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By registering to sell on the AMMA’S CLOSET, LLC Marketplace and any related websites and applications owned or operated by or on behalf of AMMA’S CLOSET, LLC (collectively, the «Websites»), you as an individual, or the company on behalf of which you are registering, (referred to herein as «Seller») agree to be bound by these AMMA’S CLOSET, LLC Marketplace Terms and Conditions (collectively, with any Attachments or Exhibits, the «Agreement»), which are by and between AMMA’S CLOSET, LLC(together with its affiliates, «AMMA’S CLOSET, LLC») and Seller (each, a «Party» and collectively, the «Parties»).This Agreement is effective as of the date Seller registers for the Websites via the Portal or otherwise accepts the Agreement (the «Effective Date»).Capitalized terms not defined in this Agreement will have the meanings given to them in Appendix A.
I) AMMA’S CLOSET, LLC’S RESPONSIBILITIES.
A. Websites Hosting and Maintenance.
AMMA’S CLOSET, LLC will provide Seller with access to the Websites as a platform for Seller to post Merchandise Listings and facilitate the sale of Seller’s Merchandise to Users. AMMA’S CLOSET, LLC will be responsible for all operating functions of the Websites. AMMA’S CLOSET, LLC may, in its sole discretion, (i) ask Users to rate and/or provide comments regarding Merchandise and/or Seller’s performance, using any metrics determined by AMMA’S CLOSET, LLC in its sole discretion, and (ii) post any resulting ratings and/or comments on the Websites for public display.
B. User Orders and Payment
AMMA’S CLOSET, LLC will process User Orders (as defined in Section II.C.1) and collect all amounts due from Users for Merchandise ordered from Seller through the Websites. Within thirty (30) days thereafter, AMMA’S CLOSET, LLC will remit such amounts, less any amounts owed to AMMA’S CLOSET, LLC by Seller, by electronic funds transfer to the bank account identified by Seller in the Portal. Seller hereby appoints AMMA’S CLOSET, LLC as an agent of Seller for the sole and express purpose of receiving payments from Users for Seller’s Merchandise sold on the Websites. Seller acknowledges that, as between Seller and a User who purchases Merchandise from Seller, AMMA’S CLOSET, LLC’s receipt of funds from the User is deemed the receipt of funds by Seller.
II) SELLER’S RESPONSIBILITIES.
A. Enrollment; Account Activation.
Seller will provide the information requested on the Portal during Account activation, and agrees to update such information promptly. Seller will not use or incorporate any AMMA’S CLOSET, LLC Mark, in whole or in part, in Seller’s account name or any other User-facing identification. Seller agrees to secure the password used to access its Account and not to disclose it to any third party (other than any authorized third-party service providers to Seller). Seller acknowledges and agrees to be strictly liable for all uses or actions occurring through the Seller’s Account.
B. Merchandise Listings.
Seller will create Merchandise Listings via the Portal for all Merchandise it intends to sell on the Websites. All Merchandise Listings will comply with the any and all specifications and policies posted in the Portal, and such Merchandise Listings will not use or incorporate any AMMA’S CLOSET, LLC Marks. Seller is responsible for promptly updating its Merchandise Listing(s) to ensure the Merchandise Listing and inventories are at all times accurate. Seller will not list any Merchandise it does not currently have in stock. Seller acknowledges that failure to abide by the terms of this Agreement may subject Seller to penalties and legal liability, and that AMMA’S CLOSET, LLC may reject, remove or censor any Merchandise Listing for any reason, in AMMA’S CLOSET, LLC’s sole discretion.
1. Merchandise Pricing. Seller is responsible to establish prices for its Merchandise. Seller will enter pricing via the Portal, unless another method is approved in writing by AMMA’S CLOSET, LLC.
a. Most Favorable, Best Pricing or Equivalent Pricing. Seller will maintain parity between the Merchandise and identical merchandise offered through Seller’s other sales distribution channels, including Seller’s own website(s) or any third-party website(s). For avoidance of doubt, the term ‘parity’ as used herein means that sales prices, product quality (including quality assurances), and shipping and handling charges associated with a Merchandise Listing (including any ‘low price’ guarantees, rebates, free or discounted shipping and handling, or other benefits) are equivalent to those associated with identical Merchandise offered by Seller on the Websites.
b. Seller Pricing Errors. If Seller uploads or otherwise provides incorrect pricing information to a Merchandise Listing (a «Seller Pricing Error»), AMMA’S CLOSET, LLC may, at Seller’s expense, take any commercially reasonable action necessary to avoid and/or repair harm to AMMA’S CLOSET, LLC due to the Seller Pricing Error.. Such action may include requiring Seller to honor all Merchandise purchases occurring due to Seller Pricing Errors and compensating Users for any inconvenience caused by such errors. Seller will also reimburse AMMA’S CLOSET, LLC for all costs AMMA’S CLOSET, LLC incurs directly as a result of Seller Pricing Errors.
2. Prohibited Merchandise. Unless otherwise expressly permitted in writing by AMMA’S CLOSET, LLC, Seller will not promote, offer for sale, or provide AMMA’S CLOSET, LLC with Merchandise Listings that (a) contain any Prohibited Merchandise, (b) promote or engage in any deceptive trade practice (including spoofing, slamming, cramming, phishing, attempting to scam or defraud a User into surrendering private and/or personal information); or (c) promote or engage in any other illegal activity.
3. Permits and Licenses; Taxes. Seller will, at its own expense, obtain all permits and licenses required to operate its business in accordance with Applicable Law, and will pay and discharge all applicable taxes and assessments which may be due for selling or offering of its Merchandise for sale on or through the Websites. It is Seller’s responsibility to determine the states in which it has an obligation to collect and remit state and local sales and use taxes («Taxes»). Seller will promptly notify AMMA’S CLOSET, LLC of the states for which AMMA’S CLOSET, LLC should collect Taxes by affirmatively selecting the applicable states in the Seller’s business account profile in the Portal.. AMMA’S CLOSET, LLC will pay over the Taxes collected from the online purchaser directly to the Seller and Seller will be solely responsible for remitting the tax to the applicable taxing jurisdiction. If a taxing authority requires AMMA’S CLOSET, LLC to pay any of Seller’s taxes, Seller will promptly reimburse AMMA’S CLOSET, LLC for the amounts paid. Seller acknowledges and agrees that tax-related data may be provided through AMMA’S CLOSET, LLC’s third-party service provider(s) («Providers»).While Providers will use reasonable efforts to ensure that the tax data is current and accurate, Seller acknowledges and agrees that AMMA’S CLOSET, LLC and its Providers do not provide tax advice, and that Seller is solely responsible for determining the applicability and accuracy of any tax data. As a condition of receiving the tax data, Seller agrees to fully and forever waive any Liabilities against the AMMA’S CLOSET, LLC Parties and the Provider Parties arising from Seller’s use of and reliance on such tax data and further agrees to defend, indemnify and hold the AMMA’S CLOSET, LLC Parties and the Provider Parties harmless from Liabilities arising from such use or reliance.
C. Shipping. Seller is responsible for all aspects of shipping, including providing adequate packaging, tagging, labeling and packing of the Merchandise in compliance with the Seller Specifications and Applicable Law.
1. Process. When Seller receives notice of an order from a User (a «User Order») at the e-mail address specified by Seller in the Portal, Seller will process and fulfill the User Order in compliance with the Seller Shipping and Delivery Policy, and will make the Merchandise requested in a User Order («Requested Merchandise») available for pick up by a common carrier to deliver to the applicable User. Seller will not substitute any item(s) for the Requested Merchandise. Title to and risk of loss of and/or damage to the Requested Merchandise will remain with Seller until delivery to the User. AMMA’S CLOSET, LLC will not have title to, or deemed the legal owner of, any Merchandise at any time under the terms of this Agreement. Seller may not include any marketing, promotional materials, or any other solicitations with the Requested Merchandise shipped to Users.
2. Overdue Orders. AMMA’S CLOSET, LLC may cancel any User Order that fails for any reason to ship within the applicable shipping period indicated in the Seller Specifications, and AMMA’S CLOSET, LLC will have no duty to compensate Seller for any such cancelled orders. It is Seller’s responsibility to monitor all orders and ensure all shipments are made within the timeframes indicated in the Seller Specifications.
3. Delivery Errors, Non-conformities. Seller is responsible for any non-delivery, delivery error, mistake, theft or act in connection with the fulfillment and delivery of its Merchandise, except to the extent caused by AMMA’S CLOSET, LLC’s failure to properly process a User’s address verification in the course of the purchase of the Merchandise.
4. Additional Delivery Services; With the written consent of AMMA’S CLOSET, LLC, Seller may provide more extensive shipping services, such as delivery within the home or User premises, and/or installation services for Merchandise sold pursuant to this Agreement.In such case, Seller (a) will maintain general liability insurance, vehicle insurance, and worker’s compensation insurance in such amounts set forth in the Marketplace Vendor Guide and (b) will not permit any of its Personnel or subcontractors to enter the premises or residences of Users until they have passed the drug testing and background check requirements specified in the Marketplace Vendor Guide.
D. User Service Issues. Seller will resolve all User service issues arising from, or in connection with Seller’s promotion, sale, order fulfillment and/or delivery of Merchandise. AMMA’S CLOSET, LLC will direct Users who contact it with service issues related to Merchandise sold pursuant to this Agreement to contact Seller via the contact information Seller has provided in the Portal. If Seller fails to respond to User service issues, or requests from AMMA’S CLOSET, LLC related to same, AMMA’S CLOSET, LLC may take any actions necessary to ensure compliance, up to and including suspending Seller’s access to their Account. In the event that AMMA’S CLOSET, LLC believes in its sole discretion that a transaction represents fraudulent activity, AMMA’S CLOSET, LLC may, but is not obligated to, prohibit the transaction. AMMA’S CLOSET, LLC will not be liable to Seller if any such action results in or prevents a User from completing an order or causes a User to cancel an order.
E. Chargebacks. If AMMA’S CLOSET, LLC notifies Seller of a User chargeback or chargebacks received due to non-delivery, or other dispute related to Seller’s transactions, Seller must present AMMA’S CLOSET, LLC with all information requested in the chargeback notification within seven (7) business days of receiving notice. If Seller fails to comply with AMMA’S CLOSET, LLC’s request, Seller will reimburse AMMA’S CLOSET, LLC for the User chargeback(s) in accordance with the settlement and payment terms herein. Notwithstanding the other provisions of this paragraph, Seller will not be responsible for chargebacks due to (a) theft and/or unauthorized use of a third party’s credit card information for which AMMA’S CLOSET, LLC is responsible (except to the extent such theft and/or unauthorized use is attributable to Seller), and (b) non-delivery due to AMMA’S CLOSET, LLC’s failure to send the order information to Seller.
F. Seller Marketing; Restrictions; Prohibition on use of User Information. Seller (or any of its affiliates or related parties) may not directly or indirectly disclose or use any User information or other transaction information, except as necessary to fulfill its fulfillment and customer service obligations under this Agreement. Seller may not use any User information for any of its own marketing or promotional activities. To the extent Seller obtains User information outside of its relationship with AMMA’S CLOSET, LLC or the Websites, the terms of this section will not prevent Sellers from using such User information, provided that Seller may not explicitly target Users on the basis of their purchases or presence on the Websites.
G. Refunds; Returned Merchandise. Seller will submit a return policy (the «Seller Return Policy») using the form provided on the Portal. The Seller Return Policy must (i) apply to all Merchandise, and (ii) outline the process for Users to return the Merchandise directly to Seller. Seller agrees to honor all User returns in accordance with the Seller Return Policy published at the time of the User’s purchase of Merchandise.
H. Recalled Merchandise; Defective Merchandise. Seller will immediately notify AMMA’S CLOSET, LLC of any recalls affecting the Merchandise it has listed on AMMA’S CLOSET, LLC Marketplace. Notwithstanding the foregoing Seller is responsible for all defective or recalled Merchandise, including any costs associated with recalls of its Merchandise, all liability related to its Merchandise (regardless of whether such Merchandise is defective), and will bear all costs associated in notifying Users and handling such recalls of its Merchandise.
III) FEES AND COMMISSIONS.
A. Monthly Subscription Fee. AMMA’S CLOSET, LLC may charge Seller’s credit card on the first business day of each calendar month in the amount of the current Monthly Subscription Fee, as specified in the Portal and subject to change. .Any revised Monthly Subscription Fee will be effective as of the date posted. Seller agrees that failure to pay its Monthly Subscription Fee may result in a breach of this Agreement, removal of Merchandise Listings and/or suspension of access to the Portal.
B. Commissions. Seller will pay commissions to AMMA’S CLOSET, LLC according to the «Commission Rate Schedule» available in the Portal, which is subject to change. Any revised Commission rates are effective as of the date posted.
C. Right of Recoupment and Set-off. AMMA’S CLOSET, LLC and Seller acknowledge and agree that AMMA’S CLOSET, LLC has the right to recoup or set-off any payments owed to Seller by the amount of any Monthly Subscription Fees, commission payments, Seller obligations owed according to the defense and indemnity terms herein, and any other monetary obligations owing by Seller to AMMA’S CLOSET, LLC. Any remaining outstanding funds due to AMMA’S CLOSET, LLC after recoupment or set-off will be paid by Seller promptly upon demand by AMMA’S CLOSET, LLC. AMMA’S CLOSET, LLC may obtain reimbursement of any amounts owed by Seller to AMMA’S CLOSET, LLC by deducting from future payments owed to Seller, reversing any credits to Seller’s account, charging Seller’s credit card, or seeking such reimbursement from Seller by any other lawful means. Seller hereby authorizes AMMA’S CLOSET, LLC to use any or all of the foregoing methods to seek reimbursement, including the debiting of Seller credit card or bank account.
IV) INTELLECTUAL PROPERTY.
A. Grant of License by AMMA’S CLOSET, LLC. AMMA’S CLOSET, LLC hereby grants to Seller a non-exclusive, revocable, non-transferable license to promote and sell Merchandise on or through the Websites to Users, subject to the terms of this Agreement.
B. Grant of License by Seller. Seller hereby grants to AMMA’S CLOSET, LLC a royalty-free, non-exclusive, irrevocable, perpetual, worldwide right to use and to reproduce, modify, display, distribute, perform, re-format, create derivative works of or otherwise commercially or non-commercially exploit in any manner the Seller Content and Merchandise Listings with the right to sublicense such rights through multiple tiers; provided however that AMMA’S CLOSET, LLC will not alter any Seller Marks from the forms provided by Seller except to the extent necessary for presentation, so long as the relative proportions of the marks remain the same; provided further than nothing in this Agreement will restrict AMMA’S CLOSET, LLC’s right to use the Seller Content to the extent such use is allowable without a license from Seller under Applicable Law.
C. Intellectual Property Rights. All right, title and interest in and to the Websites, and all data collected or stored in connection with the Websites and any other AMMA’S CLOSET, LLC affiliates’ websites and any other service or website associated with the foregoing, including mobile sites or microsites, and all IP Rights associated with any of the foregoing, will at all times remain the exclusive property of AMMA’S CLOSET, LLC, and except as expressly provided herein, nothing will be construed as conferring on Seller any license to AMMA’S CLOSET, LLC’s IP Rights, whether by estoppel, implication or otherwise. If Seller is deemed to have any ownership interest or rights in any of the foregoing, or any part thereof, then Seller will assign, and Seller does hereby assign, all of such ownership interest and rights to AMMA’S CLOSET, LLC, including all Seller IP Rights therein. All rights not expressly granted herein are reserved to AMMA’S CLOSET, LLC.
D. Ownership of Content. AMMA’S CLOSET, LLC and Seller each agree and acknowledge that, as between AMMA’S CLOSET, LLC and Seller, Seller owns all Seller Content and Seller Marks, subject to the License granted herein.
V) TERM AND TERMINATION.
A. Term. The term of this Agreement will commence on the Effective Date, and will continue in effect until such time as revised by AMMA’S CLOSET, LLC, or terminated by either Party in accordance with the notice and termination requirements set forth below (the «Term»).
B. Termination. Seller may terminate this Agreement at any time upon two (2) business days’ notice to AMMA’S CLOSET, LLC, in which case Seller will process and fulfill all open orders until the termination is effective. AMMA’S CLOSET, LLC may terminate this Agreement (i) at any time upon notice to Seller; or (ii) if AMMA’S CLOSET, LLC determines in its discretion that Seller has breached any term of this Agreement, immediately, including the right to cancel all open User orders for the Merchandise, and to remove all of Seller’s Merchandise Listings from the Websites.
C. Survival. Any termination of this Agreement will be without prejudice to the rights of either Party against the other in respect of any antecedent claim or breach of any of the provisions of this Agreement. Any obligations of the Parties relating to limitations on liability, confidentiality and indemnification, as well as any other obligations under this Agreement that by their nature are intended to survive, including any payment or User services obligation in connection with the sale of Merchandise hereunder, will survive termination of this Agreement.
VI) REPRESENTATIONS AND WARRANTIES.
A. Mutual. Each Party represents and warrants that: it has the authority to enter into the Agreement and to perform the acts required of it; and the execution of this Agreement by each Party, and the performance by such Party of its obligations and duties, does not and will not violate any other agreement to which such Party is otherwise bound.
B. Seller. Seller further represents and warrants that:
- The Seller Listings and all information and Seller Content provided to AMMA’S CLOSET, LLC is accurate, complete, current, and is not misleading or deceptive in any manner;
- The publication, reproduction, display, modification, distribution or transmission of Seller Content or a Merchandise Listing does and will not (a) infringe, misuse, dilute, misappropriate, or otherwise violate any intellectual property rights of third parties, including copyright, patent, trademark, trade secret, domain name, right of publicity, or confidentiality or other proprietary rights (b) contain defamatory or discriminatory content, (c) constitute an invasion of a party’s rights of privacy or publicity; and/or (d) reflect unfavorably on AMMA’S CLOSET, LLC, the Websites and/or other Sellers on the Websites;
- Seller will at all times fully comply with Applicable Law, including applicable privacy laws;
- Seller will include in Merchandise Listings all disclosures associated with the Merchandise as required by Applicable Law;
- All Merchandise sold pursuant to this Agreement is not subject to any health, safety or product quality recall;
- Seller will perform all of its obligations hereunder in a professional and commercially reasonable manner, in accordance with generally accepted industry standards;
- Seller will maintain at a minimum such product liability insurance coverage limits, general liability, vehicle, and worker’s compensation coverage limits as required by Applicable Law to operate its business;
- All information or data uploaded or transmitted by or on behalf of Seller to the Portal, Websites, or any other AMMA’S CLOSET, LLC website, application, or system, or to a User is free from any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Portal, Websites, any other AMMA’S CLOSET, LLC website, application, or system. Seller will not use the Websites to violate the security of, or gain unauthorized access to, any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes to use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Websites, collect any information about other Users (including usernames and/or email addresses); or to reformat or frame any portion of the Websites), or use the Websites and/or any other Seller Content, intentionally or unintentionally, to violate any Applicable Law.
VII) DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AMMA’S CLOSET, LLC MAKES NO WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED WITH REGARD TO THE WEBSITES, ANY SERVICES, AND/OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH ANY LINKS THEREON, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.THE WEBSITES ARE PROVIDED BY AMMA’S CLOSET, LLC ON AN “AS IS” AND «AS AVAILABLE» BASIS AND SELLER’S USE OF THE WEBSITE IS SOLELY AT SELLER’S OWN RISK. AMMA’S CLOSET, LLC DOES NOT WARRANT THAT SELLER’S USE OF THE WEBSITES WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, NOR DOES AMMA’S CLOSET, LLC MAKE ANY WARRANTY OR GUARANTEE WITH REGARD TO RESULTS THAT MAY BE OBTAINED BY USE OF THE WEBSITES, OR THE SALE OF ANY MERCHANDISE ITEMS BY SELLER TO USERS THEREON, OR ANY SERVICES PROVIDED BY AMMA’S CLOSET, LLC TO SELLER IN CONNECTION THEREWITH, INCLUDING ANY WARRANTY WITH RESPECT TO ANY MERCHANDISE LISTING OR ANY RESULTS SELLER MAY OBTAIN UNDER THIS AGREEMENT.THE FUNCTIONALITY PROVIDED BY THE WEBSITES OR AMMA’S CLOSET, LLC, OR ITS DESIGNEES’ SERVERS IS NOT AN ARCHIVE; SELLER IS SOLELY RESPONSIBLE FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ALL INFORMATION, INCLUDING SELLER CONTENT PROVIDED TO AMMA’S CLOSET, LLC.
VIII) LIMITATION OF LIABILITY.
IN NO EVENT WILL AMMA’S CLOSET, LLC BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS), EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AMMA’S CLOSET, LLC’S LIABILITY UNDER THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY) BE GREATER THAN THE LESSER OF (I) $1000 US DOLLARS OR (II) THE TOTAL FEES PAID BY SELLER TO AMMA’S CLOSET, LLC IN THE THIRTY (30) DAYS PRIOR TO THE DATE ON WHICH ANY SUCH CLAIM AROSE.
IX) DEFENSE AND INDEMNIFICATION.
A. Obligation. Seller will defend, and indemnify and hold harmless the AMMA’S CLOSET, LLC Parties from and against all third-party Liabilities, whether actual or alleged (even though such allegations may be false, fraudulent or groundless), arising out of or relating to any of the following (collectively, the «Claims»):
- Infringement, misuse, dilution, misappropriation, or other violation of any intellectual property rights of third parties, including copyright, patent, trademark, trade secret, domain name, right of publicity, or confidentiality or other proprietary rights;
- Death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any latent or patent defect in Merchandise, including improper manufacture, construction, assembly, installation, repair, display, packaging, service or design of Merchandise, failure of Merchandise to comply with any specification or samples or with any express or implied warranties of Seller, or any claim of strict liability in tort relating to Merchandise;
- Any violation by Seller (or its affiliates, or their respective Personnel of each of them) in the manufacture, construction, assembly, installation, repair, display, packaging, possession, service, design, use, delivery or sale of Merchandise («Production or Sale») of any Applicable Law of the United States, its territories or any other country in which the Production or Sale of Merchandise took place;
- The publication of Seller Content and product information Seller supplies to AMMA’S CLOSET, LLC to display in Merchandise Listings;
- The packaging, tagging, labeling, packing, shipping, delivery and invoicing of Merchandise;
- Failure to warn or to provide adequate warnings or instructions in the use, assembly, service or installation of Merchandise;
- The packaging, labeling or advertising claims made by Seller;
- The display, assembly or installation of Merchandise, (ix) the assertion by a third party of a security interest, right of repletion, or other legal interest created by a factoring or other credit arrangement in any amount due Seller under a vendor agreement;
- A breach of any of the Seller’s representations and warranties contained herein;
- Taxes or the collection, payment or failure to collect or pay Taxes.
Notwithstanding the provisions described above, Seller will not be liable for damage to third parties to the extent such damage was solely and approximately caused by the negligence or willful misconduct of any Indemnified Party.