ShoppingStock Seller Agreement
This ShoppingStock Seller Agreement ("Agreement") is made by and between ShoppingStock Inc., with its principal offices located at 97-14 Northern Blvd, Corona, NY 11368, and its subsidiaries and affiliates (collectively "ShoppingStock"), and the seller ("Seller"), with a principal place of business as provided by Seller in connection with the online signup process related to this Agreement.
By using the ShoppingStock Marketplace (defined below), Seller agrees to be bound by this Agreement. Seller acknowledges that Seller been provided an opportunity to review the terms and conditions of this Agreement.
The following definitions apply to this Agreement:
"ShoppingStock Guidelines" has the meaning set forth in Section 4(i).
"ShoppingStock Marketplace" means the service that allows sellers to list products and services for sale directly on or through the ShoppingStock website or through a ShoppingStock application for a mobile device.
"ShoppingStock Services" means, collectively, the ShoppingStock Marketplace, the ShoppingStock website and any ShoppingStock application for a mobile device.
"ShoppingStock Seller Dashboard" means a system integrated into the ShoppingStock Services that allows sellers to communicate and process transactions with customers and that allows ShoppingStock to communicate with sellers.
Other capitalized terms will have the meanings as set forth below in the Agreement.
2. Products and Product Listings
- The term "Product(s)" means all of the products or services offered, sold or provided by Seller in the ShoppingStock Marketplace using the ShoppingStock platform. ShoppingStock will determine which Products Seller will be allowed to sell in the ShoppingStock Marketplace.
- Seller will provide accurate and complete Product Data for all Products, and ensure that any such Product Data is promptly updated so that such information remains at all times accurate and complete. Seller will ensure that the Products and Product Data complies with all applicable laws and does not contain any fraudulent, misleading, defamatory or obscene materials. "Product Data" means, with respect to Products, the following: product description, brand or source, shipping origination, model, weight, in-stock or availability status, dimensions and other shipping specifications, images, shipping and handling information, warranties, disclaimers, returns and exchange policies, warnings, notices, labels, and any other Product-related information reasonably requested by ShoppingStock. Notwithstanding anything to the contrary in this Agreement, the Product Data in the applicable Product listing shall meet all the requirements of this Agreement, including the minimum warranty period.
- Seller will be the seller of the Products, and will be identified as such, in the ShoppingStock Marketplace. ShoppingStock and Seller will work together to include the Product listings in the ShoppingStock Marketplace. ShoppingStock, may at its discretion, conduct merchandising, marketing, and promotion of the Products, including providing a mechanism for customers to publicly review and rate Products.
- Seller will clearly indicate the amount of shipping and handling charges for Products in the Product listing. The amount of such charges will follow industry standards and ShoppingStock Guidelines.
3. Payments/Transaction Fees/Referral Fees
- All customer payments for Products ("Payments") will be remitted to ShoppingStock through ShoppingStock's authorized payment gateway ("ShoppingStock Payment System"). ShoppingStock will assume all risk of credit card fraud (i.e., fraudulent purchase arising from the theft or unauthorized use of a third party's credit card information) occurring in connection with any Product transactions through the ShoppingStock Services.
- ShoppingStock will remit all Payments to Seller, using the Seller bank routing number provided by Seller within 7 days of the close of payment period during which that Payment cleared through the ShoppingStock Payment System. Each month is divided into two payment periods: one that closes on the 15th of the month and one the closes the last day of the month. ShoppingStock shall have the right to deduct from such Payments, as a referral fee to ShoppingStock, an amount equal to 15% of the total sale amount of each Product transaction processed through the ShoppingStock Marketplace ("Referral Fee"). ShoppingStock, in its discretion, may deduct a lesser Referral Fee for certain categories of Product, as may be identified by ShoppingStock in the ShoppingStock Guidelines. For the purposes of calculating the Referral Fee, such total sale amount shall include shipping and handling charges, but shall exclude taxes and duties assessed in connection with such transactions. Seller may not be required to pay a Referral Fee to ShoppingStock under limited circumstances, as may be detailed by ShoppingStock Guidelines. In addition to the Referral Fee, ShoppingStock reserves the right to deduct from the remittance of Payments to Seller under Section 3.b any amounts needed (i) to pay to customers any unpaid refunds that are due by Seller to customers under Sections 5 or 6 but not timely paid by Seller, and in such case ShoppingStock shall have the right to use such deducted amounts to pay such refunds on Seller's behalf, and/or (ii) to cover any other liability that Seller may have to ShoppingStock under this Agreement, and ShoppingStock shall have the right to use such deducted amounts to offset any such liability, including but not limited to chargebacks.
- If based on unusual events or circumstances involving the Seller or its Products (e.g., epidemic defects) ShoppingStock reasonably anticipates the need to make any such refunds to customers on Seller's behalf or to offset liability owed to ShoppingStock hereunder, ShoppingStock shall have the right to deduct from such remittance and to hold in reserve amounts reasonably anticipated by ShoppingStock to cover such refunds and liability.
- As between the parties, Seller will be responsible for all sales, goods and services, use, excise, import, export, value added and other taxes and duties assessed, incurred or required to be collected or paid in connection with any sale of Products by Seller through the ShoppingStock Marketplace and the payment of all such taxes and duties to the relevant taxing authority. ShoppingStock is not obligated to determine whether any taxes or duties apply, nor is ShoppingStock responsible for the reporting, collection or remittance of any taxes from Product order transactions, except to the extent ShoppingStock expressly agrees to collect taxes or other transaction-based charges in connection with a collection service made available by ShoppingStock and used by Seller. However, if a taxing authority requires ShoppingStock to pay any taxes assessed, incurred or required to be collected or paid in connection with any sale of Products by Seller through the ShoppingStock Marketplace for which Seller is responsible under this Agreement, Seller will promptly reimburse ShoppingStock for the amounts paid. Each party will be responsible for paying all applicable taxes based on any income or revenue received by it as a result of any transactions covered by this Agreement.
- ShoppingStock has not provided Seller with any legal advice in general or tax advice in particular in connection with this Agreement. Seller has sought its own tax advice from qualified tax and financial advisors regarding the tax implications of this Agreement and the transactions contemplated hereunder.
4. Order Processing/Fulfillment/Shipping
- Seller will process Product orders through ShoppingStock Seller Dashboard and ship all customer orders within the lead-time indicated by Seller through ShoppingStock Marketplace. Seller will keep all Product stock quantity information up to date via the ShoppingStock Seller Dashboard at all times. Seller will be solely responsible for, and bears all risk and liability for, sourcing, storing, selling, fulfilling and delivering Products to customers.
- Seller will deliver Products to the customers and will ensure that all such Products are shipped without any undue delay or damage.
- Seller will ensure that Products are packed for safe transit across U.S. and roadworthy for transit using general truckers, including but not limited to ensuring that original manufacturer packaging is in good condition and intact and replacing or repairing any cracked or broken foam pieces. For any Products that are deemed fragile and shipped through carriers that use manual and automated distribution systems, such as UPS, Seller will use an effective method for protecting fragile items, such as double-boxing or over-boxing.
- For all Products that ship, Seller will be required to promptly enter proof of shipment and tracking information in ShoppingStock Seller Dashboard.
- Seller will be responsible for replacing any Product that exhibits any manufacturing defect or is otherwise damaged during transit. Seller will also be responsible for any non-conformity or defect in, or, if applicable, any public or private recall of, any Products, including all costs and expenses associated with notices, inspections, replacements and shipping. Seller will notify ShoppingStock promptly as soon as Seller has knowledge of any applicable public or private recall of Products.
- Seller will not have access to customers' e-mail addresses for transactions processed in the ShoppingStock Marketplace through ShoppingStock Seller Dashboard. If, however, Seller obtains the e-mail addresses for customers in connection with any transaction initiated through the ShoppingStock Marketplace, Seller agrees that it will not add such e-mail addresses to any of Seller's e-mail lists or otherwise use such e-mail addresses or provide such e-mail addresses to any third parties.
- Seller shall include (i) in each Product shipment (A) the packing slip generated by the ShoppingStock Seller Dashboard for such shipment and (B) a ShoppingStock insert in a form approved by ShoppingStock, and (ii) on the outside of the packaging for each such shipment a "ShoppingStock Marketplace" sticker in a form approved by ShoppingStock.
- Seller agrees not to include into, on or with any Product shipment or packaging any inserts, flyers, marketing collateral or other materials or information which may redirect any customers or prospective customers from the ShoppingStock Marketplace into any other sales channel, and Seller will not use the ShoppingStock Marketplace for any purpose other than the offering for sale of Products as contemplated in this Agreement.
- Seller agrees to comply at all times with "ShoppingStock Guidelines," meaning the policies or guidelines for use by sellers of ShoppingStock Marketplace, as may be published from time to time by ShoppingStock through the ShoppingStock Seller Dashboard or otherwise communicated in writing by ShoppingStock to sellers. ShoppingStock Guidelines specifically includes, but are not limited to, guidelines available at http://shoppingstock.com/sell , and any other written guidance made available to sellers for providing Product Data, processing Product orders, and messaging ShoppingStock customers.
- Seller agrees not to use ".com" or web indicator equivalent in its name, its profile, or anywhere referencing its goods or services on the ShoppingStock Marketplace.
Seller is free to determine the price for each Product, subject to the following: Seller will ensure that, (a) the purchase price for such Product and every other term of offer and/or sale of such Product (including associated shipping and handling charges, any "low price" guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchase one or more other products, and terms of applicable return and refund policies) is at least as favorable to ShoppingStock users as the most favorable terms upon which the same or substantially similar product is offered and/or sold via Seller's other sales channels; (b) customer service for each such Product is at least as responsive and available and that Seller offers at least the same level of support as the most favorable customer services offered in connection with Seller products offered via any of Seller's other sales channels; and (c) the Product Data that Seller provides to ShoppingStock is of at least the same level of quality as the highest quality information displayed or used in Seller's other sales channels. If Seller becomes aware of non-compliance with (a) above, Seller will promptly compensate adversely affected customers by making appropriate refunds. To comply with the foregoing, any change in Product pricing should be updated in the ShoppingStock Marketplace within two business days.
6. Returns of Product and Warranty
- Orders for Product may be returned by customers to Seller in the manner and within the time frame specified by Seller in the applicable Product listing, which will, at minimum, reflect the return policy indicated on the Seller Information Form. Customers will submit return requests through ShoppingStock Seller Dashboard. Seller will be responsible for accepting and processing returns, refunds and adjustments for Product. Upon a refund request from a customer, Seller will provide the applicable warehouse shipping address for the return and issue a Return Merchandise Authorization (RMA) number along with other pertinent information to the customer within 48 hours of the return request. Seller will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other chargers) or other amounts to be paid by Seller to customers in connection with Product transactions. All refund (and adjustment) payments will be routed through the ShoppingStock Payment System. Seller will promptly provide refunds and adjustments that it is obligated to provide under this Agreement and as required by applicable law, and in no case later than 30 days following after the obligation arises.
- Seller is responsible for satisfying all Product warranty obligations and for fees and expenses arising out of or related to Product returns and warranty services, including shipping and handling costs.
- Seller is required to issue a full refund or exchange for any damaged shipment unless otherwise agreed to with the customer for any partial refund.
7. Product Disputes
Seller will be responsible for resolving, in a timely manner, any non-delivery, mis-delivery or delivery of damaged Products or other customer complaints through ShoppingStock Seller Dashboard, following ShoppingStock Guidelines.
This Agreement will have an initial term of one year, and unless otherwise terminated pursuant to Section 9, will automatically renew for successive one-year terms.
- Either party may terminate this Agreement at any time on thirty (30) days' written notice.
- Either party may terminate this Agreement immediately on the other party's material breach of any provision hereof, provided that the non-breaching party provides ten (10) days' written notice to the breaching party and the breach is not cured within such ten-day period.
- Termination of this Agreement will not relieve the parties of any obligations accrued through the date of such termination. All terms and provisions in this Agreement that should by their nature survive any termination will so survive.
Seller will maintain commercial general liability insurance at Seller's sole cost and expense. Such insurance will be provided with an insurer and will include, without limitation, commercial general liability, product liability, completed operations, blanket contractual liability, and personal injury and advertising liability. On request, Seller will provide a certificate of insurance evidencing all the coverage described in this section.
11. Control of Site and Intellectual Property
- Notwithstanding any provision in this Agreement, ShoppingStock will have the right in its sole discretion to determine the content, appearance, design, functionality and all other aspects of the ShoppingStock Services (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to, the ShoppingStock Services and any element, aspect, portion or feature thereof (including any Product listings), from time to time) and to delay or suspend listing of, or to refuse to list, or to de-list, or to require Seller not to list, any or all Products in ShoppingStock's sole discretion. Without limiting the generality of the foregoing, in the event of Seller's breach of this Agreement or for any act of fraud, misrepresentation or violation of applicable law, rules or regulations, ShoppingStock reserves the right, in its sole discretion, to remove any Products listed in the ShoppingStock Marketplace, cancel pending orders for Products, require Seller to offer its customers refunds for Products or suspend Seller's ability to participate in the ShoppingStock Marketplace or otherwise use the ShoppingStock Services.
- "Product Listing Materials" means all content (e.g., graphics and text), Product Data and other information or materials provided by Seller or made available by Seller for use on the ShoppingStock Services.
- Seller grants ShoppingStock a royalty-free, non-exclusive, worldwide right and license to use, reproduce, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise exploit in any manner, any and all Product Listing Materials in connection with (i) the offering of Seller Products in the ShoppingStock Marketplace or (ii) use with the ShoppingStock Services, and to sublicense the foregoing rights to ShoppingStock affiliates. Seller also grants ShoppingStock a royalty-free, non-exclusive, worldwide right and license, under all rights Seller may have, now or in the future, to photograph, produce images of or otherwise record the Products, and to use, reproduce, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise exploit in any manner, such photographs, images or records in connection with the ShoppingStock Services.
- Except as expressly provided herein, neither party will acquire any rights or interest in the other party's trademarks, trade names, trade dress or other intellectual property, and any goodwill generated therein will inure solely to the benefit of the owner party. Each party reserves all of its rights in and to its trademarks, trade names and trade dress, all graphic images and text contained on such party's website, and all other intellectual property owned or licensed by such party.
- Except for the license rights granted in Section 11(b), all intellectual property rights in the Products are retained by Seller or its suppliers and/or licensors.
12. Representations & Warranties
Seller represents and warrants to ShoppingStock that (a) the person entering into this Agreement on behalf of Seller has the authority and full power to do so, and all corporate actions have been taken, and all approvals obtained, that are necessary to make this Agreement binding and enforceable as against Seller, (b) Seller's performance of this Agreement is not in conflict with, and will not cause an event of default under, any agreement or instrument to which Seller is a party or by which Seller is bound, (c) the Products shipped under any customer order meets its product specifications at the time of shipment and is fit and safe for the use for which it was manufactured, and (d) all Product Data will be accurate and complete.
THE SHOPPINGSTOCK SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED "AS IS." AS A USER OF THE SHOPPINGSTOCK SERVICES, SELLER IS USING THE SERVICES AT ITS OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SHOPPINGSTOCK WAIVES AND DISCLAIMS: (1) ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SHOPPINGSTOCK SERVICES OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (2) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (3) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. SHOPPINGSTOCK DOES NOT WARRANT THAT THE ShoppingStock SERVICES WILL MEET SELLER'S REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND SHOPPINGSTOCK WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.
Seller agrees to indemnify, defend, and hold harmless ShoppingStock and its affiliates and their respective directors, officers, employees, contractors, agents and representatives (the "ShoppingStock Indemnified Parties"), from and against any and all losses, damages, liabilities, penalties, costs of settlement and expenses (including, without limitation, reasonable attorneys' fees and expenses) arising from any third- party claims, suits, proceedings, demands or causes of action (including, without limitation, governmental actions) (collectively, "Losses") arising out of, resulting from, or relating to (i) any death, bodily injury or property damage occurring or alleged to have occurred as a result of any Products provided by Seller, (ii) warranties, statements, instructions for use or warnings on the label(s), boxes, inserts or other packaging for the Products or directions for use or application provided or approved by Seller, (iii) any act or omission of Seller, or the employees, contractors, agents or representatives of Seller, in the advertising or furnishing of Product or in the performance of services under any customer order, including any warranty service, (iv) any actual or alleged infringement by Seller or Products provided by Seller of any intellectual property right or right of privacy or publicity or other personal or proprietary right of any third party, and (v) any violation of applicable law by Seller, or the employees, contractors, agents or representatives of Seller. Notwithstanding the foregoing, Seller shall not have any obligation or liability to ShoppingStock under this Section 14 to the extent any such Losses arise from any breach of contract, gross negligence or willful misconduct by ShoppingStock.
15. Limitation of Liability
SHOPPINGSTOCK WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO SELLER OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY SELLER OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SHOPPINGSTOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FURTHER, SHOPPINGSTOCK'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS PAID BY SELLER TO SHOPPINGSTOCK IN THE SIX-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
During the course of use of the ShoppingStock Services, Seller may receive information relating to ShoppingStock that is not known to the general public ("Confidential Information"). Seller agrees that: (a) all Confidential Information will remain ShoppingStock's exclusive property; (b) Seller will use Confidential Information only as is reasonably necessary for Seller's use of the ShoppingStock Services or participation in the ShoppingStock Marketplace; (c) Seller will not otherwise disclose Confidential Information to any individual, company or other third party, and (d) Seller will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. All such Seller confidentiality obligations shall survive for a period of 12 months after any termination of this Agreement.
17. Use of ShoppingStock Transaction Information
Seller will not, directly or indirectly: (a) disclose or convey any ShoppingStock Transaction Information (except Seller may disclose this information as necessary for Seller to perform its obligations under this Agreement); (b) use any ShoppingStock Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with ShoppingStock's or Seller's privacy policies or applicable Law; or (c) disparage ShoppingStock, its affiliates, or any of their or our respective products or services. The terms of this Section 17 does not prevent Seller from using other information that it acquires without reference to ShoppingStock Transaction Information for any purpose, even if such information is identical to ShoppingStock Transaction Information. "ShoppingStock Transaction Information" means, collectively, information relating to customer orders, and any other data or information acquired by Seller from ShoppingStock or its affiliates, or otherwise as a result of the Agreement, the transactions contemplated hereby or the parties' performance hereunder. All such Seller restrictions on the use of ShoppingStock Transaction Information shall survive expiration or termination of this Agreement.
18. Password Security
Any password ShoppingStock provides to Seller may be used only during the Term to access ShoppingStock Seller Dashboard (or other tools we provide) to use the ShoppingStock Services, including conducting and reviewing customer transactions. Seller is solely responsible for maintaining the security of the password. Seller may not disclose its password to any third party (other than third parties authorized by Seller to use the Seller account in accordance with this Agreement), and Seller is solely responsible for any use of or action taken under its password. If Seller's password is compromised, Seller must immediately change its password.
19. Force Majeure
ShoppingStock will not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events or other matters beyond ShoppingStock's reasonable control, including without limitation, hardware failure, interruptions or failure of the Internet or third-party network connections.
20. Relationship of Parties
ShoppingStock and Seller are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Seller will have no authority to make or accept any offers or representations on ShoppingStock's behalf. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this Agreement.
21. Entire Agreement and Modifications
ShoppingStock may amend this Agreement at any time in its sole discretion. If we amend the terms to this Agreement, such amendment will be effective upon notice of the amended agreement. Such notice will be in our sole discretion and manner of notification could include, for example, via email, posted notice on the Seller Dashboard, or other manner. You can view the Agreement at any time at http://www.shoppingstock.com/sell Seller is responsible for reviewing the terms and remaining informed about applicable changes. SELLER'S CONTINUED USE OF THE SHOPPINGSTOCK MARKETPLACE WILL CONSTITUTE SELLER'S ACCEPTANCE OF ANY CHANGES. IF SELLER DOES NOT AGREE WITH ANY CHANGES, SELLER SHOULD STOP USING THE ShoppingStock MARKETPLACE AND TERMINATE THIS AGREEMENT.
Except as provided for in this Section 21, any other modification, amendment, supplement or waiver of this Agreement must be made in writing and duly signed by all parties.
Seller may not assign this Agreement, or any right or interest herein, without the prior written consent of ShoppingStock. Any purported assignment in violation of the foregoing will be void. ShoppingStock will have the right to freely assign this Agreement. Subject to the foregoing, this Agreement will be binding on each party and its authorized successors and assigns.
23. Governing Law
This Agreement will be deemed to have been executed and delivered in the State of New York, and will be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to its conflict of law principles or the Convention on Contracts for the International Sale of Goods. The parties hereby expressly consent to the exclusive jurisdiction and venue of any federal or state court in New York City, in the State of New York.
The headings are provided for convenience only and shall not be used in interpreting any provision of this Agreement.
25. No Waiver
No omission or delay by either party in requiring the other party to fulfill its obligations hereunder will be deemed to constitute a waiver of (i) the right to require the fulfillment of any other obligation hereunder; or (ii) any remedy that may be available hereunder.