Designer Application Form

Scrapbook MAX! Design Team Program (Wholesale / Retail) Agreement

PLEASE READ THE FOLLOWING AGREEMENT AND THEN CLICK ON THE BUTTON AT THE FOOT OF THE PAGE TO ACCEPT THE AGREEMENT

This Wholesale/Retail Agreement (this "Agreement") is made effective upon acceptance of this agreement between you, as Content Vendor (“Vendor”, “you” or “your”), with an address as provided on the registration page, and Indigo Rose Software Design Corporation ("SCRAPBOOKMAX", “us” or "we"), with a registered office at 123 Bannatyne Ave., Suite 200, Winnipeg, MB, R3B0R3, Canada. The parties agree as follows:

1. GRANT OF LICENSE
   In accordance with this Agreement, Vendor agrees to provide SCRAPBOOKMAX with copies of your digital content kits, images, graphics, templates, fonts and other elements (the "Product"), as well as other information regarding your products requested by us to allow us to offer your products for sale through the SCRAPBOOKMAX software, store and website (the “Service”). You may provide us with suggested retail prices for the products. As the reseller, we shall be free to determine, in exercise of our sole and absolute discretion, the actual prices at which we will resell the products through the Service. Title to all products will remain with you until we process an order by a customer, at which time we purchase the applicable product(s) from you, and title to those products will pass to us for immediate subsequent passage to the customer. We shall have full control over the privacy policy, terms and conditions of sale, and text of pages which are utilized in connection with the Service. We will retain ownership of the Service. Other than the rights described above, as we need them to fulfill the purposes of this Agreement, you do not grant us any rights in the intellectual property of your Product, your name or your trademarks.
2. PROHIBITED ITEMS OR ACTIVITIES
   The SCRAPBOOKMAX Service is for the sale of digital content and electronically delivered products. By entering into an arrangement with SCRAPBOOKMAX, Vendor represents and warrants that Vendor has full right and authority to distribute and sell the Product and that no Product conflicts with or infringes the intellectual property, including a trademark, copyright or patent, of another person. You agree that we may, in our sole discretion, decline to carry (or to continue to carry) any of your Products at any time, with or without reason.
3. TRADE DISCOUNTS AND FEES
   Unless mutually agreed, SCRAPBOOKMAX shall purchase at 50% (fifty percent) discount from Vendor's recommended list price less any customer coupon discounts or global/general discount offers which are to be shared equally by Vendor and SCRAPBOOKMAX. SCRAPBOOKMAX reserves the right to change its pricing schedule at any time and to provide customer coupon discounts and global/general discount offers at any time as decided by SCRAPBOOKMAX in its sole discretion. In the event that SCRAPBOOKMAX increases our fee or varies the reseller discount, Vendor shall be notified of the increase at least 30 days prior to its implementation whenever possible.
4. PAYMENTS
   SCRAPBOOKMAX will pay you the net revenues owed to you, via the prearranged method of payment, in arrears at the time or times mutually arranged. Unless we mutually agree otherwise, payments will be sent on or shortly after the 15th of a month for orders placed during the preceding month. Example: Proceeds of orders filled in February will be paid in March. We reserve the right to hold back payments on transactions that we expect to be refunded or have been refunded since the first of the subsequent month and prior to the payment date. We also reserve the right to verify an account before making an initial payment to new vendors. As used in this paragraph, the words "pay" and payments will be sent mean that we make arrangements to send you the funds on a particular date, not that you will receive them (except for payments made via Paypal, which generally experience no transmission delays). If the total amount we owe to you at the end of a monthly pay cycle will be less than $25 we will withhold payment until a later pay cycle when the total amount owed is greater than $25.
5. RECORDS
   SCRAPBOOKMAX will keep accurate records regarding the quantities of Product sold, refunds, chargebacks, and fees associated with the Product. A report of these transactions will be provided monthly listing all transactions for which Vendor is entitled to payment, and itemizing all applicable discounts and fees. SCRAPBOOKMAX generally maintains archives of all such records for a period of 18 months.
6. MODIFICATION
   SCRAPBOOKMAX reserves the right to review Product content and information for suitability at any time and from time to time. Obscene language, sexually oriented, or other offensive material may not be offered by Vendor through the SCRAPBOOKMAX Service, or otherwise linked to or entered onto the SCRAPBOOKMAX Service. SCRAPBOOKMAX retains the right to edit, modify, or delete, or disable any link to any obscene, sexually oriented or offensive material. SCRAPBOOKMAX reserves the right to immediately close a Vendor's account and cease distribution and sale of Product upon receipt of notice stating (1) that the Product conflicts with or infringes the intellectual property, including a trademark, copyright or patent, of a third party, or (2) that SCRAPBOOKMAX is at risk of being associated with spam emailings, popups or similar marketing methods that might risk SCRAPBOOKMAX defending any Class or other legal Action.
7. REFUNDS AND CHARGEBACKS
   We reserve the right to refund any transactions that we know are fraudulent on a full recourse basis. Should a customer's bank reverse a disputed charge due to a complaint about Product quality or any other reason, SCRAPBOOKMAX will debit the Vendor's account the total retail price of the transaction less our trade discount, plus any fee assessed by the customer's bank. We reserve the right to give refunds to customers without specific authorization from Vendor and to debit Vendor's account for the full retail price paid by the customer less our trade discount.
8. REPRESENTATION AND DISCLAIMERS
   (a) Each party represents and agrees that its conduct in relation to the World Wide Web and internet usage conforms and will conform to all applicable laws and regulations (including without limitation applicable data privacy regulations), and does not and will not violate the rights of any third parties and
   (b) Each of Vendor and SCRAPBOOKMAX represents and agrees that it will provide to customers legally binding disclaimers of all express and implied warranties, expressly limiting such party's liability to the refund of all applicable charges. Each customer must agree, in a legally binding manner, to indemnify such party, its agents and intermediaries and suppliers from any loss or liability resulting from illegal or injurious activities by such customer and/or any illegal or injurious material placed on the World Wide Web or through the SCRAPBOOKMAX Service by such customer.
9. INDEMNITY
   (a) Vendor agrees to defend and indemnify SCRAPBOOKMAX and hold harmless SCRAPBOOKMAX from and against any and all claims, actions, proceeding, judgments, losses, liabilities, costs and expenses (including reasonable attorneys' fees) arising from Vendor's incorrect maintenance or compilation of data, trademark, copyright or patent infringement, any claims regarding Vendor's products or services sold through the SCRAPBOOKMAX Service, Vendor's failure to comply with all applicable laws, rules and regulations, or any other action or omissions by Vendor in its use of the SCRAPBOOKMAX Service that lead to any claims against SCRAPBOOKMAX. If Vendor's actions create a serious risk of liability or potential cost to SCRAPBOOKMAX, SCRAPBOOKMAX reserves the right to withhold payments for an indefinite period of time to cover such costs.
   (b) SCRAPBOOKMAX agrees to defend and indemnify Vendor and hold harmless Vendor from and against any and all claims, actions, proceeding, judgments, losses, liabilities, costs and expenses (including reasonable attorneys' fees) arising from SCRAPBOOKMAX's incorrect maintenance or compilation of data, or any other action or omissions by SCRAPBOOKMAX in its use of hosting services that lead to any claims against Vendor.
10. WARRANTIES
    SCRAPBOOKMAX makes no warranties, express or implied, to any person with respect to the use, sale or other transfer of the Product. SCRAPBOOKMAX will take reasonable measures to ensure that theft or unauthorized downloading of Product from SCRAPBOOKMAX's server does not occur. SCRAPBOOKMAX will not be liable to Vendor or any customer for direct, indirect, special, incidental, or consequential damages.
11. TRANSFER OF RIGHTS
    This Agreement is binding on any successors or permitted assigns of the parties. Vendor shall not have the right to assign its interest in this Agreement to any other person or entity, unless the prior written consent of the SCRAPBOOKMAX is first obtained. Any assignment by Vendor in violation of this provision will be void and of no effect. SCRAPBOOKMAX reserves the right to assign the rights and obligations under this Agreement at any time to any company or person, and Vendor specifically consents to any such assignment of any right or obligation by SCRAPBOOKMAX.
12. TERMINATION
    This Agreement may be terminated for convenience by either party by providing 90 days written or electronic notice to the other party. Upon termination by either party, SCRAPBOOKMAX reserves the right to withhold payments due to Vendor until 90 (ninety) days has elapsed after the termination date during which no claims for refunds or chargebacks have been submitted. Where there are valid and reasonable grounds, SCRAPBOOKMAX may withhold funds for an extended period to protect itself from potential chargebacks or other claims. SCRAPBOOKMAX may terminate an account without warning if SCRAPBOOKMAX is advised that the SCRAPBOOKMAX Service has been used for fraudulent purposes or if Vendor has committed a material breach of any provision of Section 2 of this Agreement.
13. ENTIRE AGREEMENT
    This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
14. AMENDMENT
    SCRAPBOOKMAX reserves the right to modify this Agreement from time to time. SCRAPBOOKMAX will notify Vendor of any material modifications by emailing Vendor. Vendor agrees and acknowledges that its continued use of the SCRAPBOOKMAX Service following the emailed notification of such revised version indicates Vendor's acceptance of the revised version.
15. SEVERABILITY
    If any provision or part of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement will not in any way be affected or impaired, unless the invalidity, illegality or unenforceability completely nullifies this Agreement.
16. FORCE MAJEURE
    SCRAPBOOKMAX will be relieved of any obligation to perform under this Agreement if it is unable to perform as a result of natural disaster, war, emergency conditions, labor strike, acts of terrorism, the substantial inoperability of or interruption in the Internet, the inability to obtain supplies, or other reasons or conditions beyond our reasonable control.
17. PERSONAL DATA
    Vendor agrees that all customer lists and information collected by SCRAPBOOKMAX is the property of SCRAPBOOKMAX and Vendor will have no right to receive or view such data.
18. ILLEGAL TRANSACTIONS
    If SCRAPBOOKMAX determines, in its sole discretion, that the sale of Vendor's products to customers located in any particular country or jurisdiction, or the transfer of currency between customers and SCRAPBOOKMAX or between SCRAPBOOKMAX and you, may constitute SCRAPBOOKMAX's violation of applicable export control laws, applicable currency control laws, or other applicable law, or if SCRAPBOOKMAX determines that resolving any such potential problem will cost SCRAPBOOKMAX an unreasonable amount of time, effort or money, SCRAPBOOKMAX may choose to refuse to process such transactions.
19. WAIVER OF CONTRACTUAL RIGHT
    The failure of either party to enforce any provision of this Agreement shall not be interpreted as a waiver or limitation of that party's right to enforce and compel strict compliance with every provision of this Agreement.
20. ARBITRATION
    Except for actions to protect Proprietary Rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Winnipeg, Manitoba. The arbitrator shall apply the laws of Manitoba, to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Legal fees shall be awarded to the prevailing party in the arbitration.
21. APPLICABLE LAW
    This Agreement is governed by the laws of the Province of Manitoba. Any disputes arising under this Agreement shall be resolved under the laws of the Province of Manitoba. In the event either you or we should start any litigation arising out of this Agreement, you expressly agree that the litigation will take place exclusively in the provincial or federal courts located in Winnipeg, Manitoba, Canada, and you expressly agree that any such court has personal jurisdiction over you. You waive all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule, but if you have provided an inadequate street address, you agree we may serve you by e mail.
22. INDEPENDENT CONTRACTORS
    The parties will perform all of their duties under this Agreement as independent contractors, not as principle-agent, joint ventures or partners.

Last edited October 18, 2006