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Vendor Terms and Conditions

PLEASE READ THIS AGREEMENT CAREFULLY. IT IS A LEGAL AGREEMENT BETWEEN VENDOR AND KYUBU. BY USING THE SERVICES (DEFINED BELOW), THE VENDOR AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ALL AMENDMENTS MADE FROM TIME TO TIME. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT USE THE SERVICES.

THIS AGREEMENT is made between KYUBU MARKET INC. (“Kyubu”) and you, on your own behalf or on behalf of the entity whom you are authorized to represent (the “Vendor”). This Agreement establishes the terms and conditions of engagement between you and Kyubu (together the “Parties” and each a “Party”).
1.  DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement, the following words and phrases shall have the following meanings:
(a) “Intellectual Property” means all right, title, interest and benefit in and to intellectual property of every nature, whether registered or unregistered, including without limitation, all copyrights, patents, trademarks and industrial designs, trade names, brand names, proprietary information and know-how, inventions, drawings and designs, processes, prototypes, technology and marketing rights now or hereafter in force and effect anywhere in the world;
(b) “Marketing Material” means materials developed by Kyubu for purposes of marketing and promoting the Vendor and the Vendor Works, including but not limited to the Site, the Store, any photography, video, copy, print, media or other materials prepared by or at the direction of Kyubu;
(c) “Privacy Policy” means Kyubu’s privacy policy located at www.kyubumarket.com/pages/privacy-policy, as may be updated from time to time;
(d) “Purchaser” means a purchaser of a Vendor Work sold by Kyubu through the Site, the Store or other means effected by Kyubu;
(e) “Services” means the services Kyubu provides the Vendor, including but not limited to the provision of Sales, the Site, the Store, and any business, marketing, support and other services that may be provided by Kyubu from time to time;
(f) “Site” means Kyubu’s website located at www.kyubumarket.com, including all services, tools and other content and information made available on the website;
(g) “Store” means Kyubu’s storefront located at 780 East Cordova Street, Vancouver, British Columbia, Canada and elsewhere;
(h) “Vendor Account” means the Vendor’s online account with Kyubu;
(i) “Vendor Works” means any and all Works set out in the Vendor Account and described in the Inventory Schedule, as each may be supplemented or amended from time to time; and
(j) “Works” means any work, including but not limited to any and all artistic works, works of art, artwork, creations, fine art, architectural works, objects, designs, paintings, drawings, photographs, sculptures, works of artistic craftsmanship, digital files and compilations of artistic works.
2.  ENGAGEMENT
2.1 Right to Promote and Sell.  The Vendor represents and warrants that is the exclusive owner of the Vendor Works and all Intellectual Property and hereby engages and grants to Kyubu a non-exclusive, world-wide right during the Term to market, promote and display the Vendor and the Vendor Works, including by way of the Marketing Materials, and to generate commissions, sales or other dispositions of the Vendor Works (the “Sales”) in such ways determined by Kyubu in its sole discretion.   
2.2 Acceptance of Terms.  By using the Services, the Vendor agrees to be bound by the terms and conditions of this Agreement without modification. If the Vendor is not willing to be bound by all of the terms of this Agreement, the Vendor must promptly halt use of the Services.
2.3 Changes.  Kyubu may, at its sole discretion modify or replace this Agreement, in whole or in part, from time to time. If the Vendor does not agree to any modifications, the Vendor should stop use of the Services. The Vendor’s continued use of the Services now or following notice to the Vendor or posting on the Site of changes to this Agreement, will constitute binding acceptance by the Vendor of this Agreement and any modifications.
2.4 Relationship.  The Parties are independent contractors under the Agreement and nothing in this Agreement will constitute or create any partnership, joint venture, principal-agent or any other relationship apart from that expressly stated in this Agreement.
 
3. CONSENT AND RELEASE
3.1 Consent.  You, on your own behalf and on behalf of the Vendor, hereby authorize Kyubu to create and publish the Marketing Materials, including but not limited to any and all photographs and video taken of me, my name and likeness and the Vendor Works (collectively, the “Images”), for purposes of marketing and promoting the Vendor and the Vendor Works, including for use in the Marketing Materials in all print, media, online and video materials and other publications determined by Kyubu in its sole discretion.
3.2 Waiver.  You hereby waive any and all rights to review or approve of the Images and hereby release, discharge and hold harmless Kyubu, its directors, officers, consultants, employees, agents and third-parties involved in the creation or publication of the Images from any and all liability from any actions, duties, covenants, warranties, claims, costs, damages and demands of every nature or kind arising out of or in any way connected or related to the Images, the Marketing Materials or this Agreement.

4.  INTELLECTUAL PROPERTY AND OWNERSHIP
4.1 License. The Vendor hereby grants to Kyubu, and Kyubu hereby accepts, a revocable, non-transferable, worldwide, non-exclusive license during the Term to use the Vendor’s Intellectual Property in connection with this Agreement, and as is reasonably necessary for Kyubu to perform its obligations and exercise its rights under this Agreement. 
4.2 Ownership.  Each of Kyubu and the Vendor acknowledge and agree that:
(a) the Vendor Works remain the property of the Vendor until the Sale of a Vendor Work is effected, at which time title to the Vendor Work shall pass to the Purchaser;
(b) the Vendor retains any and all Intellectual Property rights in and to the Vendor Works and reserves all moral rights in the Vendor Works; and
(c) Kyubu retains all rights, title and interest to the Marketing Materials, including any and all Intellectual Property and other property rights associated with the Marketing Materials, including all updates or modifications thereto and all copies and portions thereof.  All use of the Marketing Materials and all goodwill arising with respect to such use, shall inure to the exclusive benefit of Kyubu. 
4.3 Credit to Kyubu.  The Vendor shall not use any Marketing Material unless the proprietary nature of Kyubu is clearly displayed as a credit to @kyubumarket, unless otherwise authorized by Kyubu in writing.

5.  SALES AND COMMISSION
5.1 Vendor Works on Site.  The Vendor agrees to hold the Vendor Works for Sale with Kyubu during the Term.
5.2 Vendor Works in Store.  From time to time, the Vendor and Kyubu may agree to carry Vendor Works in Store on such terms agreed by the Parties.  For such Vendor Works, Kyubu shall provide the Vendor with a completed schedule of inventory (the “Inventory Schedule”) and such Inventory Schedule shall be definitive evidence of all Vendor Works held by Kyubu.
5.3 Price of Vendor Work.  The sale price (the “Sale Price”) for any Vendor Works shall be set by the Vendor, provided that the Sale Price shall be no greater than the price of similar Works sold by the Vendor through other sales channels controlled by the Vendor, if any, and Kyubu may make any such changes to the Sale Price to be equal to such price, as may be required. 
5.4 Proceeds of Sales.  The proceeds of a Sale (the “Sale Proceeds”) of a Vendor Work sold by Kyubu under this Agreement during the Term, less any applicable taxes, shall be distributed:
(a) 60% to the Vendor (the “Vendor Proceeds”); and
(b) 40% to Kyubu.
5.5 Payment.  Within 30 days of the end of each month of the Term, Kyubu shall pay to the Vendor the sum of the Vendor Proceeds for the Vendor Works sold during such month and not returned to Kyubu by the Purchaser pursuant to Kyubu’s return policy.
5.6 Location and Control.  During the Term, the Vendor Works shall be held by either the Vendor or Kyubu and such Party holding the Vendor Works shall be deemed to have control of the Vendor Works (“Control”). 
5.7 Delivery.  The responsibility of delivery of the Vendor Works shall be as follows:
(a) by Kyubu, for Vendor Works set out in Schedule “A” in the Control of Kyubu; or
(b) by the Vendor, for Vendor Works set out in the Vendor Account in the Control of the Vendor, within such delivery times as set out in the Vendor Account, or otherwise agreed between the Parties.
5.8 Billing and Taxes.  During the Term, Kyubu hereby agrees to attend to billing and collection of all Sale Proceeds and any applicable Canadian sales taxes in connection with a Sale (the “Canadian Taxes”).  Kyubu and the Vendor hereby mutually elect to have Kyubu remit all Canadian Taxes as may be required in connection with a Sale.  The Vendor hereby indemnifies Kyubu against any and all claims and liabilities, including for greater certainty any claims for payment of taxes to any governmental authority that may result from a breach of this Agreement.  
5.9 Loss and Damages.  The Party that is in Control of the Vendor Works shall be responsible for any and all shortages, loss or damage to such Vendor Works.
5.10 Limitation of Liability.  UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, COSTS OF DELAY OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.

6. TERM AND TERMINATION
6.1 Term.  This Agreement shall be in effect until terminated in accordance with Section 5.2 (the “Term”).
6.2 Termination.  This Agreement may be terminated at any time, by either party by providing written notice to the other Party.
6.3 Effect of Termination.  Upon termination of this Agreement, all Vendor accounts with Kyubu shall be cancelled and of no further effect and Kyubu shall return all unsold Vendor Works in the Control of Kyubu to the Vendor along with any amounts payable to the Vendor under this Agreement. 
6.4 Survival.  The Vendor’s obligation to pay Kyubu a commission with respect to uncollected accounts shall survive the termination or expiry of this Agreement, but any such commission shall not become due or payable until such time as the account is actually collected, in full, by Kyubu.

7.   GENERAL
7.1 Governing Law.  This Agreement will be governed by and construed in accordance with the laws of British Columbia and the federal laws of Canada applicable in British Columbia.
7.2 Notices.  Any notice, request, demand or communication to be given hereunder may be effectively given by delivering the same at the addresses hereinafter set forth, or as otherwise directed by the receiving Party:
if to Kyubu:
Unit 1, 780 East Cordova Street
Vancouver, B.C. V6A 1M3
Email:  info@kyubumarket.com
if to the Vendor:
at such e-mail address provided to Kyubu
7.3 Entire Agreement.  This Agreement, and any Schedules attached thereto, state and comprise the entire agreement between the Parties in connection with the subject matter of this Agreement.  There are no representations, warranties, terms, conditions, undertakings or collateral agreements express or implied between the Parties other than those that are expressly set forth in this Agreement.
7.4 Waiver.  No failure or delay on the part of any Party in exercising any power or right under this Agreement will operate as a waiver of such power or right.
7.5 Currency.  Unless otherwise specified all sums of money expressed in this Agreement are in the lawful money of Canada. 
7.6 Independent Legal Advice.  The Vendor hereby acknowledges that he, she or it has been advised and has had the opportunity to obtain independent legal advice regarding this Agreement and to the extent the Vendor has declined to receive independent legal counsel, waives the right.

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