Vendor Cooperative Marketing Agreement
Effective Date: May 1, 2024
This Agreement sets forth the terms and conditions under which Novela may refer Vendor to Novela customers, who are couples, their families, and friends who are planning weddings (“Customers”), to perform various wedding-related services and create wedding-related deliverables, and under which Novela may refer Vendor’s customers, who are couples, their families, and friends who are planning weddings (“Customers”), to other Vendors on the platform. The parties agree as follows:
1. DEFINITIONS
1.1 “Vendor Services” means the vendor-related services provided by Vendor in the private marketplace.
1.2 “Customer Agreement” means a written agreement between Vendor and a Customer pursuant to which such Customer engages Vendor to perform the Vendor Services in accordance with the terms of such agreement.
1.3 “Customer Data” means all electronic data or information of Customer to which the Vendor Service has access.
1.4 “Intellectual Property Rights” means all present and future copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.
1.5 “Platform” means Novela’s wedding booking software platform that it will make available to Customers via the internet.
1.6 "Vendor’s Partner Services" means the vendor-related services provided by Vendor’s partner vendors in the private marketplace.
2. APPOINTMENT, LICENSE GRANTS
2.1 Non-Exclusive Appointment. During the term of this Agreement, and subject to the terms and conditions of this Agreement, Vendor hereby appoints Novela as a non-exclusive reseller of, and referral source for, the Vendor Services, and Novela hereby accepts such appointment.
2.2 License Grant. Subject to the terms and conditions of this Agreement (including, without limitation, the payment of all fees), Vendor grants to Novela a non-exclusive, non-transferable license to:
(a) use the administrative capabilities regarding the Vendor Services made available to Novela solely for coordination purposes, such as scheduling meetings and wedding bookings, making introductions, facilitating execution of the Customer Agreement, and exchanging information and documents, for potential Customers and supporting Customers; and
(b) market and resell the Vendor Services and directly to Customers and potential Customers (subsections (a), (b) and (c ) collectively, the “Novela Services”).
(c ) market and resell Vendor Services directly to Vendor’s Customers and potential Customers (subsections (a), (b), and (c ) collectively, the “Novela Services”).
2.3 Trademark License and Marketing Materials. Subject to the terms and conditions of this Agreement, Vendor grants to Novela a non-exclusive, non-transferable, royalty-free license, without the right to grant sublicenses, to use, copy, reproduce and distribute any marketing materials provided by Vendor under this Agreement (the “Marketing Materials”) and to use any trademarks, service marks, logos and trade names of Vendor included in or on such Marketing Materials (the “Vendor Marks”), solely in connection with marketing the Vendor Service. Novela agrees to reproduce any Vendor Marks or other proprietary notices on any Marketing Materials copied, reproduced or distributed by Novela. Vendor grants no rights in the Marketing Materials or Vendor Marks other than those expressly granted in this Section 2.3 (Trademark License and Marketing Materials). Novela agrees not to modify or create derivative works of the Marketing Materials, except as approved in advance by Vendor.
2.4 Customer Data. Novela will provide each Customer’s contact information and wedding requirements (“Customer Data”) to Vendor once such Customer has entered into the Customer Agreement. Vendor agrees to provide updates to such information as needed for Novela to perform the Novela Services. Customer Data shall be considered Confidential Information of Novela, and treated in accordance with Section 9. Vendor may not augment, commingle, or supplement Customer Data with any other data from any third party. Vendor may not sell Customer Data under any circumstances, and may not transfer Customer Data except as explicitly provided in the next sentence. Vendor has and will maintain in place appropriate technical and organizational measures to protect Customer Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
3. NOVELA’S OBLIGATIONS
3.1 Novela Services. Novela will provide to Customers the Novela Services in accordance with the terms of this Agreement, which shall include presenting the Vendor Services via the Platform, introducing Vendor to Customers, scheduling meetings, tours and wedding bookings for the Customer with Vendor, facilitating signatures of the Customer Agreements, receiving payments from Customers, introducing Customers to Vendor’s Partner Services, and doing all of the above for Vendor’s Partners as well. Novela will use reasonable commercial efforts to market and promote the Vendor Services to Customers. Novela will keep Vendor reasonably informed of such efforts.
3.2 Relationship with Customers. Novela will enable Customers to schedule meetings and book Vendor Services and Vendor’s Partner Services through the Platform. Novela will, prior to reselling the Vendor Services to any prospective Customer, require each such prospective Customer to enter into a Customer Agreement with Vendor via the Platform. Each party will promptly notify the other party if it becomes aware of any breach of any Customer Agreement.
3.3 Branding. Novela will use the Vendor Marks in all materials used to advertise, market, or promote the Vendor Services in a manner acceptable to Vendor. Novela’s use of the Vendor Marks is subject to the limitations and requirements in Section 2.3.
3.4 Staffing. Novela will maintain a staff of sales and technical support personnel sufficient to meet the needs of its Customers and potential Customers. Novela will ensure that such personnel are properly trained with regard to the Vendor Services.
4. VENDOR SERVICES
4.1 Vendor Services. Vendor will provide to the Customer the Vendor Services in accordance with the terms of this Agreement and the Customer Agreement. Time is of the essence for all of the Vendor Services. Vendor will contact the Customers promptly after receiving their information from Novela, using Novela’s name as the facilitator. Vendor will keep a reasonable written record of the comments, questions and complaints it receives about the Vendor Services and will provide that record to Novela upon Novela’s request. Vendor will avoid deceptive, misleading or unethical practices that could damage the reputation of Novela.
4.2 Knowledge Sharing. Vendor will provide to Novela its form Customer Agreements, as Vendor may update from time to time. Vendor will provide Novela the Marketing Materials, as well as indicative pricing information, so that Novela may perform the Novela Services. Such indicative pricing shall be accurate and appropriate for the Customer Data and any accompanying assumptions provided by Vendor. Vendor shall provide all quotes and proposals solely directly to Novela to share with Customers via the Platform, and Vendor will not provide any quotes or proposals to Customers directly outside of the Platform, except in cases where the Platform enables Vendor to connect an existing customer relationship management platform (CRM), in which case if the Vendor elects to use an alternate CRM supported by the Platform to send quotes and proposals, that will be deemed acceptable as long as Novela is made aware of these communications via the Platform’s connection to the Vendor’s third party CRM.
4.3 Calendar Integration. Vendor, at its discretion, may provide Novela the ability to integrate its scheduling system with Vendor’s event booking calendar system to support customer acquisition on Vendor’s behalf.
4.4 Novela Trademark License. During the term, Novela hereby grants to Vendor a non-exclusive, limited, royalty-free, revocable license to use Novela’s name and any promotional materials delivered by Novela to Vendor hereunder solely as necessary to perform the Vendor Services and solely in accordance with Novela’s trademark usage guidelines accessible at novelaweddings.com/terms. Vendor shall not modify, edit or otherwise alter any promotional materials provided by Novela to Vendor hereunder in any manner without Novela’s prior written approval.
4.5 Non-circumvention. Except for the Customer Agreement facilitated by Novela, as set forth herein, Vendor agrees that it shall not circumvent Novela, directly or indirectly, by knowingly negotiating with or entering into any agreement or other arrangement (whether written or oral) with any Customer or any individual or entity that was first introduced to Vendor by Novela. This Section 4.5 shall survive for a period of one year after the expiration or termination of this Agreement.
5. FEES AND PAYMENT
5.1 Fees and Payments. Vendor’s quotes and proposals provided to Customers via the Platform (in accordance with Section 3.2) shall serve as Customers’ invoices, and Customers shall submit all payments through the Platform. Vendor shall determine its own fees, but shall charge each Customer the best available pricing (i.e., the lowest pricing that the Vendor offers to the public) for the applicable Vendor Services being purchased. Novela will retain 10% of all fees collected from Customers (excluding taxes), and will remit the remaining 90% to Vendor within ten (10) days after its receipt of payment from Customers under this Agreement. No fees will be due for Customers not originally introduced to Vendor by Novela. Novela's referral fee is based solely on the Vendor’s services.
5.2 Taxes. Novela will be responsible for payment of all taxes (other than taxes based on Vendor’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of any fees or any amounts owed to Novela under this Agreement or the delivery of the Vendor Services to Customers.
5.3 Records and Reports. Novela shall provide Vendor reports of Customer sales (or access to a dashboard of sales) on a monthly basis. At all times during the term, and for at least one (1) year after any termination of this Agreement, Novela will maintain complete and accurate records of Novela’s sales of the Vendor Services to Customers and all other data reasonably necessary for verification of Novela’s compliance with the terms of this Agreement, including amounts to be paid to Vendor hereunder. Regardless, Vendor shall maintain its own copies of signed Customer Agreements (once Novela provides such to Vendor), Marketing Materials, quotes, and proposals as Novela has no obligation to provide copies or backups of such documents.
6. WARRANTIES
6.1 Warranties by Both Parties. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement. Each party represents, warrants, and covenants that it shall comply with all applicable laws, regulations and other legal requirements, and shall at its sole expense obtain and maintain the governmental authorizations, registrations and lings required by any jurisdiction in connection with the execution or performance of this Agreement and its respective services hereunder.
6.2 Warranties Made by Vendor. Vendor represents, warrants, and covenants that it shall perform the Vendor Services in a courteous and professional manner consistent with generally accepted industry standards.
6.3 Warranties Made by Novela. Novela will not make or publish any representations, warranties, or guarantees on behalf of Vendor concerning the features, performance or functionality of the Vendor Services, other than presenting current information that has been published by Vendor (including in the Marketing Materials) or approved by Vendor in writing. Novela may make and publish representations, warranties or guarantees on its own behalf; however, Vendor shall have no obligation under such representations, warranties or guarantees.
6.4 Disclaimer. THE EXPRESS WARRANTIES IN SECTIONS 6.1, 6.2, AND 6.3 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE VENDOR SERVICES AND NOVELA SERVICES. EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NOVELA DOES NOT WARRANT THAT THE NOVELA SERVICES AND/OR PLATFORM WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE. NOVELA DOES NOT WARRANT OR COMMIT TO ANY EXPECTED FEES, RETURNS, OR PARTICULAR NUMBER OF SALES OR CUSTOMERS.
7. INDEMNIFICATION
7.1 Indemnification by Novela. Novela agrees to defend, indemnify and hold harmless Vendor from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties (including any Customer) resulting from or relating to: (i) any acts or omissions on the part of Novela in marketing or reselling the Vendor Services; (ii) any representations, warranties, guarantees, or other written or oral statements made by Novela relating to the Vendor Services other than those made in the Customer Agreement; or (iii) personal injury or death or damage to tangible property caused by the Novela’s gross negligence or willful misconduct in connection with performing work under this Agreement. The foregoing obligations are conditioned on Vendor: (a) notifying Novela promptly in writing of any such action, (b) giving Novela sole control of the defense thereof and any related settlement negotiations (provided, however that Novela shall not have any authority to enter into any settlement that materially adversely affects Vendor’s rights or obligations without Vendor’s prior written approval) and (c) cooperating and, at Novela’s request and expense, assisting in such defense.
7.2 Indemnification by Vendor. Vendor will defend at its own expense any action against Novela brought by a third party (including any Customer) resulting from or relating to: (i) Vendor’s breach of this Agreement or any Customer Agreements; (ii) the Vendor Services; or (iii) personal injury or death or damage to tangible property caused by the Vendor’s gross negligence or willful misconduct in connection with performing work under this Agreement. The foregoing obligations are conditioned on Novela: (a) notifying Vendor promptly in writing of any such action, (b) giving Vendor sole control of the defense thereof and any related settlement negotiations (provided, however that Vendor shall not have any authority to enter into any settlement that materially adversely affects Novela’s rights or obligations without Novela’s prior written approval) and (c) cooperating and, at Vendor’s request and expense, assisting in such defense.
8. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO CLAIMS FOR INDEMNIFICATION UNDER SECTION 7 OR BREACHES OF SECTION 9, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS OR LOST DATA) ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE THE VENDOR SERVICES, PLATFORM, OR NOVELA SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO CLAIMS FOR INDEMNIFICATION UNDER SECTION 7 OR BREACHES OF SECTION 9, EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY CUSTOMERS TO NOVELA FOR VENDOR SERVICES IN THE PRIOR SIX (6) MONTH PERIOD. THE EXISTENCE OF ONE (1) OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT, IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
9. CONFIDENTIALITY
9.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). Notwithstanding anything to the contrary, Customer Data shall be considered Confidential Information of Novela. Any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party will be considered Confidential Information of the Disclosing Party.
9.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by the Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
9.3 Exceptions. The Receiving Party’s obligations under Section 9.2 with respect to any Confidential Information of the Disclosing Party will not apply if such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
9.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or upon the expiration or termination of the Agreement. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section.
9.5 Confidentiality of Agreement. Neither party will disclose any terms of the Agreement to anyone other than its attorneys, accountants, investors, and other professional advisors, except (a) as required by law, (b) pursuant to a mutually agreeable press release, or (c) in connection with a contemplated transfer of such party’s business permitted by Section 11.1 (provided that any third party to whom the terms of the Agreement are to be disclosed signs a confidentiality agreement as protective as this Section 9).
10. TERM AND TERMINATION
10.1 Term. Unless earlier terminated as provided in this Agreement, the term of this Agreement will begin on the Effective Date and will conclude after a period of one (1) year. Thereafter, this Agreement will renew for successive one (1) year terms (each, a “Renewal Term”) unless either party notifies the other of its intent not to renew within the thirty (30) day period immediately prior to the applicable expiration date (“Renewal Window”). Novela may amend or modify the fees that will apply during the succeeding Renewal Term by providing notice to Vendor at least thirty (30) days before the first day of the applicable Renewal Window. Any such modified or amended fees shall apply as of the first day of such succeeding Renewal Term.
10.2 Termination for Cause. Either party may terminate this Agreement if the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after being provided with written notice thereof.
10.3 Termination upon Bankruptcy. Either party may terminate the Agreement upon written notice to the other party in the event (a) a petition or action is led or taken by or against the other party under any insolvency or bankruptcy law that is not dismissed within sixty (60) days, (b) a receiver is appointed over the other party’s assets, (c) the other party makes an assignment for the benefit of creditors or (d) the other party ceases to function as a going concern.
10.4 Effects of Termination.
(a) Payment; Licenses; Licensed Software. Upon termination or expiration of this Agreement for any reason, (i) any amounts owed to Vendor under this Agreement before such termination or expiration will continue to be payable on the same schedule; (ii) all licensed rights granted in this Agreement will immediately cease to exist, except to the extent necessary to support Customers whose Agreements survive pursuant to existing Customer Agreements; (iii) Novela shall promptly discontinue all further use of the Vendor Marks, and all further resale of the Vendor Services, except to the extent necessary to support Customers whose Agreements survive pursuant to existing Customer Agreements; and (iv) each party shall return to the other party or, at such other party’s request, destroy all copies of materials (including Marketing Materials) provided hereunder.
(b) Customer Agreements. Customer Agreements entered into by and between Vendor and Customers in accordance with this Agreement will survive the expiration or termination of this Agreement in accordance with their terms.
10.5 Survival. Sections 1, 5, 6.4, 7, 8, 9, 10.4, 10.5, and 11 will survive expiration or termination of this Agreement for any reason.
11. GENERAL PROVISIONS
11.1 Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party.
11.2 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of amounts due) on account of strikes, pandemics, epidemics, shortages, riots, insurrection, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
11.3 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the signature page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given ve (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date rejected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
11.4 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to principles of conflict of laws. The parties hereby expressly consent to exclusive personal jurisdiction and venue in the state and federal courts in New Castle County, Delaware. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.5 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.6 Severability. If any provision of the Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
11.7 Independent Contractors. Each party’s relationship to the other party is that of an independent contractor, and neither party is an agent of the other. A party will not have, and will not represent to any third party that it has, any authority to act on behalf of the other party.
11.8 Construction. The headings of Sections of the Agreement are for convenience and are not to be used in interpretation. As used in the Agreement, the word “including” means “including but not limited to.”
11.9 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
11.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of Vendor and Novela by their duly authorized representatives.
In Witness Whereof, the parties have executed this Agreement as of the Effective Date.