Marketplace Goods & Services Agreement

THE CANOA SUPPLY COMPANY, PBC

MARKETPLACE GOODS AND SERVICES AGREEMENT

This Marketplace Goods and Service Agreement (“Agreement”) is entered into between The Canoa Supply Company, PBC (“Canoa”) and you (“Customer”) and is effective as of the date of your acceptance of this Agreement (“Effective Date”).

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, CUSTOMER: (A) HEREBY AGREES TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY OR OTHER LEGAL ENTITY FOR WHICH CUSTOMER ACTS; AND (B) REPRESENTS THAT IT HAS THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES TO THIS AGREEMENT. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY OR IF IT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE PLATFORM, SERVICES OR PRODUCTS.

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1. Definitions

1.1  “Company Tools” means all design tools, ideas, and frameworks developed and/or utilized by Canoa in performing the Services (including as may be developed by Canoa in the course of providing the Services), the general feel of the Canoa’s design aesthetic, design elements or characteristics commonly used by Canoa in its design and work for its customers, pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, and all intellectual property rights therein.

1.2  “Preliminary Works” means all designs, specifications, and other products including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Canoa and which may or may not be shown and or delivered to Customer for consideration but do not form part of the Services.

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2. Products and Services

2.1  Products and Productized Services.  Subject to the terms and conditions of this Agreement and the Platform Terms of Use (“Terms of Use”), Canoa will provide to Customer, and Customer will purchase from Canoa, the products and productized services approved and agreed to in any Order Form (as defined below) or detailed on the purchase page when purchasing a subscription to the Canoa online platform (respectively, “Products” and “Services”).  Customer understands that certain Products and Services offered by Canoa are only available under certain paid subscriptions for the Canoa online platform, and therefore not all services, products or features of the Canoa platform may be available to Customer. Customer will only receive the Products and Services detailed in an Order Form or on the purchase page of the Canoa platform. Canoa may, in its sole discretion, discontinue or limit supply of any Product or provision of any Service, allocate, terminate, or limit deliveries of any Product in time of shortage, or modify the design of, specifications for, or construction of any Product or Service.

2.2  Design Services. The Services may include certain design services, including generation of custom design plans for physical spaces and related digital content (“Design Services”). Customer acknowledges and understands that the custom designs created by Canoa as part of the Design Services are computer generated estimates of the desired outcome, as explained to Canoa by Customer.  Canoa does not guarantee or take responsibility that the final outcome of the Customer project will exactly be the same as design estimates that Canoa creates and provides to Customer.  Variations between the design estimate and the final outcome may occur due to a number of reasons beyond Canoa’s control.

2.3  Legacy Services. The Services may include certain floorplan and data onboarding services, including generation of existing or future Customer floorplans or product in a digital form (“Legacy Services”). Customer acknowledges and understands that Canoa will work from the information and materials provided by Customer to create computer generated estimates of the Customer’s floorplan and/or product. Customer understands that Canoa cannot independently verify the measurements or specifications of the information provided by Customer, and Canoa will interpret and rely on the best available data provided by the Customer. Variations between the Customer’s floorplan or existing product and the digitalized record may occur due to a number of reasons beyond Canoa’s control.

2.4  Products and Fulfillment Services. The Products may additionally include coordinating and providing third party services for the warehousing, delivery and/or installation of the Products (“Fulfillment Services”). Canoa will use commercially reasonable efforts to procure on behalf of Customer the Products and/or Fulfillment Services identified in any Order Form. Notwithstanding the foregoing, Customer understands that Canoa will not procure the Products or Fulfillment Services until invoices are fully paid, and therefore cannot guarantee the availability of any Products if invoices are not paid immediately. The Products will be shipped to the applicable destination identified in the Order Form, which Customer will approve and confirm is suitable to receive the Products at the time of delivery. Title and risk of loss or damage to the Products shall pass to Customer upon shipment of the Products. In no event will Canoa be liable for any costs or damages related to a delay in shipping or delivery of the Products.

2.5   Order Forms.  Throughout the term of the Agreement, Customer may order additional Products and Services, as made available with Customer’s subscription, through mutually agreed to written order forms that set forth the details for the ordered Products (i.e., type and quantity ordered, delivery destination, estimated lead-time) and Services (i.e., type ordered, applicable Products, Service commencement date) (“Order Form”). Order Forms will be effective if mutually agreed to as generated by Canoa and signed by Customer  and will be governed by the terms of this Agreement. Once signed, an Order Form cannot be modified or changed, and under no circumstance can a Customer change, modify, cancel or return any prior approved Product or Service.

2.6   Design Templates. Under some subscriptions available for the Canoa platform, Customer may receive access to design templates. Whenever not selecting from Canoa’s pre-built design templates and instead creating your own designs, Customer is solely responsible for confirming the availability and extent of any manufacturer’s and/or retailer’s warranty for materials sourced or obtained through the Canoa platform and for using, installing, maintaining and repairing the materials in accordance with the terms of any such warranty and any instructions provided by the manufacturer and/or retailer.  Additionally, Canoa reserves the right to deny Customer requests for new products or product vendors for any reason, including if such product or vendors are not in alignment with Canoa’s ESG philosophy or if Canoa believes the products (or any other products sold by the vendor) infringe any intellectual property rights. If you discover a defect or deficiency in any materials sourced or obtained through the Canoa platform, you are responsible for contacting the manufacturer and/or the retailer directly.

2.7   Customer Responsibilities. Customer will make available in a timely manner at no charge to Canoa all information and resources of Customer required by Canoa to perform the Services. Customer is responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness, and consistency of all such data, materials, and information. Customer will provide, at no charge to Canoa, office space, services, and equipment as Canoa reasonably requires to perform the Services.

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3. Intellectual Property

‍‍Except as otherwise expressly granted to Customer in this Agreement, Canoa reserves and retains all right, title and interest in the Services, including without limitation, all Preliminary Works, Company Tools, technology and processes, enhancements or modifications thereto, trademarks, service marks, site design, drawings, CAD files, text, video, graphics, logos, images and icons, as well as the arrangement thereof.

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4. Price and Payment

4.1    Fees.  The Customer will pay the following fees for the Products and Services (“Fees”):

(a) Products and Fulfillment Services, where applicable, will be paid by Customer on a “cost plus” basis for the costs incurred by Canoa in obtaining the Products (including prices paid and shipping, bank processing, customs costs, delivery, and storage costs). The applicable take-rate (also referred to as the Canoa Fee) for the Products and Fulfillment Services is available at [https://canoa.supply/pricing]; and

(b) The cost for all other Services (excluding Fulfillment Services)  will be paid by Customer as set forth in the Order Forms.

(c) In addition to any other amounts set out in the Order Form or at the link above, Customer shall be solely responsible for the following with respect to the Products: (i) import formalities and duties; (ii) costs of import clearance pre-shipment inspection; and (iii) onward carriage and delivery to any delivery location.

4.2      Payment Terms. To ensure Products and Services are procured in a timely fashion to meet the Customer’s project deadlines, it is likely that multiple invoices will be sent to the Customer throughout the project. While most projects require between 3 to 6 payments, the specific number of payments will be based on evolving needs of the Customer, supply chain availability, and/or other project-related circumstances. All Fees will be due and payable upon receipt of the applicable invoice and payments must be made in U.S. dollars. Customer understands that no Services will be performed and no Products will be purchased until each applicable invoice is paid. Each invoice will include a Canoa fee as dictated by the subscription and corresponding applicable take-rate to the invoice’s amount. For fee amount, refer to the project’s specific Order Form or the link above. Late payments will accrue interest at the lesser of 1.5% per month and the highest rate allowed by applicable law.

4.3  Refund for Unavailable Products. If, after execution of an Order Form and payment of the fees applicable to such Order Form, any Products purchased by Customer are unavailable, Canoa will refund Customer the fees associated with the unavailable Products.

4.4  Fees are Subject to Change. Canoa may at any time and from time to time, in its sole discretion, change the Fees, or add new Fees, in relation to any of the Services or Products. Canoa may also at any time and from time to time, in its sole discretion, change or remove any of the pricing models in place.

4.5  Taxes.

(a) General. Unless otherwise stated in the applicable Order Form, Fees do not include, and are net of, any foreign or domestic governmental taxes or charges of any kind that may be applicable to the sale, licensing, or distribution of the Products or the provision of the Services, including without limitation excise, sales, use, or value-added taxes; customs or other import duties; or other taxes, tariffs or duties.  Customer will be responsible for, and will pay in a timely manner, all such taxes and charges levied against Canoa, excluding taxes on the income of Canoa.  When Canoa has the legal obligation to pay or collect such taxes, the appropriate amount will be invoiced to Customer, excluding taxes on the income of Canoa, and paid by Customer immediately upon receipt of invoice unless Customer provides Canoa with a valid tax exemption certificate authorized by the appropriate taxing authority.

(b) Withholding Taxes.  All payments by Customer will be made free and clear of, and without reduction for, any withholding taxes.  Any such taxes that are otherwise imposed on payments to Canoa will be the sole responsibility of Customer.  Customer will provide Canoa with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Canoa to establish that such taxes have been paid.

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5. Term and Termination

5.1  Term.  This Agreement will be in effect for an initial one-year term commencing on the Effective Date (“Initial Term”).  Thereafter, subject to Customer’s timely payment of all Fees, this Agreement will automatically renew for additional one-year terms (“Renewal Terms”), unless either party provides the other party with written notice of non-renewal at least 60 days before the end of the Initial Term or any Renewal Term. 

5.2  Order Form Term. Unless earlier terminated in accordance with this Agreement or the applicable Order Form, each Order Form will continue for the initial term specified in such Order Form (“Initial Order Form Term”), to the extent applicable, and, if such Order Form provides for automatic renewal, then, unless either party provides the other with notice of non-renewal, upon the date of expiration of the then-current term, such Order Form will automatically renew for successive terms (each, a “Renewal Term”) equal in length to the Initial Order Form Term or such other length of Renewal Term period as stated on the Order Form. Except for termination for breach of this Agreement, termination of the Agreement will not terminate any Order Forms then in effect.

5.3  Termination for Cause.  If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 15 days prior written notice, provided that the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 15-day period.

5.4  Termination of the Terms. This Agreement will automatically terminate if either party terminates the Terms (as defined above).

5.5  Effect of Termination or Expiration. Termination or expiration of this Agreement will not release either party from making payments due to the other party under the terms of this Agreement. The following sections will survive termination of the Agreement: 3, 3, 5, 7, 9, and 10.

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6. Warranties

6.1  Canoa Warranties. Canoa warrants that: (i) it will perform the Services in conformity in all material respects with its written procedures or as agreed upon by the parties, (ii) it will perform all Services in a professional and workmanlike manner, consistent with generally accepted industry standards and good commercial practices, and (iii) it will comply with all applicable federal, state and local laws, regulations and ordinances.

6.2  Customer Warranties. Customer warrants that it (a) will comply with all applicable federal, state and local laws, regulations and ordinances and (b) the terms of this Agreement. Customer acknowledges that it is responsible for performing the following in a reasonable and timely manner: (i) coordination of any decision-making with parties other than the Canoa and (ii) provision of any information Canoa needs to provide the Services or Products in a timely manner. Customer further acknowledges and agrees that it is solely responsible for (a) maintaining a safe environment for conducting Services at the Customer premises; and (b) complying with all federal, state, city, and municipal laws related to Services carried out at Customer premises.

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7. Third Party Products and Services.

‍In its provision of the Services and Products, Canoa may procure or provide third party services, products or materials that are manufactured by others (“Third Party Products”). Customer acknowledges and understands that Canoa makes no warranties or representations regarding the Third Party Products.  Such materials may be subject to product warranties, if any, provided by their respective manufacturers and/or the retailers that sell them. Customer hereby expressly agrees and acknowledges that Canoa will not be liable for any claims for direct, indirect, consequential, incidental, or special damages, including lost profits or revenues, arising out of or in any way connected with a manufacturer’s or retailer’s breach or failure to honor warranty and/or any failure, delay in use or performance of material or acts or omission of Customer and/or any third party working on Customer’s behalf rendering the manufacturer’s and/or retailer’s warranty void.

8. WARRANTY DISCLAIMER. CANOA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  CANOA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, HABITABILITY, QUALITY, ACCURACY, AND TITLE. CANOA DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR SERVICES OR AGAINST INFRINGEMENT.  CANOA DOES NOT WARRANT THAT THE SERVICES OR PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES OR PRODUCTS WILL BE SECURE OR UNINTERRUPTED.  CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF CANOA TO ANY THIRD PARTY.

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9. Limitations of Liability

9.1  Disclaimer of Damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, CANOA WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF CANOA IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

9.2   Cap on Liability.  UNDER NO CIRCUMSTANCES WILL CANOA’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO CANOA FOR THE CANOA SERVICES (EXCLUDING FULFILLMENT SERVICES) UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM OR $50,000 USD (WHICHEVER IS LESS).

9.3   Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CANOA TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

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10.   General Provisions

10.1 Marketing & Promotional Use. Canoa may use the name, brand, or logo of Customer (or Customer’s parent company), photos of the designed spaces, case studies, testimonials, and videos solely for the purpose of identifying Customer as a licensee or customer of Canoa in a ‘customer’ section of Canoa’s website, social media channels, brochures, or other promotional materials, or as part of a list of Canoa’s customers in a press release or other public relations materials. Any such limited use by Canoa shall include proper attribution to Customer or its parent company of any trademark or logo of Customer or its parent company, and shall in no way suggest that Canoa is affiliated with, or speaking on behalf of, Customer or Customer’s parent company. Any other press releases or marketing materials referring to the trademarks or logos of Customer shall require mutual approval in writing prior to public dissemination thereof.

10.2 Insurance. Customer will maintain adequate insurance coverage for its premises from a reputable insurance provider (“Insurance Policy”) for the duration of any project that involves the deployment of Services in or at the Customer premises. Customer agrees and acknowledges that in case of physical loss or physical damage to the Customer premises or any personal or other property at the premises or any bodily injury caused by Canoa or a third-party involved in providing the Services, Customer will make a claim against their Insurance Policy. 

10.3 Assignment.  Customer may not transfer or assign this Agreement, in whole or in part, without the written consent of Canoa, which consent will not be unreasonably withheld.  Any attempt by Customer to transfer or assign this Agreement without consent will be null and void.  Canoa may transfer or assign this Agreement upon notice, but without Customer’s consent, to an affiliate or a successor of all or substantially all of its business pertaining to this Agreement, whether by merger, consolidation, transfer or sale of all or substantially all of its business, assets, or equity.

10.4 Governing Law and Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the state of New York without regard or giving effect to its principles of conflicts of laws or to the United Nations Convention on Contracts for the International Sale of Goods.  Canoa and Customer submit to and hereby irrevocably waive any objection to the exclusive personal jurisdiction of, and that venue is proper in, any federal or state court in New York, New York.

10.5 Notices.  Any notice, request, demand, or other communication required or permitted in this Agreement will be in writing, will reference this Agreement, and will be effective: (a) when delivered personally; (b) four business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (c) two business days after deposit with an express courier, with written confirmation of receipt.  All notices will be sent to the address set in an Order Form or other address for a party as specified in writing by that party.

10.6 Severability.  If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

10.7 Waiver.  No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of these rights.

10.8 Relationship between the Parties.  Canoa is an independent contractor under this Agreement.  Nothing in this Agreement creates a partnership, joint, venture, or agency relationship between the parties.

10.9 Force Majeure.  Canoa is not responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control.  If the performance of Canoa is interfered with for reasons beyond its reasonable control, Canoa will be excused from performance to the extent of the interference.  Canoa will take all reasonable steps to remove the causes of non-performance and resume performance as soon as the causes are removed.

10.10 Additional Terms. Some services offered pursuant to this Agreement may be subject to additional terms and conditions (“Additional Terms”), such as the Platform Terms of Use (“Terms”). By using or accessing any such services, Customer agrees to the Additional Terms applicable to such services, and such Additional Terms are hereby incorporated by reference into this Agreement. In the event of any conflict or inconsistency between this Agreement and any Additional Terms, the Additional Terms will control, but only with respect to the features of the Products or Services to which they apply.

10.11 Entire Agreement.  This Agreement, the Additional Terms and any Order Forms incorporated by reference are the complete and exclusive agreement between the parties with respect to the subject matter of this Agreement, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding this subject matter.  Except as stated herein, this Agreement will also supersede the conflicting terms of any purchase order or any other Customer document.  Canoa hereby expressly rejects terms and conditions preprinted on any Customer document.  Any terms in any other order, release, contract, or other communication that are additional to, different from, or inconsistent with the provisions of this Agreement will be deemed to be void and of no effect.  This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

10.12      No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to confer, nor will anything contained in this Agreement confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities.

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