Effective Date: January 9, 2023
Get Applaud, Inc. (“Get Applaud” or “we”) provides its Services (as defined below) to you, subject to this Terms of Service agreement (“Agreement”). By accepting this Agreement or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you”, “your” or “Customer” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Service.
1. Overview.
Get Applaud Inc. is headquartered in the State of California in the United States and operates a variety of websites (“Websites”) and online marketing services and applications, including Flagship (each an “Application,” and together with the Websites and other services, the “Services”). We also provide other related services, such as real-time data analytics. Find out more about our Services at www.flagship.shop.
As a Customer of our Applications or Services, the collection, use and sharing of your personal data is subject to our Privacy Policy (which includes any documents referenced in the Privacy Policy) and any updates thereto.
This Agreement defines the terms and conditions under which you’re allowed to use the Applications, Services and any applicable additional features, and how we’ll treat your Account while you’re a Customer. We may update the terms of this Agreement from time to time in our sole discretion. If we do make any such changes, we’ll let you know by posting the updated Agreement, as applicable, to the Websites, to the Applications and/or may also send other communications. It’s important that you review the Agreement, as applicable, whenever we update them or you use the Applications or Services. If you continue to use the Applications or Services after we have posted the updated Agreement, it means that you accept and agree to the changes. If you don’t agree to this Agreement, you must immediately discontinue your use of the Services and any applicable additional features. Because our Applications and Services are evolving over time we may change or discontinue all or any part of the Applications, Services and additional features, at any time and without notice, at our sole discretion.
Flagship is a comprehensive e-commerce platform designed to facilitate the creation, management, and growth of online stores by Curators, and to streamline the process for Suppliers to list and sell their products through these stores. Our platform serves as a bridge between Curators and Suppliers, enabling a seamless partnership that benefits all parties involved.
2. Eligibility.
By accessing or using the Applications or Services in any way, clicking on a button or taking similar action to signify your affirmative acceptance of this Agreement, you hereby represent that:
You have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time at this link or through the Services; and
are eighteen (18) years old or older; and
You have the authority to enter into the Agreement personally. Except as otherwise provided herein, if you do not agree to be bound by the Agreement, you may not access or use the Applications or Services. In addition, if you have been previously prohibited from accessing the Applications or Services, you are not permitted to access our Websites or the Applications or Services.
3. Supplier Accounts.
Account Creation and Product Listing: Suppliers have the option to create an account on the Flagship platform to list and sell their products. By creating an account and listing products on Flagship, suppliers agree to comply with all terms and conditions set forth in this Agreement, including but not limited to product quality standards, pricing policies, and customer service expectations.
Integration with Third-Party Platforms: Flagship supports seamless integration with various third-party e-commerce platforms such as Shopify, and others, as well as direct integration via API. Suppliers opting to connect their existing platforms or use API integration agree to these Terms of Service and grant Flagship access to necessary backend information about their products. This includes images, descriptions, inventory levels, and pricing details required for effective listing and sales on the Flagship platform.
Consent to Access and Use of Data: By integrating their e-commerce platform with Flagship, suppliers explicitly consent to the access, retrieval, and use of product-related data by Flagship. This data will be used solely for the purpose of listing, promoting, and selling the suppliers' products on the Flagship platform, in accordance with the terms of this Agreement.
Stock Availability Policy: To maintain a seamless shopping experience, sellers are obligated to ensure accurate stock availability for all listed items. If a seller cannot fulfill an order due to stock unavailability, they are required to promptly issue a full refund to the buyer. This allows the customer to seek alternative options without undue delay. Sellers are expected to actively manage their inventories to minimize stock discrepancies and avoid cancellations.
Order Cancellation Policy: Once an order has entered the fulfillment process, sellers must obtain explicit approval from the buyer to cancel the order. If a buyer requests an order cancellation, the seller is encouraged to accommodate the request, provided it is made before the order has been dispatched.
Return and Refund Policy: Sellers are required to respond to return requests within 48 hours, providing clear instructions for the return process or resolving the buyer's concern. Failure to do so may result in automatic approval of the return request by the platform.
Service Level Agreements (SLA): To ensure a high standard of service, sellers must adhere to the following SLAs:
Stock accuracy: Regularly update inventory levels to reflect real-time availability.
Order processing: Dispatch orders within the platform's specified processing time (e.g., within 1-2 business days of order placement).
Customer communication: Respond to customer inquiries and concerns within 48 hours.
Return and refund processing: Process approved returns and issue refunds within 5 business days of receiving the returned item.
Ensuring Price Parity: To ensure our customers receive the best value, suppliers commit to price parity for their products listed on Flagship, guaranteeing that prices on our platform are not higher than those on any other sales channel. Flagship reserves the right to adjust prices on our platform to match the lowest price offered by suppliers elsewhere.
Application of Discounts: Suppliers must apply the same promotions, discounts, or special pricing to products listed on Flagship as they do on other sales channels. Flagship will adjust the listed prices on our platform to reflect these offers, ensuring our customers benefit from the best available deals.
Supplier Obligations: Suppliers are required to notify Flagship of any pricing changes, including discounts or promotions, offered on other channels. Failure to do so may lead to price adjustments on Flagship, account suspension, or other necessary actions to maintain pricing transparency.
Acknowledgment and Agreement: By listing products on Flagship, suppliers agree to these terms, including the price parity and discount application clause. Non-compliance may result in corrective measures by Flagship to uphold our commitment to pricing fairness and transparency.
4. Curator Accounts and Online Storefronts
Account Creation for Curators: Flagship enables entrepreneurs, retailers, and businesses ("Curators") to create accounts on our platform, providing the foundation to launch and operate their own online storefronts. By registering for a Curator account, you gain access to a suite of tools and services designed to facilitate the creation, customization, and management of your online store.
Storefront Customization and Management: Upon account creation, Curators will have the ability to customize their storefronts to reflect their brand identity, including but not limited to, store layout, design elements, and product categorization. Flagship provides a user-friendly dashboard for managing store operations, including inventory management, order processing, customer service, and analytics to track store performance.
Access to Supplier Products: One of the key benefits of Flagship for Curators is access to a diverse range of products from Suppliers who have partnered with Flagship. Curators can browse and select products from these Suppliers to feature in their online stores. This enables Curators to curate a unique product assortment that aligns with their brand and customer preferences without the need for inventory holding.
Product Selection and Listing: Curators are empowered to choose which Supplier products they wish to feature in their stores. Once selected, these products can be easily added to the Curator's storefront with detailed product descriptions, images, and pricing information provided by the Suppliers. Curators have the flexibility to organize and present these products in a way that maximizes customer engagement and sales potential.
Sales and Economic Terms: Curators benefit economically from each sale made through their Flagship storefront. The specific terms of the economic relationship, including the percentage of sales revenue entitled to Curators, are outlined in the "Economics of Sales" section of this Agreement. Flagship facilitates the transaction process, ensuring that Suppliers are paid for their products and Curators receive their share of the sales revenue, in accordance with the agreed-upon terms.
Compliance and Quality Assurance: Curators agree to comply with all applicable laws, regulations, and Flagship policies regarding online retail and customer interactions. Additionally, Curators are responsible for ensuring that their storefronts meet Flagship's standards for quality and customer experience. This includes accurate product representation, timely order fulfillment, and responsive customer service.
Support and Resources: Flagship is committed to supporting Curators in the success of their online stores. We provide a range of resources, including tutorials, marketing tools, and customer service support, to help Curators maximize their store's potential. Our team is available to assist with any questions or challenges that arise during the operation of your Flagship storefront.
5. Relationship between Curators and Suppliers.
Connecting Curators and Suppliers: Flagship acts as an intermediary platform that connects Curators and Suppliers in a dynamic online marketplace. Our platform enables Suppliers to list their products for sale and allows Curators to feature these products in their online stores. This partnership aims to expand the reach of Suppliers’ products while offering Curators a diverse array of items to attract and satisfy their customers.
Payment Distribution Upon Sales: When a customer purchases a product from a store powered by Flagship, the financial benefits are distributed among the Supplier, the Curator, and Flagship, according to a predefined structure that ensures fairness and transparency.
Curator Commission: Curators earn a commission on each sale, which is predefined by the Supplier at the time of listing the products on Flagship and agreeing to the partnership with the Curator. This commission is a percentage of the sale price and is meant to incentivize Curators to promote and sell products from various Suppliers on their storefronts.
Flagship Referral Fee: For facilitating the marketplace and providing the platform through which sales are made, Flagship is entitled to a referral fee from each sale. The specific amount or percentage of this referral fee will be determined by Flagship and communicated to both Curators and Suppliers through the platform’s policies.
Supplier Earnings: Suppliers earn the total amount from the sale of their products minus the commission paid to the Curator, the Flagship referral fee, and standard payment processing fees, which are typically 3% of the sale amount. This ensures that Suppliers are compensated for their products while contributing to the ecosystem that Flagship has created.
Ensuring Timely Payments: Flagship is responsible for processing transactions and ensuring that all parties receive their respective payments in a timely manner. Payments to Suppliers and Curators are facilitated through the platform, and detailed records of all transactions are maintained for transparency and accountability.
Obligations and Responsibilities:
Suppliers are required to set fair and competitive commissions for Curators to encourage the promotion and sale of their products. Suppliers must also ensure the accuracy of product listings and adhere to Flagship’s quality standards.
Curators are tasked with effectively marketing and selling the products featured in their online stores.
Flagship will oversee the operation of the marketplace, providing support and resources to both Curators and Suppliers, ensuring the platform remains a trusted environment for commerce.
Adjustments and Disputes: In the event of disputes related to payments, commissions, or fees, Flagship will intervene as a mediator to resolve issues in a manner that is fair and equitable to all parties involved. Flagship reserves the right to adjust payment terms as necessary to reflect changes in the marketplace or operational costs.
6. Proprietary Rights.
Intellectual Property Rights. We (and our licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Applications or Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, or any intellectual property rights owned by us. Our name, logo, and the product names associated with the Applications or Services are our trademarks or belong to third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Applications or Services.
Confidentiality. In your use of the Applications or Services, you may have (or have been given) access to information that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure (collectively, “Confidential Information”). Confidential Information includes items such as Customer/Brand lists or directories, messages transmitted through the Applications or Services, and the non-public aspects of the Applications or Services. Confidential Information does not include information that: (i) is in the public domain at the date of disclosure (and did not fall into the public domain as a result of your breach of this policy or any other confidentiality agreement); (ii) was rightfully in your possession before you gained access to it through the Services (and you can prove this fact by admissible, written evidence); or (iii) was rightfully received from a third party (who was in lawful possession of it) without any confidentiality or non-use restrictions. You will not use the Confidential Information other than for purposes of your authorized use of the Applications or Services. Further, you will maintain it as confidential and not disclose any Confidential Information. Nothing shall prevent you from disclosing information obtained through the Applications or Services if compelled to do so by a court of law or government agency, on the condition that you provide advance notice to us and allow us a reasonable opportunity to intervene in the proceeding to protect the confidentiality of the Confidential Information.
7. Termination.
Termination by You. You have the right to terminate your Account at any time upon thirty (30) days prior notice by sending a cancellation request to [email protected].
Termination by “Get Applaud Inc.”. At our sole discretion, we may (i) modify or discontinue the Applications or Services, or (ii) may modify, suspend or terminate your access to the Applications or Services, upon thirty (30) days prior notice to you and without liability to you or any third party. In particular, we may suspend or terminate your Account in the event of a dispute between you and another Brand, or between you and a Curator or Supplier, as applicable.
Effect of Termination. Upon termination, by you or us: (a) you will cease any further use of the Applications or Services and any information that was made available to you prior to the termination; (b) all rights granted to you under this Agreement will automatically terminate; and (c) certain data (e.g. content, submissions, etc.) may be deleted and you will have no right or claim in this respect. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement, including Sections 6-13.
Effect of Termination. Even after your right to access and use Get Applaud’s Applications or Services is terminated, these Terms will remain enforceable against you. Upon termination: (a) you will cease any further use of Get Applaud’s Applications and Services and any information that was made available to you prior to the termination; (b) all rights granted to you under these Terms will automatically terminate; and (c) certain data (e.g. content, submissions, etc.) may be deleted and you will have no right or claim in this respect. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of these Terms.
Pending Transactions. If you have any pending transactions between a Customer, Supplier, or Curator relating to a Supplier’s Product, you shall not cancel your Account until all pending transactions have completed. In the event of termination, all fees due to Get Applaud, including without limitation, any Flagship Fees or Payments up to the end of the then-current billing cycle at time of cancellation shall remain payable to Flagship No refunds for any fees will be provided for partial billing periods.
8. Third-Party Interactions.
The Services (including the Applications) may contain links to third-party websites and advertisements (collectively, “Third-Party Websites & Advertisements”). When you click on a link to a Third-Party Website or Advertisement, we will not warn you that you have left our Websites and Applications and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under our control. We provide access only as a convenience and are not responsible for any Third-Party Websites or any Third-Party Advertisements. We do not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their content, products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9. Indemnification.
Indemnification Obligations. You agree to indemnify and hold harmless Get Applaud and its officers, directors, employees, agents, affiliates, customers, creators, and talent-led brands (each, an “Indemnified Party”) from and against any losses, claims, actions, disputes, demands, costs, damages, penalties, fines and expenses, including attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from: (a) your Brand Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any applicable laws, rules or regulations through or related to the use of the Applications or Services; and/or (e) any disputes that originated between you and a Customer and another Brand, or between any two or more Customers or Brands, including but not limited to: (i) untimely, improper or otherwise incomplete fulfillment of any orders; (ii) defective or incorrectly delivered products; (iii) a Brand or Supplier’s customary internal standards regarding fulfillment; or (iv) your access to or use of the Services violating, infringing or misappropriating the complaining party’s intellectual property, privacy or other rights, or otherwise violating applicable law. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services. You agree that the provisions in this Section will survive any termination of your Account, this Agreement, or your access to the Applications or Services.
Notice Requirements. Get Applaud will: (1) promptly give you written notice of the Claim; (2) give you sole control of the defense and settlement of the Claim (except that you may not settle any Claim unless it unconditionally releases Get Applaud of all liability); and (3) give you all reasonable assistance in connection with such Claim.
10. Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. YOU ACKNOWLEDGE THAT THE SERVICES (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY US IN CONNECTION WITH THE SERVICES) ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, TRUTHFULNESS, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH OUR SERVICES, OR THE SERVICES, TEXT, GRAPHICS, OR LINKS.
WE DO NOT WARRANT THAT THE SERVICES WILL OPERATE ON AN UNINTERRUPTED, SECURE, BUG-FREE, OR ERROR-FREE BASIS OR THAT THE SERVICES ARE FREE OF ANY FAULTS OR DEFECTS OR COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.
11. Limitation of Liability.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHER LEGAL THEORY) SHALL GET APPLAUD BE LIABLE TO YOU OR ANY THIRD PARTY FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR DATA BREACH, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER OR NOT GET APPLAUD HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; OR (II) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES (INCLUDING ATTORNEYS’ FEES) IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWO (2) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CLIENT AND YOU.
12. Notice to U.S. Government End Users.
The software, Applications, Website and Services, including all documentation, are “Commercial Items”, as that term is defined at 48 C.F.R. § 2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation”. The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users: (i) only as Commercial Items; (ii) with the same rights as all other end users; and (iii) according to this Agreement.
Published and unpublished rights are reserved under the copyright laws of the United States. The copyright holder is Get Applaud Inc., 2301 Bay Street, San Francisco, CA 94123.
13. General.
Publicity. Each party will have the right to publicly announce the existence of the business relationship between the parties. During the term of your use of our Applications or Services, we have a non-exclusive, non-sublicensable (except to our service providers), worldwide, royalty-free right to use your name, trademarks, image, likeness, logos and branding (collectively, “Brand Marks”) in connection with our Services and marketing materials, in perpetuity, including in connection with our social media accounts and online and print sales, marketing and advertising activities. For the avoidance of doubt, none of these usage rights shall extend to brands (Curator or Supplier) using Flagship’s Service or Site unless separately authorized by you.
No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Flagship or any third-party provider as a result of this Agreement or use of the Applications or Services.
No Third-Party Beneficiaries. Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever.
Governing Law. This Agreement, and all matters arising from, related to, or connected with it, is governed by the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. Unless otherwise elected by Flagship in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.
Severability. Except as otherwise provided herein, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
Electronic Communications. For contractual purposes, you: (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Entire Agreement. This Agreement is the final, complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings, discussions, or other communications between the parties, oral or written, with respect to such subject matter.
Assignment. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Flagship’s prior written consent, and any attempt by you to do so, without such consent, will be void. Flagship may freely assign this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Waiver of Rights. Failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. The waiver of any such right or provision will be effective only if in writing and signed by Flagship’s duly authorized representative. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
Interpretation. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect their interpretation. For purposes of this Agreement, the words and phrases “include”, “includes”, “including”, and “such as” are deemed to be followed by the words “without limitation”.
Force Majeure. Neither party will be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars, disease, or insurrections.