Culturly Creator Agreement
Culturly a German corporation with its principal place of business at Gänsemarkt 43, 20354 Hamburg is an online goods and services platform for food and beverage, education, wellness and team building activities designed for corporate clients.
Subject to this Master Experiences Agreement and the Culturly Platform General Terms and Conditions, the Service Provider (“Provider”) agrees to comply with the obligations in fulfilling Orders by corporate clients of Culturly (the “Customers”) through Culturly's platform. For the avoidance of any doubt, Culturly is not a reseller of any goods or services. Culturly is an independent and Provider-neutral platform that recommends the best-fitting Providers to provide services based on Customers’ needs.
Culturly will give the Provider access to the Culturly in order to allow the Provider to: (a) use and access the Culturly to receive and fulfill Orders and receive payment for the Orders and (b) market and promote the Provider’s goods, services and offerings through the Culturly (“Services”).
This Agreement is effective on the date on which the Provider clicked on the “Accept” button or signs this Agreement and will continue until terminated in accordance with this Agreement (the “Term”).
3. License Grant by the Provider
The Provider grants Culturly a non-exclusive, irrevocable (during the Term and for 6 months thereafter), royalty-free, fully paid up, transferable, worldwide license to use the Provider’s name, service offerings, photos, logo, pricing, product and service information, if applicable, and other marketing materials provided by the Provider (“the Provider Content”) for the purposes of publishing and displaying such information on the Culturly website.
4. The Provider’s Obligations
(a) Order fulfilment; the Provider will: (i) prepare, process and deliver the Services ordered by Customers through the Culturly (the “Orders”) with the level of skill, care, quality, competence and diligence as would reasonably and ordinarily be expected to be exercised, (ii) not, without Culturly's prior written consent, solicit to provide Culturly's Customers directly or indirectly with the same or substantially similar services. described in this Agreement during the term of the Agreement and for six (6) months after expiration or termination of same, (iii) not, without Culturly's prior written consent, reach out to Customers directly regarding orders received through the Culturly, (iv) use reasonable efforts to redeliver Orders or provide a refund to the Customer in respect of any Order to ensure Customer’s satisfaction with the Services of the Provider, including, without limitation, circumstances where the Provider did not fulfil the Order correctly or delivered the Order late; and (v) be solely responsible for remitting and paying all taxes on the Orders. (b) Customer Order Cancellation and Edit Policy: All Orders can be edited and or cancelled at any time up to 5 business days prior to the event. Notwithstanding, the Provider will make its best efforts to honor Order edits or cancellations outside of the above timeframes as practicably possible due to special or unforeseen circumstances. (c) Pricing and Content; the Provider will: (i) offer on the Culturly prices that are equal or lower to the prices made available to the Provider’s Customers generally, (ii) provide Culturly with updated and current Provider Content. The Provider is solely responsible for ensuring the accuracy of the Provider Content.
5. Culturly Obligations
Culturly will process through the payment processing services provider and pay to the Provider the total amount for Orders paid to Culturly minus Culturly Fees, applicable discounts, Processing Fees and any surcharges (plus any applicable taxes) as specified in Section 6.
6. Fees and Payment
Culturly will charge 20% Servicing fee, if tech support, moderation, event management is requirement for the events.
7. Suspension of Service
Culturly may, acting reasonably, revoke the Provider’s licenses or suspend the Provider’s access to, or use of, the Culturly at any time and for any reason, including, without limitation, for: (a) poor Customer service, (b) late fulfilment of Orders, (c) any action or omission of the Provider that could result in damage to the Culturly's brand or reputation.
(a) The Provider acknowledges that the Culturl may provide Customer with the ability to provide ratings, reviews, and photographs relating to the Order and the Provider that are publicly available, which feedback may contain statements that reflect positively or negatively on the Provider, including statements that are untrue, negative, defamatory, offensive, derogatory, or explicit (the “Reviews”). (b) Culturly may, in its sole discretion and for any reason (or no reason), remove or edit any Reviews. For greater clarity, the Provider acknowledges that Culturly is under no obligation to remove or edit any Reviews.
Culturly may terminate this Agreement immediately upon written notice to the Provider with cause or without cause at any time. The Provider may terminate this Agreement with cause or without cause at its convenience. On its effective date, Culturly will put the termination into effect by no longer accepting additional orders for Services from the Provider. However, even in the case of a termination, the Provider is required to fulfill all orders that it had accepted prior to the effective date of the termination.
11. Confidential Information and data security
(a) The Provider, the Provider’s officers, directors, employees, agents, representatives or contractors will not disclose to any person or entity any proprietary or confidential information of Culturly, including without limitation the Culturly user interface, Culturly features, and any information associated with the Culturly Solution which would reasonably be viewed as proprietary or confidential in the circumstances of the disclosure (the “Confidential Information”) and which the Provider or its employees, agents, representatives, or contractors may learn or become familiar in relation to this Agreement. “Confidential Information” shall mean (i) all information and materials disclosed in tangible form by and exchanged between the parties in connection with the Services; and (ii) all information disclosed orally or otherwise in intangible form by and exchanged between the parties in connection with the Services. “Confidential Information” may include, without limitation, communications, any Customer data and information, names and expertise of employees and consultants, know-how, processes, formulae, algorithms, code, IT system configuration, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, business strategies, documentation and other information. The foregoing obligations will not apply to: (a) information that is or becomes generally publicly available through no action or omission of the Provider; (b) information that the Provider obtains from a third party who is under no obligation of confidentiality; or (c) information that the Provider independently develops without reference to the Confidential Information. The Provider may disclose Confidential Information if required to be disclosed pursuant to a lawful order of a court or a person having jurisdiction to make such an order, provided that, if permitted by law, the Provider notifies Culturly and provides Culturly with an opportunity to obtain a protective order regarding the confidentiality of the Confidential Information. If the Provider is compelled to disclose such Confidential Information, the Provider will only disclose the Confidential Information that is specifically requested in the order of the court. The Provider agrees that this Agreement will not be disclosed to others, except with Culturly's prior written consent. (b) The Provider shall treat all Confidential Information collected or received from Culturly in connection with the Services with all appropriate administrative, technical and physical safeguards against unauthorized access, disclosure or use of the data. Such safeguards shall include those required under all applicable privacy and data protection laws and regulations, as well as ethical obligations, and shall specifically include the use of encryption or other secure method of protecting data when sensitive personal information is involved. The Provider shall notify Culturly promptly of any data security breach affecting Culturly's Confidential Information required to be reported under any applicable law. The Provider shall be responsible to Culturly for all losses caused by the Provider’s failure to protect Confidential Information in accordance with the standard set forth herein including but not limited to remediation expenses.
12. Representations, Warranties and Indemnities of Provider
(a) The Provider represents and warrants to Culturly that: (i) The Provider Content and User Data provided to Culturly do not violate, infringe, or otherwise breach any patent, copyright, trade-mark, trade secret or other proprietary rights of any third party and that the Provider has all necessary rights and consents to grant Culturly the rights and permissions granted in this Agreement; (ii) The Provider’s signing of this Agreement and the fulfilment of its obligations hereunder do not and will not breach any agreement that the Provider has or will enter into with any third parties; (iii) The Provider will remain at all times in compliance with all applicable health, safety and sanitary standards prescribed by any governmental authority as applicable, and will notify Culturly if it is in breach of same; (iv) The Provider is and will keep in good standing all licenses, permits and authorizations and is in compliance and will comply with all codes, standards, directions, orders or otherwise required by any governmental authority or regulatory body of its applicable services industry, and will notify Culturly if it is in breach of same; and (v) The Provider will remain at all times in compliance with all applicable federal and provincial privacy legislation and anti-spam legislation and will comply with all applicable laws. (b) Indemnification by the Provider. The Provider will indemnify, defend and hold Culturly (its subsidiaries, affiliated entities, partners and Customers using the Culturly Solution) harmless from and against all losses suffered or incurred directly or indirectly arising from or in connection with or relating to: (i) any death, bodily injury, sickness, disease or injury of any kind of any person to the extent caused by the Provider; (ii) any damage, loss or destruction of any tangible, real, or personal property to the extent caused by the Provider; (iii) any negligence or criminal, fraudulent or other willful misconduct on part of the Provider, including any crime, fraudulent or dishonest acts committed by any current or former the Provider personnel, acting alone or in collusion with others; (iv) any amounts assessed or reassessed against, or imposed on Culturly that are the obligation of the Provider; (v) any and all damages, losses, liabilities, obligations, claims, litigation, demands, suits, causes of action, judgments, costs or expenses, including without limitation reasonable attorneys’ fees, arising out of or relating to the gross negligence or willful misconduct of the Provider or its employees in the performance of the Services under this Agreement and/or breach of applicable laws, regulations, permits, licenses, orders, codes, rules or directions of any governmental authority, regulatory body, agency or payment card association or card rules; (vi) all damages, losses and costs (including reasonable legal costs and costs if investigation) resulting from any employment related claims, including, without limitations, claims for workers compensation benefits, common-law employment claims, or claims for co-employment and from any other employment-related claims arising from provision of the Services hereunder. (vii) Without derogating from any of the above, the Provider agrees to indemnify and hold Culturly harmless against any loss, liability, damages, costs or expenses (including attorneys’ fees) arising out of any third-party claims or suits brought or made against Culturly arising out of or in any manner connected with the provision of any Services by the Provider under this Agreement.
13. Disclaimer and Limitation of Liability of Culturly
(a) DISCLAIMER. THE PROVIDER ACKNOWLEDGES THAT THE DISCLAIMER AND LIMITATION OF LIABILITY IN THIS AGREEMENT REFLECT A FAIR APPORTIONMENT OF LIABILITY. THE CULTURLY SOLUTION (INCLUDING ANY INTELLECTUAL PROPERTY INCLUDED THEREIN) IS PROVIDED “AS IS” AND “WHERE IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT SPECIFICALLY PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CULTURLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE CULTURLY SOLUTION, BOTH ORAL AND WRITTEN, WHETHER EXPRESS, IMPLIED OR COLLATERAL OR WHETHER ARISING BY STATUTE, COURSE OF DEALING, CUSTOM OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION (I) THAT THE CULTURLY SOLUTION (OR ANY PART THEREOF) WILL BE OF MERCHANTABLE QUALITY AND FIT FOR A PARTICULAR PURPOSE, (II) THAT THE CULTURLY SOLUTION WILL BE ACCURATE, COMPLETE, CURRENT, RELIABLE, OR TIMELY, (III) THAT CULTURLY SOLUTION WILL BE AVAILABLE OR OPERATION OF THE CULTURLY SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE (IV) THAT DEFECTS OR ERRORS IN THE CULTURLY SOLUTION (BE THEY HUMAN OR COMPUTER ERROR(S)) WILL BE CORRECTED, (V) THAT THE CULTURLY SOLUTION WILL BE FREE FROM VIRUSES OR HARMFUL COMPONENTS, (VI) THAT COMMUNICATIONS TO OR FROM THE CULTURLY SOLUTION WILL BE SECURE OR NOT INTERCEPTED, AND (VI) ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS ARISING OTHERWISE. THE PROVIDER EXPRESSLY AGREES THAT THE PROVIDER’S USE OF THE CULTURLY SOLUTION IS ENTIRELY AT THE PROVIDER’S OWN RISK. (b) LIMITATION OF LIABILITY. NEITHER CULTURLY, NOR ITS AFFILIATES AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS OR LICENSORS WILL BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE TOTAL FEES PAID BY THE PROVIDER TO CULTURLY IN THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE. IN NO EVENT WILL CULTURLY OR ITS AFFILIATES AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY LOSS OR DAMAGES IN THE NATURE OF, OR RELATING TO, LOST REVENUE, LOST PROFIT, BUSINESS INTERRUPTION, INACCURATE INFORMATION, LOST PROGRAMS OR DATA (INCLUDING ANY USER DATA), NEGATIVE REVIEWS, OR ANY OTHER LOSS INCURRED IN CONNECTION WITH THE PROVIDER’S USE, INABILITY TO USE, OR MISUSE OF THE CULTURLY SOLUTION, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING LIMITATION WILL APPLY EVEN IF CULTURLY KNEW OF OR OUGHT TO HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
14. Amendments and Updates to this Agreement
Culturly may amend this Agreement (the “Amendment”) from time to time in Culturly's sole discretion. When an Amendment is made, Culturly will provide notice of such Amendment to the Provider through email or the Cultury's Solution. The Provider will have 5 days to accept the Amendment after notice is given. In the case that the Provider fails to explicitly accept the Amendment by the 5th day after receipt of the notice from Culturly, the Agreement will be deemed accepted.
15. Independent Contractor
For the avoidance of any doubt, the Provider is an independent contractor and elected to provide Services and accept Orders on the Culturly Solution as an independent contractor. The Provider is not and shall not represent itself to be an agent of Culturly. No Provider contractor or employee, by virtue of assignment to Culturly or Culturly's Customers, will be deemed an employee of Culturly or its Customers.
16. Governing Law
This Agreement will be construed and governed by the laws of Germany.