Last updated on: 29 May 2019
BEFORE YOU PARTICIPATE IN THE PROGRAM(S) OPERATED BY GLOBINESS INC. (“GLOBINESS”) THAT ARE COVERED BY THESE GLOBINESS STORE PARTNER TERMS (“STORE PARTNER TERMS” OR “TERMS”), PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET OR JOINING SHEET WITH GLOBINESS OR OTHERWISE AGREEING TO THESE TERMS, INCLUDING THROUGH AN AUTHORIZED GLOBINESS PARTNER, YOU OR THE ENTITY THAT YOU REPRESENT AGREE ON BEHALF OF ALL PARTICIPATING STORE LOCATIONS TO BE BOUND BY THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.
SECTION 16 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 16 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 16 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
Partner Store confirm that I have read, understood and agree with Globiness Terms of Service or TOS (https://www.globiness.ca/terms), as the same may be modified by Globiness from time to time.
Definitions.
1. Store Partner Core Responsibilities.
2. Globiness Core Responsibilities..
3. Refunds and Re-Orders.
4. Order Equipment.
5. Payment, Fees, and Taxes.
6. Payment Processing.
7. Use of Store Partner Content and Trademark.
8. Confidential Information.
9. Data Privacy.
10. Termination.
11. Modifications.
12. Representations and Warranties; Disclaimer.
13. Indemnification.
14. Limitation of Liability.
15. Insurance.
16. Dispute Resolution.
17. Eligible Franchisees
18. Partner Code of Conduct.
19. General Provisions.
Definitions
“Driver” means third-party delivery contractor, also known as “Delivery Person” or “Courier” or “Delivery Partner”.
“Globiness Data” shall mean any information that Globiness provides or makes accessible to Store Partner through the Globiness Platform, including without limitation Personal Information.
“Customer” means the Globiness customer who places an order through the Globiness Platform.
“Globiness Platform” means the online ordering platform where Customers can place an order for Store Partner Products via the Globiness website or mobile application.
“Globiness Services” means Globiness Platform and Globiness Delivery, as applicable.
“Delivery Term” means the term of the agreement between Globiness and Store Partner for Globiness Delivery.
“Orders” means orders for Store Partner Products through the Globiness Platform from customers.
“Store Partner” means the store or other entity that has agreed to participate in the Globiness Services, also known as “Partner Store”.
“Store Partner Products” means all products offered for delivery orders at Store Partner Stores.
“Stores” means the Store Partner locations that are within the then-current territory services by Globiness and that have elected to participate in the Globiness Services, as may be amended by an exchange of emails.
“Store Partner Term” means the term of the agreement between Globiness and Store Partner for the Globiness Platform.
“Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law.
“Schedule for Later Order” shall mean an Order to be fulfilled at a particular time later in the same day or at a later date.
“Third Party Platform” means a technology interface, such as a middleware technology platform, other than the online order form and any API.
“Time Slot” means two (2) or three (3) hours time period when order will be delivered to customer, Also known as “Delivery Time”.
“House Account” means Store Partner’s self pay account for Globiness orders. At the time of creating bill/receipt for Globiness order, Store Partner self pay from store’s account.
1. Store Partner Core Responsibilities.
For Store Partner that have agreed to participate in the Globiness Platform, Globiness and Store Partner shall have the following responsibilities during the Platform Term:
Store Partner Core Responsibilities. Store Partner will timely:
Accept all Platform Orders placed by Globiness;
Confirm all Platform Orders from Globiness promptly and must be accepted within five (5) minutes;
Pick, pack and bill the Store Partner Products for each Platform Order for pickup by a Driver at the designated time and Order must be ready for pickup (ten) 10 minutes before its Time Slot (Delivery Time) start time;
Pack all chemical or hazardous items separately from food and edible items;
Pack all temperature sensitive, frozen and refrigerated items separately in temperature controlled bag or box, as well as keep it in temperature controlled manner until Delivery Driver arrive for Pickup;
For all Order use Picker Account and/or Store Partner Account to complete required action(s) in Globiness Platform;
Verify Delivery Drivers identity and authenticity before handing over the order, including but not limited to matching order details, order number, delivery driver’s personal identity and related details;
Each processed handover correctly to driver including but not limited to check quantities, qualities, bags, boxes and its counts or numbers or code, Original Bill of Sale or Original Receipt;
Enter correct bill or receipt amount in Platform for Globiness Customer receipt and bill or receipt amount must match adjectly with Store Original Receipt of sale;
Process Platform Orders in the order in which they are received; manage scheduled for later order’s time and resources to handle the order timely;
Comply with Item and Item Substitute requirement set by customer and Globiness;
Follow any and all customer notes, details, descriptions, weight, quantities, and comments provided in Picker Account and/or Store Partner Account along with order;
Promptly notify Globiness of any changes to the pricing, availability, description, or other characteristics of the Store Partner Products;
Notify Globiness of its days and hours of operation, and remain open for business on Globiness the same days and hours of operation as Store Partner’s in-store business; notify Globiness of any changes to Store Partner’s hours of operations on federal holidays; and notify Globiness if Store Partner closes earlier than Store Partner’s standard hours of operation or plans to close earlier than Store Partner’s standard hours of operation;
Notify all Store Partner store staff members of the relationship with Globiness immediately upon execution of this Agreement; and
Provide the same box, bags and other materials that Store Partner would typically provide in a standard order or delivery order.
Store Partner agree that you will not set a Retail Price higher than the amount you are charging for similar to in-store location customers.
Store Partner is responsible for any and all goods and services sold via Globiness Platform and provide post delivery services; including, return, refund and exchange; listen to their customers issues and problems; and resolve it promptly with highest customer service standards.
Notification. Store Partner agrees to notify all staff members in Store Partner Stores of the relationship with Globiness.
2. Globiness Core Responsibilities. Globiness will:
Display Store’s logo and/or name; a listing of the Store Partner Stores;
Accept Platform Orders from Globiness Customers;
Forward each Platform Order to the relevant Store Partner Store; and
Forward each Platform Order to a Driver, so that the Driver can pick up the applicable Store Partner Product(s) from the Store Partner Store to deliver to the Globiness Customer.
If Globiness determines, in its reasonable discretion, that continuing to support Platform Orders of a particular Store Partner Product or Store Partner Store could subject Globiness to undue regulatory risk or other liability, then Globiness may remove or restrict such Store Partner Product and/or Store Partner Store from the Globiness Platform.
Hours of Operation. The pickup and dropoff of deliveries will be scheduled to take place during Globiness’s standard hours of availability, as may be updated from time to time in Globiness’s sole discretion. Store Partner agrees to abide by the following standard procedures: (i) to notify Globiness of any changes to hours of operations on federal holidays with reasonable advance notice; and (ii) to notify Globiness with reasonable advance notice if a Store Partnerlocation closes earlier than standard hours of operation or plans to close earlier than standard hours of operation.
Delivery Radii or Zone. The Parties agree that Globiness will only accept Delivery Orders within a certain radius or Zone from the Store location(s), as Globiness may determine in its sole discretion.
Cancellations. Fees owed for any Delivery Orders cancelled within twenty-four (24) hours of a Schedule for Later delivery are non-refundable. If provided more than two (2) hours notice, but less than twenty-four (24) hours notice, Globiness will make reasonable efforts to accommodate changes. Fees owed for any Delivery Orders cancelled after a Driver has accepted a delivery opportunity will be non-refundable.
3. Refunds and Re-Orders.
Refunds and re-orders shall be addressed as follows for Store Partners that have agreed to participate in the Globiness Platform, or Globiness Delivery, as applicable:
Platform Refunds. In the event that Globiness, in its sole reasonable discretion, has to issue a refund or re-order on an Customer’s Order, Store Partner will Pick, pack and bill to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund or re-order, unless the refund or re-order is due to the gross negligence or willful misconduct of Drivers or Globiness.
Delivery Refunds. Store Partner acknowledges and agrees that Globiness shall be responsible only for facilitating the delivery of Store Partner Product(s) to Customers, and, if applicable, providing delivery status updates to Customers. Store Partner shall be solely responsible for any customer complaints regarding Store Partner Product(s), including without limitation, complaints regarding the nature, quality, content, number, or packaging of Store Partner Product(s). Store Partner agrees not to refer any Customer complaints directly to Globiness. Any complaints regarding the timeliness or quality of a Driver’s delivery service shall be reported by Store Partner to Globiness. If the completion of a Delivery Order is more than 24 hours late and due to fault of Globiness, Globiness will reimburse Store Partner for all or a portion of the delivery cost of the applicable Delivery Order. If Store Partner elects to refund a Customer for any reason, such election shall not obligate Globiness to provide a corresponding reimbursement to Store Partner. In the event that a Store Partner Product has been visibly damaged with proof from customer, Globiness may reimburse Store Partner for all or a portion of the order subtotal. For the purposes of this agreement, “Store Partner Product” is the actual goods or grocery item or pet food items, not the packaging that contains the Store Partner Product. In no event shall Globiness be obligated to issue any refunds directly to Customers. In the event of Missed Delivery and/or Customer unable to accept the order from Globiness Driver and/or any reason Order is not delivered to customer, then Globiness Driver will return that full or partial order to store. In any and all situations store must accept the return order from Globiness Driver and issue the full amount refund to Store Partner’s House Account (Globiness).
4. Order Equipment.
With respect to the Globiness Platform, Store Partner will install any equipment reasonably required by Globiness for Store Partner to receive Orders (including, without limitation, a tablet, a computer, a laptop, a printer, fax machine, or other automated, electronic means of receiving Orders) (“Order Equipment”). Any Order Equipment provided by Globiness will remain Globiness’s sole property and may be used solely for purposes related to fulfilling Store Partner’s responsibilities under this Agreement. Store Partner agrees to use any security procedures or protocols or access credentials as requested by Globiness. Store Partner will not allow any third party to use the Globiness Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the Globiness Platform; damage, destroy or impede the services provided through the Globiness Platform; transmit injurious code; or bypass or breach any security protection on the Globiness Platform. Globiness may restrict or rescind Store Partner’s right to use the Globiness Platform at any time. Store Partner will be responsible for any damage to or loss of any Order Equipment provided by Globiness, which will be promptly reimbursed by Store Partner(at the replacement cost thereof). Globiness may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments.
5. Payment, Fees, and Taxes.
Payment, fees, and taxes shall be addressed as follows for Store Partner that have agreed to participate in the Globiness Platform and Globiness Delivery, as applicable:
Globiness Platform. Globiness will pay for Platform Orders filled by Store Partner each week on a consistent day of the week, subject to change with no less than 10 days notice to Store Partners by email or service notification, provided that Globiness shall be entitled to deduct from such payment the Service Fee on all Platform Orders. If Store Partner has opted for Order Equipment subscription, Globiness will also deduct a weekly fee, as set forth on the Sign-Up Sheet or Joining Sheet. For the avoidance of doubt, Globiness will be entitled to a Service Fee on all Platform Orders at the rate stated in the Sign-Up Sheet or Joining Sheet and Globiness may also elect (in its sole discretion) to charge an Customer fees, including but not limited to a Delivery Fee and/or a Service Fee, as well as an additional markup for Store Partner Products. Store Partner shall be responsible for all taxes, duties, and other governmental charges on the sale of Store Partner Products under this Agreement and remitting such taxes, duties, and other governmental charges to the appropriate authorities. In the event that Store Partner raises the price for item, it shall not charge Globiness the higher price for ten (10) business days after it has provided notice to Globiness of that item price change. For Store Partners in Canada, Store Partner shall also be responsible for all taxes, duties, and other governmental charges on the Service Fee, which Globiness shall be responsible for withholding and remitting to the appropriate authorities.
Globiness Delivery. Store Partner will pay Globiness a fee per Delivery Order as mutually agreed. Store Partner shall be responsible for all taxes, duties, and other governmental charges on the sale of Store Partner Products under this Agreement and remitting such taxes, duties, and other governmental charges to the appropriate authorities. As agreed by the parties, payment of all fees under this Section 5(b) shall be as follows: (i) Store Partner shall pay the fees by credit card or ACH (EFT) at the time of ordering, or (ii) Globiness shall invoice Store Partner on a monthly basis and Store Partner shall pay the invoice within seven (7) days of receipt of such invoice, or (iii) Globiness will deduct such fees or any charges from Store Partner’s weekly earnings. If any fee is not paid in full by the due date, Globiness may assess interest on the unpaid amount for the period beginning on the Payment Date and ending on the date that the amount is paid in full. The amount of interest to be paid shall not exceed the maximum rate under applicable law.
Globiness and its sole discretion, may pay individual store partner next day or two (2) days payment of all platform orders. In this case, all weekends and holidays payment will be processed on the next business day after weekends or holidays. Any payment settlement on your bank account is depend on bank’s processing time and it may take up to 7 business days to process.
6. Payment Processing.
Payment processing services for Store Partners on the Globiness Platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, you agree to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Globiness enabling payment processing services through Stripe, Store Partner agrees to provide Globiness accurate and complete information about Store Partner’s representative and its business, and Store Partner authorizes Globiness to share it and transaction information related to Store Partner’s use of the payment processing services provided by Stripe. Stripe has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1. Globiness may change Payment processor at anytime without any notice to Partner Store.
7. Use of Store Partner Content and Trademark.
During the Platform Term, Store Partner grants to Globiness a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicenseable right and license to use the content, including without limitation, store name, inventories, prices, photographs, trademarks, and logos provided by Store Partner to Globiness for Globiness to use in providing services to Store Partner. Globiness reserve rights to do direct and indirect marketing, advertising, promotions via online, voice, video and printed methods; including social media ads on various third party platforms.
8. Confidential Information.
The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, Globiness Data is the Confidential Information of Globiness.
Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 8(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.
9. Data Privacy.
General. Store Partner agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner Globiness Data, including without limitation Personal Information, except as required to perform under this Agreement. Store Partner shall keep Globiness Data secure from unauthorized access and maintain the accuracy and integrity of Globiness Data in Store Partner’s custody or control by using appropriate organizational, physical and technical safeguards. If Store Partner becomes aware of any unauthorized access to Globiness Data, Store Partner will immediately notify Globiness, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Globiness.
Delivery Service API. During the Term, Globiness grants to Store Partner a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Delivery Service API solely to transmit information to facilitate the Globiness Delivery services. Store Partner will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Delivery Service API; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Delivery Service API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Delivery Service API; (iv) use the Delivery Service API in any manner or for any purpose that violates any law or regulation; and (v) use the Delivery Service API for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Delivery Service API) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature.
10. Termination.
Store Partner may terminate this agreement for any reason at any time upon 30 days prior written notice. Globiness may terminate this agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Store Partner nor Globiness will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by either Store Partneror Globiness.
11. Modifications.
Globiness reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. Globiness also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at https://www.globiness.ca/page/store-partner-terms/. We may notify Store Partner of material revisions via a service notification or an email to the email associated with your account. This notifications are optional, as the same may be modified by Globiness from time to time. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
12. Representations and Warranties; Disclaimer.
Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.
Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.
Store Partner further represents and warrants that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, permissions, health, food safety and sanitation, (ii) it has informed Globiness of any required consumer-facing warnings associated with Store Partner Product(s) and it will inform Globiness of any such warnings that become required in the future, and (iii) it will comply with its obligations under Section 1 of this Agreement.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, GLOBINESS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE GLOBINESS PLATFORM, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Store Partner acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Globiness shall not be responsible to Store Partner or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the Globiness services contemplated herein. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.
13. Indemnification.
Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel (or, in the case of Store Partner as the Indemnifying Party, caused by the Store Partner Products); (ii) any claims that the Indemnifying Party breached its representations or warranties in this Agreement; or (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, inventories, documentation, or other intellectual property (collectively, “Materials”). In addition, Store Partner will defend, indemnify and hold harmless Globiness from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Store Partner Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Globiness. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. Globiness assumes no liability, and shall have no liability, for any infringement claim pursuant to section 13(iii) above based on Store Partner’s access to and/or use of the Globiness Platform following notice of such an infringement claim; any unauthorized modification of the Globiness Platform by Store Partner; or Store Partner’s combination of the Globiness Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.
14. Limitation of Liability.
EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID FEES OWED BY STORE PARTNER IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 13 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
15. Insurance.
During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement.
16. Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE COMPANY (GLOBINESS) AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 16 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST THE COMPANY—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH THE COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Arbitration Rules and Forum. If any dispute occurs between the parties relating to the application, interpretation, implementation or validity of this Agreement, the Parties agree to seek to resolve the dispute or controversy through mediation with Canadian Arbitration Association before pursuing any other proceedings. Nothing herein shall preclude any Party from seeking injunctive relief in the event that the Party perceives that without such injunctive relief, serious harm may be done to the party. Any Party to the dispute may serve notice on the others of its desire to resolve a particular dispute by mediation. The mediator shall be appointed by agreement between the Parties or, if the Parties cannot agree within twenty (20) days after receipt of the notice of intention to mediate, the mediator will be appointed by Canadian Arbitration Association. The mediation will be held at Toronto, Ontario. The Parties agree to attempt to resolve their dispute at mediation. The costs of the mediator shall be shared equally by the Parties. If the dispute has not been resolved within thirty (30) days of the notice of desire to mediate, any Party may terminate the mediation and proceed to arbitration as set out below.
Subject to the mediation provisions set out above, if any dispute or controversy occurs between the Parties relating to the interpretation or implementation of any of the provisions of this Agreement, the dispute will be resolved by arbitration at Canadian Arbitration Association pursuant to the general Canadian Arbitration Association Rules for Arbitration. Any Party may serve notice of its desire to refer a dispute to arbitration. The arbitration shall be conducted by a single arbitrator. The arbitration shall be held in Toronto, Ontario. The arbitration shall proceed in accordance with the provisions of the Arbitration Act Ontario. The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie therefrom. The costs of the arbitrator (i) shall be divided equally between the parties or, (ii) CAD $10,000 total and Globiness will pay whichever is lower in total.
Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and the Company.
Waiver of Jury Trial. YOU AND THE COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and the Company are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 16 above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
Waiver of Class or Consolidated Actions; Severability. YOU AND THE COMPANY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor the Company is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 16, and all other provisions of this Section 16 (Dispute Resolution) shall remain in force. If any provision of this Section 16 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 16.
Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor the Company can force the other to arbitrate as a result of this Agreement. To opt out, you must notify the Company in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name, store name, your address, store address, your Globiness store id, your Globiness username (if any), the email address you used to set up your Globiness account (if you have one), and a CLEAR statement that you want to opt out of this
Arbitration Agreement. You must send your opt-out notice to: happiness@Globiness.ca. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND THE COMPANY .
Survival. This Arbitration Agreement will survive any termination of your relationship with the Company.
Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if the Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.
17. Eligible Franchisees
Franchisees operating a store concept licensed by Store Partner may participate in the Program pursuant to the terms and conditions of this Agreement provided that the individual franchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement in substantially the same form as the Supplemental Agreement provided by Globiness to Store Partner.
18. Partner Code of Conduct.
Store Partner will comply with the Partner Code of Conduct hosted at https://www.globiness.ca/page/partner-code-of-conduct
19. General Provisions.
Nothing in these Terms is to be construed as creating an agency, partnership, or joint venture relationship between Globiness and Store Partner, and except as expressly set forth herein, each party shall be responsible for its own costs of performance hereunder. As set forth on the Sign-Up Sheet or Joining Sheet executed between Store Partner and Globiness, these Terms form part of an Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. Except as set forth herein, no amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default. This Agreement is governed by and interpreted in accordance with the laws of the Province of Ontario without regard to the conflicts of laws principles thereof. The parties hereby consent to exclusive jurisdiction in the courts of Toronto, Ontario. Store Partner may not assign this Agreement in whole or in part without Globiness’s prior written consent. Globiness may freely assign this Agreement. This Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each party, but shall not confer any rights or remedies upon any other third party. All notices, requests, consents and other communications hereunder must be in writing, and delivered by overnight courier to the addresses set forth on the Sign-Up Sheet or Joining Sheet (or any updated address properly noticed hereunder). If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.
Our Corporate Mailing Address:
Globiness Inc.
1000 Central Parkway West, Unit: M008,
Mississauga, Ontario, Canada - L5C 0A6
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