to be disclosed. The parties will (i) not use Confidential Information for any purpose other than that contemplated by this Agreement; (ii) not disclose Confidential Information to anyone without the prior written authorization of the disclosing party, during the term of this Agreement or at any time thereafter; (iii) handle, preserve and protect Confidential Information with at least the same degree of care that it affords or would afford to its own Confidential Information, including taking all reasonable efforts to avoid disclosure of such Confidential Information to any third party, at any time; (iv) disclose Confidential Information only to its employees or subcontractors who require such information in order to perform the party’s obligations to the other, and are under similar confidentiality obligations. For clarification, and without limiting the generality of the above, while retailcommon will provide various parties (including the Vendor) with general information about trends, consumer behaviour and other information gleaned from the Community and its operations - it will not disclose information that is proprietary or confidential to the Vendor to anyone other than the Vendor, without the Vendor’s permission.
17. Privacy: The parties will treat any personal information in the possession of the other party that they may have access to under this Agreement as required under applicable privacy legislation and each party’s own privacy policy as it exists from time-to-time. Neither party shall use or disclose such personal information in any way except pursuant to the other party’s instructions, to the extent necessary to perform this Agreement, or pursuant to the permissions granted by the individual. retailcommon will use security measures adequate to the sensitivity of the personal information to protect personal information. If retailcommon subcontracts any part of its obligations hereunder it will obtain contractual obligations similar to this section from the subcontractor. Retailcommon will provide Vendors with personal information of buyers purchasing from them using the Community to the extent necessary to complete the sale. The Vendor will not use such personal information for any other purpose except to the extent retailcommon advises that the individual has provided consent for certain uses, or the retailer obtains the consent of the buyer.
18. Prior Agreement: This Agreement contains the complete and exclusive statement of the agreement between the parties and supersedes all prior and contemporaneous agreements, purchase orders, understandings, proposals, negotiations, representations or warranties of any kind whether written or oral. No oral or written representation that is not expressly contained in this Agreement is binding on either party. This Agreement cannot be amended or modified, other than by a change made in writing, dated and executed by the parties. If there is both an executed and a click-wrap version of this Agreement, the executed version shall govern if the terms differ.
19. Survival: The provisions of this Agreement pertaining to Confidential Information, privacy, and use restrictions shall survive the termination of this Agreement. Other sections pertaining to rights and obligations which by their nature should survive termination are hereby confirmed to so survive.
20. Force Majeure: Neither party is liable for an omission or delay in the execution of its obligations hereunder caused by an event beyond its reasonable control. The time for the performance of the obligation that is so delayed shall be extended by a reasonable time, provided that payments shall not be delayed.
21. Notice: All required notices, or notices which may be provided in accordance with this Agreement, shall be in writing and shall be duly provided for if the notice is remitted to its addressee by prepaid courier, registered or certified mail, or e-mail (provided that notices sent by e-mail are only effective if the recipient confirms receipt by reply email), if to retailcommon to the address listed on the contact portion of the Community, and if to the Vendor to the address set out on its Profile. Every notice delivered in the manner provided for herein shall be deemed to have been received: when delivered or if by e-mail the first business day after the date received.


Last revised Jan 14, 2009.