This Marketplace Services Agreement (this “Marketplace Agreement”) is by and between you (“you” or “Retailer”) and Lovingly, LLC, (“we,” “us” or “Lovingly”), a Delaware limited liability company with a principal place of business located at 1399 Route 52, Suite 100, Fishkill, New York 12524. This Marketplace Agreement describes the terms under which Lovingly will provide you with access to and use of the Marketplace Services.

1. Binding Agreement.

1. Binding Agreement. This Marketplace Agreement constitutes part of a single, binding agreement between you and Lovingly that includes the documents and terms incorporated by reference as described in Section 3 below (collectively, this “Agreement”).  

2. Effective Date. When you log into your Retailer Account from time to time, you will be presented with a dialogue box prompting you to agree to certain relevant terms and documents. By checking the box corresponding to this Marketplace Agreement and clicking “I Agree” or taking any similar actions within that dialogue box, you agree to the terms of this Agreement. The date you take such actions is the “Effective Date” of this Agreement.

2. Definitions.

1. “Agreement” has the meaning given to it in Section 1(a).

2. “Authorized User” means Retailer's employees, consultants, contractors, and agents who are authorized by Retailer to access and use the OPMS Services subject to the terms of this Agreement.

3. “Credit Card Fee” has the meaning given to it in the Retailer Terms of Service.

4. “Customer” has the meaning given to it in the Retailer Terms of Service.

5. “Customer Order” means any purchase made by a Customer through the Services, whether made directly by the Customer or manually entered by Retailer.

6. “Effective Date” has the meaning given to it in Section 1(b).

7. “Marketplace” has the meaning given to it in Section 4.

8. “Marketplace Services” has the meaning given to it in Section 4.

9. “Primary Service Agreement” has the meaning given to it in the Retailer Terms of Service.

10. “Privacy Policy” means means the written policy located at https://www.lovingly.com/legal/privacy-policy, which governs our use of the information we collect from retailers and customers.

11. “Retailer” has the meaning given to it in the preamble.

12. “Retailer Account” has the meaning given to it in the Retailer Terms of Service.

13. “Retailer Terms of Service” means the terms of service located at https://www.lovingly.com/legal/us/retailer-terms, which describe the general terms of the commercial relationship between you and Lovingly.

14. “Services” means any of the products and services offered by Lovingly under a Primary Service Agreement, including, but not limited to, our e-commerce website solution, our order and payment management system, point of sale services, wedding services, and Marketplace Services, along with any related products or services.

15. “Transaction” has the meaning given to it in Section 7.

16. “Transaction Fee” has the meaning given to it in Section 7.

3. Incorporated Documents; Conflicts.

1. This Marketplace Agreement incorporates the following documents by reference:

1. the Retailer Terms of Service; and

2. any other agreements, exhibits, appendices, addenda or other terms incorporated by reference in any of these agreements.

2. If there is any conflict between the terms of this Marketplace Agreement, the Retailer Terms of Service or any other incorporated terms or documents, such terms or documents will have the following order of precedence (from most to least controlling):

1. this Marketplace Agreement (for matters pertaining exclusively to the Marketplace Services);

2. the Retailer Terms of Service; and

3. any other terms or document incorporated herein.

4. Description. Lovingly develops and maintains an online marketplace that offers visitors the opportunity to browse and purchase products from retailers like you (the “Marketplace”). Lovingly offers retailers the option to sell their products and services on the Marketplace. The Services Lovingly offers that are directly related to marketing, placing and accepting orders for Retailer’s products and services on the Marketplace are called the “Marketplace Services.”

5. Access and Use.

1. Access Rights. Subject to the terms of this Agreement, Lovingly hereby grants you a limited, revocable, non-exclusive, non-transferable (except in accordance with Section 24(b) of the Retailer Terms of Service) right to access and use the Marketplace Services during the Term. Your right to access and use the Marketplace Services pursuant to this Agreement extends only to your Authorized Users and may be exercised only in accordance with the terms and conditions of this Agreement. Such use is limited to your internal use. Lovingly shall provide the Marketplace Services through your Retailer Account as described in Section 5(b) below

2. Retailer Account. In order to access the Marketplace Services, you are required to create a Retailer Account. See Section 4 of the Retailer Terms of Service for more information on Retailer Accounts and accessing the Services.

3. Suspension. You may activate or deactivate the Marketplace Services at any time through your Retailer Account.

4. Orders. Customer Orders made through the Marketplace will automatically be sent to your Retailer Account, which you may use to process the orders. All Customer Orders must be processed in accordance with Section 14 of the Retailer Terms of Service.

6. Design and Marketing Decisions.

1. Lovingly may consult with you regarding the initial content and template design of your entry in the Marketplace. However Lovingly shall have no obligation to notify you or consult with you regarding any Marketplace content or design, including any changes thereto. If you and Lovingly disagree as to any decision regarding Lovingly’s performance of the Marketplace Services, including but not limited to the content and design of the your entry therein, Lovingly’s sole determination shall be final.

2. Notwithstanding Section 6(a) above, your decision shall be final as to (i) what products and services will be sold via the Marketplace (with the exception of the Lovingly Artist Design, which you hereby agree to offer), and (ii) the sale price of the products and services sold via the Lovingly Store. As used herein, the “Lovingly Artist Design” means an arrangement of flowers as determined by Retailer and Customer input and offered at three (3) price points. You hereby acknowledge that the name “Lovingly Artist Design” is subject to change and that this product may be marketed to you or your Customers under a different name from time to time.

7. Fees.

1. Transaction Fee. You hereby authorize Lovingly to charge a transaction fee (the “Transaction Fee”) from the monies due to you for each Customer Order made via the Marketplace Services (each such Customer Order, a “Transaction”). The Transaction Fee includes both a Lovingly Fee, which is received by Lovingly as well as the Credit Card Fee, which is defined in the Retailer Terms of Service. The current Transaction Fee is ten percent (10%) of the price paid by the Customer.

2. Chargeback Authorization. In addition to the Transaction Fee, you hereby authorize Lovingly to charge its standard charge back fees pursuant to Section 13 of the Retailer Terms of Service. 
   

3. Refunds; Fee Changes. Refunds and Fee Changes are governed by Section 13 of the Retailer Terms of Service. 
   

8. Term and Termination.

1. Term. This Agreement remains effective until terminated pursuant to Section 8(b).

2. Termination. In addition to any termination rights bestowed elsewhere in this Agreement, either Party may terminate this Agreement for any reason upon two (2) weeks’ prior written notice to the other Party. Lovingly may also terminate this Agreement immediately in the case of your breach of this Agreement.

9. Entire Agreement; Inurement. It is hereby acknowledged that this Marketplace Agreement, together with the Retailer Terms of Service and any other terms or documents incorporated by reference herein, constitute the entire agreement between the Parties pertaining to the Marketplace Services, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. This Agreement will inure to the benefit of and be binding upon the Parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.