Master Verified Partner Listing Agreement

MASTER VERIFIED PARTNER LISTING AGREEMENT

This Master Verified Partner Listing Agreement (this “Agreement”) is made and entered into between Spoak Decor, Inc., a Delaware corporation (“Spoak”), and Partner (“Partner”).

WHEREAS, Spoak has developed a platform that helps users design spaces.

WHEREAS, Partner desires to provide Spoak with content and data so that users can view, design, use and otherwise interact with such content and data through the Spoak Platform (as defined below).

WHEREAS, the parties intend to behave as business partners and act in the best interest of a mutually beneficial relationship.

NOW, THEREFORE, in consideration of the terms and conditions of this Agreement and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

DEFINITIONS
1. “Applicable Law” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Spoak Platform, or either party’s performance under this Agreement.
2. “Confidential Information” means any nonpublic business or technical information of Partner or Spoak, including, without limitation, any information relating to Partner’s or Spoak’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how, that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the Recipient; (b) is rightfully known by the Recipient at the time of disclosure without an obligation of confidentiality or restriction on use; (c) is independently developed by the Recipient without use of or access to the Discloser’s Confidential Information; or (d) the Recipient rightfully obtains from a third party without restriction on use or disclosure.
3. “Documentation” means Spoak-provided user documentation relating to the Spoak Platform (e.g., user manuals and online help files).
4. “End User” means any Spoak customer who is using the Spoak Platform for personal or business interior design needs. The relationship between End User and Spoak is governed by Spoak’s online Terms of Service, as may be updated from time to time.
5. “Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.
6. “Partner Data” means text, graphics, design materials, works of authorship, information and other materials and content provided by Partner for incorporation into the Spoak Platform, as further described in the applicable Service Order. Partner Data does not include Usage Data.
7. “Spoak Platform” means Spoak’s software-as-a-service platform and applications (including any updates, enhancements, or improvements), which, among other functions, enables End Users to design, learn, and connect.
8. “Spoak Policies” means any policies or standards posted by Spoak in the Spoak Platform or otherwise made available to Partner, as may be changed from time to time in Spoak’s sole discretion.
9. “Usage Data” means data and information relating to Partner’s use of the Spoak Platform that is derived or aggregated in deidentified form.
SERVICES AND INTEGRATION
1. Service Orders. From time to time, Spoak and Partner may execute Service Orders that describe the specific services to be performed by Spoak (as executed by the parties, a “Service Order”). Each Service Order will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein. A Service Order may be amended only by written agreement of the parties.
2. Performance of Services. Spoak will perform the services specified in each Service Order (the “Services”) in accordance with the terms and conditions of this Agreement and of each Service Order.
3. Partner Responsibilities. In connection with each Service Order, Partner will: (i) perform Partner’s duties and tasks under the Service Order, and such other duties and tasks as may be required to permit Spoak to perform the Services; and (ii) provide qualified personnel who are capable of performing Partner’s duties and tasks under the Service Order. Partner will also make available to Spoak any Partner Data required by Spoak to perform Services. Partner will be responsible for ensuring that all such Partner Data are accurate and complete and not in violation of Applicable Law or the Spoak Policies.
4. Use Restrictions. Partner will not at any time, and will not permit any person (including, without limitation, End Users) to, directly or indirectly: (i) use the Spoak Platform or Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Spoak Platform, Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Spoak Platform, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Spoak Platform or Services to any other person, or otherwise allow any person to use the Spoak Platform or Services for any purpose other than for the benefit of Partner in accordance with this Agreement; (v) use the Spoak Platform, Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person, or that violates any Applicable Law; (vi) interfere with, or disrupt the integrity or performance of, the Spoak Platform, or any data or content contained therein or transmitted thereby; (vii) access or search the Spoak Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Spoak Platform features provided by Spoak for use expressly for such purposes; or (viii) use the Spoak Platform, Services, Documentation or any other Spoak Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Spoak Platform and Services.
5. Accounts. Partner is responsible and liable for all of its actions and inactions on the Spoak Platform, and for any actions or inactions by any third party that Partner permits to access or use the Spoak Platform. Partner is responsible for maintaining control over Partner’s account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Partner’s account.
6. Third-Party Services. Certain features and functionalities within the Spoak Platform may allow Partner and End Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Spoak Platform. Spoak does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Spoak Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Partner is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Partner to use the Third-Party Services in connection with the Spoak Platform. If Partner uses any Third-Party Services with the Spoak Platform, Partner grants Spoak permission to allow the Third-Party Service and its provider to access Partner Data as required for the interoperation of that Third-Party Service with the Spoak Platform. Spoak is not responsible for any disclosure, modification, or deletion of Partner Data resulting from access by such Third-Party Service or its provider. Partner is responsible for negotiating any limits on the use of Partner Data by the Third-Party Services directly with the Third-Party Service provider. Spoak does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Spoak Platform features), and if such Third-Party Services or related features are discontinued, Partner will not be entitled to any refund, credit, or other compensation.
7. Designated Contacts. Each party will designate in each Service Order one or more individuals who will serve as the point(s) of contact between the parties for all matters relating to Services to be performed thereunder. A party may designate new contacts by written notice to the other party.
LICENSE GRANTS
1. License to Partner Data. Partner hereby grants to Spoak a worldwide, royalty-free, non-exclusive, transferable and sublicensable (through multiple tiers) license to access, use, copy, modify, display, perform and distribute the Partner Data made available to the Spoak Platform. For the avoidance of doubt, Partner authorizes Spoak to access and pull Partner Data through Third-Party Services, including, but not limited to, Squarespace, Shopify, and Etsy. Partner hereby grants Spoak the right during the Term to display and otherwise use images, video and other media that contain Partner Data on Spoak’s website and/or applicable mobile app store page(s) for purposes of marketing and promoting the Spoak Platform.
2. Access to Spoak Platform. Subject to Partner’s payment of all fees and compliance with this Agreement, Spoak grants to Partner a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Term to use the Spoak Platform solely in connection with implementing and integrating Partner Data.
3. Usage Data. Spoak may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Spoak Platform and related systems and technologies (including information provided by third-party analytical tools). Spoak may analyze, copy, process, collect, use, disclose, and reproduce Usage Data for any purpose, including, without limitation, for the purposes of: (a) complying with a regulatory inquiry or judicial action of a governmental body; and (b) improving the Spoak Platform and developing new products, services, features, and functionality.
4. Trademarks. Each party will submit to the other party, for its prior written approval, which will not be unreasonably withheld or delayed, any press release or any other public statement concerning the existence of this Agreement or the subject matter hereof, except if and to the extent that such party is required to make any disclosure regarding the subject matter of this Agreement by Applicable Law, and in such event, the disclosing party shall provide at least five (5) business days prior written notice of such disclosure. In addition, during the Term, Spoak may use Partner’s name, trademarks, and logos (collectively, “Partner’s Marks”) on Spoak’s website and in its marketing materials to identify Partner as Spoak’s partner, and for the purpose of providing the Services, provided that Spoak shall use commercially reasonable efforts to adhere to the usage guidelines furnished by Partner with respect to Partner’s Marks.
OWNERSHIP
1. Partner Data. As between Spoak and Partner, Partner owns all right, title and interest in and to the Partner Data, including all Intellectual Property Rights therein and Spoak will not, by virtue of this Agreement or otherwise, acquire any proprietary rights whatsoever in any aspect of the Partner Data.
2. Spoak Platform; Usage Data. As between Spoak and Partner, Spoak owns all right, title and interest in and to the Spoak Platform and Usage Data, including all Intellectual Property Rights therein, but specifically excluding the Partner Data provided to Spoak by Partner under this Agreement. Partner will not, by virtue of this Agreement or otherwise, acquire any proprietary rights whatsoever in any aspect of the Spoak Platform or Usage Data.
PAYMENT
1. Fees. Partner will pay Spoak all fees described in the applicable Service Order in accordance with the terms therein (the “Fees”). If Partner believes that Spoak has billed Partner incorrectly, Partner must contact Spoak no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit.
2. Invoicing. As specified in the relevant Service Order, Spoak may bill Partner through an invoice, in which case, unless otherwise specified, full payment for invoices issued in a given month is due thirty (30) days after the date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by Applicable Law, whichever is lower, plus all expenses of collection, and may result in immediate termination of access to the Spoak Platform. All amounts paid under this Agreement will be paid in U.S. Dollars.
3. Taxes. Other than federal and state net income taxes imposed on Spoak, Partner will bear all taxes, duties, and other governmental charges relating to the Spoak Platform.
TERM AND TERMINATION
1. Term. The initial term of this Agreement begins on the Effective Date and expires one (1) year after the Effective Date (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides the other with at least sixty (60) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
2. Termination for Cause. Each party will have the right to terminate this Agreement immediately upon written notice if the other party breaches any material term or condition of this Agreement and fails to cure the breach within thirty (30) business days after written notice thereof.
3. Effect of Termination. Upon any termination of this Agreement: (a) each party will promptly return or destroy all copies of any Confidential Information of the other party in its possession or control, provided that Spoak shall have no obligation to take down, disable, remove or otherwise cause the removal from the Spoak Platform any Partner Data or other marketing or promotional communication incorporating Partner Data that were already disseminated during the Term; (b) Spoak’s right to license Partner Data as set forth in Section 3.1 shall cease, except as provided in Section 6.3(a); and (c) Partner’s access to the Spoak Platform as set forth in Section 3.2 will cease.
4. Survival. In addition to any other provisions of this Agreement that by their terms survive, the provisions of Sections 1, 3.3, 4, 5, 6.3, 6.4, 8, 9, 10, and 11 will survive the expiration or any termination of this Agreement.
WARRANTIES
1. Mutual Warranties. Each party represents and warrants to the other party that it has full power, right and authority to enter into this Agreement and to carry out its obligations under this Agreement, and that it will act in compliance with the Spoak Policies and Applicable Law in performing such obligations.
2. Partner Warranties. Partner represents and warrants to Spoak that: (a) it has full power, right and authority to grant to Spoak the rights granted to Spoak under this Agreement (including all Intellectual Property Rights in the Partner Data); (b) the Partner Data does not contain any information that may be false, inaccurate, misleading or otherwise in violation of Applicable Law or the Spoak Policies; and (c) Partner has not entered into (and will not enter into) any other agreements, written or oral, with any third party that are (or that would be) inconsistent with the terms of this Agreement;
3. Disclaimer. EXCEPT AS EXPRESSLY WARRANTED HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE AND ANY OTHER ACTS OR SERVICES PROVIDED BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, SPOAK HEREBY DISCLAIMS ANY WARRANTY THAT THE SPOAK PLATFORM AND SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
INDEMNITY
1. Spoak Indemnity. Spoak agrees to protect, indemnify and hold Partner harmless from and against any and all third party demands, suits, actions, settlements or other judgments and any expenses, damages, liabilities, penalties, or losses, including reasonable attorneys’ fees (“Claims”), arising out of, or in any way connected with: (a) an allegation that the Spoak Platform (excluding the Partner Data, any modifications made by Partner to its product listings, or Partner-applied filters or metadata) infringes the Intellectual Property Rights of a third party; (b) any gross negligence, willful misconduct, or fraud of Spoak; and (c) a breach of Applicable Laws, in each case subject to Partner’s indemnification obligations under Section 8.2.
2. Partner Indemnity. Partner agrees to protect, indemnify and hold Spoak harmless from and against any and all Claims arising out of, or in any way connected with: (a) an allegation that the Partner Data infringes the Intellectual Property Rights of a third party; (b) any gross negligence, willful misconduct, or fraud of Partner; and (c) a breach of Applicable Laws, in each case subject to Spoak’s indemnification obligations under Section 8.1.
3. Indemnification Procedures. The party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
CONFIDENTIAL INFORMATION
1. Restrictions. Each party will not use the other party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee or subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all of the other party’s Confidential Information, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar importance.
2. Exclusions. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest the order or requirement. In addition, each party may disclose the terms and conditions of this Agreement: (a) as required under applicable securities regulations; and (b) on a confidential basis to its legal or financial advisors, insurance brokers or actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and brokers) for due diligence purposes. This Section will survive the expiration or termination of this Agreement for a period of five (5) years.
LIMITATIONS OF LIABILITY. EXCEPT FOR (A) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS IN SECTION 9, (B) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, (C) A BREACH OF PARTNER’S PAYMENT OBLIGATIONS, OR (D) A BREACH OF A PARTY’S INDEMNITY OBLIGATIONS IN SECTION 8: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR THE SPOAK PLATFORM, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; AND (II) IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAYABLE BY PARTNER TO SPOAK PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
MISCELLANEOUS.
1. Arbitration. Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in Columbia County, NY. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) seek injunctive relief in a court of law; or (b) to file suit in a court of law to address an intellectual property infringement claim.
2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Columbia County, NY and the parties irrevocably consent to the personal jurisdiction and venue therein.
3. Non-Solicitation. During the Term and for one (1) year thereafter, Partner will not directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employee or contractor of Spoak to terminate their engagement with Spoak. This Section 11.3 will apply solely to the extent permitted by Applicable Law.
4. Equitable Relief. Each party agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Partner, Section 2.4, would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
5. Assignment. Partner may not assign its rights or delegate its performance, by operation of law or otherwise, under this Agreement without Spoak’s prior written consent, and any attempt to do so without such consent is void. Spoak may assign its rights or delegate its performance under this Agreement without Partner’s consent. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.
6. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
7. No Waiver. Either party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.
8. Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
9. No Third-party Beneficiaries. Unless otherwise expressly provided, no provisions of this Agreement are intended or will be construed to confer upon or give to any person or entity, other than the parties hereto, any rights, remedies or other benefits under or by reason of this Agreement.
10. Notices. All notices under this Agreement must be in writing, and will be considered given: (a) upon delivery, if delivered personally or by internationally recognized courier service; (b) three (3) business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (c) upon acknowledgement of receipt, if delivered by email. All notices to Spoak will be sent to:
  - Spoak Decor, Inc.
  - 6355 North Red Tail Road
  - Jackson, WY 83001
  - Email: legal@spoak.com
  - Attn: Hilah Stahl
11. ‍Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) to the extent the failure or delay is due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action.‍
12. Subcontractors; Third-Party Vendors. Spoak may use subcontractors or other third parties (“Subcontractors”) to perform its obligations under this Agreement, provided that Spoak will remain responsible for the performance of each Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors, including any hosting (e.g., AWS) or payment vendors (e.g., PayPal), Spoak will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Spoak.
13. ‍Counterparts. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument.‍
14. Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties.