PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES, FEATURES, AND SYNDICATION NETWORK OFFERED BY VALET SELLER (“VALET SELLER,” “US” OR “OUR”). THIS AGREEMENT FORMS A LEGAL CONTRACT BETWEEN THE MERCHANT IDENTIFIED IN THE SIGN-UP FORMS (“MERCHANT,” “YOU” OR “YOUR”) AND VALET SELLER AS IT RELATES TO YOUR USE OF VALETSELLER.COM OR ANY OTHER VALET SELLER-CONTROLLED WEBSITE, SERVICE, OFFERING, MARKETPLACE, PLATFORM, APPLICATION OR 3RD PARTY PLATFORM ACCOUNT (COLLECTIVELY, THE “VALET SELLER APP”), IN CONNECTION WITH SELLING YOUR PRODUCTS (AS DEFINED BELOW). IN ORDER TO PROMOTE, MARKET, SELL OR OFFER TO SELL PRODUCTS ON THE VALET SELLER APP, YOU MUST FIRST AGREE TO THIS AGREEMENT BY CLICKING “ACCEPT” WHERE THIS OPTION IS MADE AVAILABLE TO YOU. IF YOU ARE ACCEPTING THIS AGREEMENT FOR AN ORGANIZATION OR ENTITY, YOU REPRESENT AND WARRANT YOU HAVE POWER AND AUTHORITY TO BIND SUCH ORGANIZATION OR ENTITY TO THIS AGREEMENT. THESE TERMS SHALL PREVAIL IN CASE OF ANY CONFLICT WITH ANY PRIOR AGREEMENT BETWEEN THE MERCHANT AND THE VALET SELLER APP.
Valet Seller’s role is to help Merchants sell more. Valet Seller does this by distributing products across a network of online stores including but not limited to: Valet Shops, Amazon US, Walmart, eBay, Google, Facebook, WISH, Sears, Bonanza, Amazon CA, and Walmart CA.
The Valet Seller App is a self-serve platform to enable Merchants to manage their products in Valet Seller’s Network of online stores. Merchants will upload product data to the Valet Seller App and agree to fulfill orders themselves or ship inventory to Valet Seller for managed fulfillment.
Merchant may market, promote, sell, offer for sale, display, import, export and distribute (to the extent applicable) its Products using the Valet Seller App. A buyer enters into a transaction with a Merchant, facilitated through the Valet Seller App, when that buyer places an order for that Merchant’s goods or products featured in that Merchant’s store available on the Valet Seller App (collectively, “Products”). Please note that Valet Seller can also be a merchant on the Valet Seller App.
After placing such an order, the buyer receives a notification regarding the order, and the Merchant receives a notice in its Valet Seller Merchant account. A transaction is completed upon payment from the buyer and shipment of the goods by the Merchant in accordance with this Agreement. Valet Seller offers a Direct Payment Service to facilitate a Merchant’s transactions with its buyers and, when offering such Direct Payment Service, is not a buyer of any products related to the transaction between the buyer and Merchant. Valet Seller does not transfer legal ownership of Products from Merchant to buyer (though, on occasion, Valet Seller is a Merchant of products on the Valet Seller App).
Application and Approval Overview
Merchant shall set up a Merchant account on the Valet Seller App through a website or application portal and fill out all applicable information. Valet Seller only accepts some brands and Merchants onto the Valet Seller App and reserves the right not to accept, within its sole discretion, any brands or Merchants that do not meet its standards. Furthermore, Valet Seller reserves the right to remove from the Valet Seller App any Merchant or Product(s) at our sole discretion. Merchant acknowledges and agrees that certain marketplaces included in the Valet Seller App may require Merchants to meet certain quality standards, may be limited to certain categories or types of Products and/or may be subject to different terms with respect to payments, transaction fees and shipping requirements. Merchant also acknowledges and agrees that by creating a Valet Seller App Merchant account for any applicable Valet Seller-controlled marketplace, website or application, Merchant grants to Valet Seller the right to list and make available for sale to buyers Merchant’s Products offered through that particular marketplace, website or application through any other Valet Seller-controlled marketplace, website, application or 3rd party partner account as well, subject to the payment terms set forth in this Agreement . For example, if a Merchant lists its Products on valetseller.com, without any further notice to (or consent required from) Merchant, Valet Seller may (in its sole discretion) choose to list any or all of those same Products on our Valet Seller controlled marketplace, valetshops.com and 3rd party partner accounts (including, but not limited to, Amazon, eBay, Walmart, Facebook, Google, Bonanza & Sears) as part of our Syndication Program.
Merchant will set up a Merchant store that will describe Merchant’s brand and other attributes of Merchant’s store and Products on the Valet Seller App (a “Profile Page”) and create or customize content (including without limitation video, photographs and text, all of which shall be owned by Merchant and licensed to Valet Seller pursuant to the content license set forth below) for its Products that it wishes to sell on the Valet Seller App (“Product Content”). All Merchant information and Product Content will be visible to users on the Valet Seller App.
Valet Seller Promotions.
Valet Seller reserves the right to implement and create promotions in connection with the Valet Seller App pursuant to which buyers may receive discounts in Product purchases. Merchant shall have the right to determine whether it wishes to participate in the Valet Seller Promotions program. To the extent Merchant opts to participate in the Valet Seller Promotions program, it shall be obligated to allow discounts in conjunction with the purchase of any and all Products it offers through the Valet Seller App. Merchant may allow a buyer to apply a maximum percentage of such buyer’s total purchase price of a Product toward discounts via the Valet Seller Promotions program. This percentage shall be selected by the Merchant via the Valet Seller App, within a range determined by Valet Seller. Valet Seller reserves the right to modify the terms of the Valet Seller Promotions program at any time in its sole discretion.
Merchant has the right to opt out of allowing Valet Seller Promotions discounts towards the purchase of Products, or modify the maximum allowed discount and budget at any time. However, it may take up to 24 hours for any such changes to take effect.
Merchant shall set a “Product Price” for each Product representing the amount Merchant agrees that such Product may be sold for, plus shipping costs for each Product. Valet Seller reserves the right to adjust the prices or shipping costs displayed to users to optimize sales for our Merchants. This does not affect the amount or percentage Valet Seller has agreed to pay to Merchant for their Products, and Valet Seller will pay Merchant based on the Product Price and shipping costs that Merchant lists for its Products, unless Merchant has agreed to pricing adjustments in connection with special promotions offered from time-to-time to promote Merchant’s Products (in which case the amount Valet Seller pays Merchant for its Products may be lower, subject to the specific terms of such promotions).
Generally, Valet Seller will use commercially reasonable efforts to assist Merchant in facilitating its basic customer service requests. This may include (but is not limited to) assistance with questions related to order tracking, assistance with carrier claims of lost or damaged shipments, assistance processing returns including provision of return shipping labels to buyers and initiation of the return in the Valet Seller App, cancellation of orders due to buyer request or credit card issues and referral of any buyer questions relating to a particular Merchant to that Merchant. Valet Seller reserves the right to decline to assist Merchant in conjunction with certain customer service functions. Merchant acknowledges and agrees that Valet Seller does not guarantee that it will answer or resolve any or all customer service inquiries, issues or disputes.
Shipping and Inventory.
All sales of Products are binding. Merchant shall be solely responsible for all buyer purchase order fulfillment, shipping, returns, recalls and customer service issues at Merchant’s expense. Merchant shall ship the Products for orders placed through the Valet Seller App to the address of the buyer (or the buyer’s intended recipient) within the time periods defined in the Merchant’s profile page. All shipments of Products shall be shipped Delivered Duty Paid to buyer’s designated address (or DDP, as defined in Incoterms 2010, and meaning that Merchant is responsible for delivering Products to the address of the buyer or buyer’s intended recipient and shall pay all costs, including relevant import duties and taxes, to ship Products to their destination). Merchant acknowledges and agrees that different marketplaces of the Valet Seller App may be subject to different shipping and inventory requirements, as communicated to Merchant by Valet Seller, and Merchant is responsible for complying with all such terms and conditions that Merchant accepts in the course of accessing or using any marketplace of the Valet Seller App.
Valet Seller Logistics
Valet Seller may offer managed logistics for Merchant, for which Merchant will pay the following fees:
Valet Seller shall have the right to accept, reject or remove approval of any Product in its sole and absolute discretion. Merchant acknowledges and agrees that Valet Seller has the right in its sole discretion to remove any information and content, and block sales of any Products, at any time for any reason.
Merchant acknowledges and agrees that it will provide clear shipping policies and ship all orders of Products and otherwise complete transactions with buyers in the agreed handling time. Merchant acknowledges and agrees that all descriptions, photos and other information and content relating to Products shall be accurate and complete at all times. Merchant acknowledges and agrees that Valet Seller may adjust Product details (e.g., titles, images, descriptions) for optimization purposes in its sole discretion, solely to the extent such changes do not impact the amount Merchant will receive in the event of a sale or change the Product being offered for sale.
Code of Conduct
Each party acknowledges and agrees that the reputation of the other party’s brand, image, and public esteem are essential components of this Agreement. Each party agrees to hold the other party, as well as other Merchants on the Valet Seller App, in high esteem and only promote the other party positively and in good faith. Merchant shall conduct itself at all times in such a manner as not to engage in conduct that is generally viewed by the public as offensive, reprehensible, illegal, vulgar or that otherwise impairs or diminishes or is reasonably likely to impair or diminish the reputation of Valet Seller or other Merchants on the Valet Seller App. Any such conduct by Merchant in violation of the foregoing may constitute grounds for termination.
Declaration of Authentic Goods.
Valet Seller may request Merchant to confirm that the Products they are offering are authentic by submitting a Declaration of Authentic Goods. If you receive such a request, you must comply with the request by sending an email containing a signed declaration in the form provided below to the email address provided in the request.
Declaration of Authentic Goods (“Declaration”):
I declare under penalty of perjury that I have a good faith belief after reasonable inquiry that all of the Products currently or previously offered for sale on my shop at Valet Seller:
- are not replicas, counterfeit items, bootlegged, illegally duplicated, pirated or otherwise unauthorized copies; and
- do not violate or infringe upon any third-party intellectual property, or other rights or interest of any nature whatsoever.
I declare under penalty of perjury that I have a good faith belief that:
- I have all necessary rights to display, sell, offer for sale and ship Products in my shop on Valet Seller;
- operating my shop on Valet Seller does not conflict with any other agreement to which I am bound; and
- I have obtained any required license to operate my shop on Valet Seller and that any such licenses are in full force and effect.
I will accept service of process from any party who contacts Valet Seller alleging that my shop is infringing its intellectual property or other right or violating an agreement with such party (a “Complaining Party”). I consent to the release to such Complaining Party of all information in this Declaration and related communications. For any disputes with such Complaining Party, I consent to the jurisdiction of the Federal District Court for the judicial district in which my address is located, or if my address is outside of the United States, for any judicial district that can exercise jurisdiction. Failure to comply with a request to provide a Declaration of Authentic Goods statement within 10 business days may result in suspension or termination of Merchant’s account on the Valet Seller App and/or mandatory acceptance of any Product returns and payment of corresponding refunds until Merchant submits a Declaration of Authentic Goods statement, notwithstanding any contrary terms in the Merchant’s refunds and exchanges policies or this Agreement.
Merchant agrees not to engage in shilling, which is generally defined as the use of bots or alternate accounts to fraudulently impact any aspect of Merchant’s reputation (including without limitation pricing, sales and review data). Valet Seller reserves the right to remove from the Valet Seller App any Merchant or Product(s) which are believed to have been compromised by the practice of shilling at its sole discretion.
Term and Termination.
This Agreement shall commence on the date Merchant accepts the terms and conditions of this Agreement (the “Effective Date”) and shall continue thereafter unless either party terminates this Agreement in accordance with its terms.
Either party may terminate this Agreement for convenience immediately upon written notice. Upon any termination or expiration of this Agreement, Merchant shall promptly fulfill any outstanding orders for Products upon Valet Seller’s written request. For the avoidance of doubt, termination of this Agreement or any order for any reason will not affect the obligations of Merchant with respect to returns, warranty, recalls, or customer service. The following Sections of this Agreement shall survive any expiration or termination of this Agreement or an applicable order for Products: Termination (subsection of Term and Termination), Direct Payment Services, Fees, Refunds and Taxes, Deposits, Recoupment, IRS Regulations, Taxes, Returns and Transaction Disputes, Disclaimer, Ownership of the Valet Seller App, Indemnification, Insurance (for the period stated therein), Limitation of Liability, Confidentiality, Severability, Governing Law, Waiver, Relationship of the Parties and Entire Agreement.
If Merchant’s payment is not received by the applicable billing date of any invoice provided by Valet Seller, Valet Seller may (in its sole discretion) automatically revoke such Merchant’s access to its account and/or the Valet Seller App (in whole or in part). Valet Seller reserves the right to withhold any monies owed by Valet Seller to Merchant, at its discretion, to cover any outstanding amounts owed by Merchant to Valet Seller. Valet Seller may or may not (in its sole discretion) contact Merchant directly to notify Merchant of unpaid amounts due.
Direct Payment Services, Fees, Refunds, and Taxes.
Direct Payment Services
After Merchant has registered an account on the Valet Seller App and has been approved by Valet Seller according to the criteria set forth above, Valet Seller will accept payment on behalf of Merchant (the “Direct Payment Service”). Valet Seller accepts all major credit cards on behalf of Merchant. Merchant acknowledges and agrees that the Direct Payment Service is offered solely to facilitate Merchant’s transactions with its buyers. Merchant further acknowledges and agrees that:
- The transaction between Valet Seller and Merchant is for payment only. Valet Seller is not the buyer of any Products.
- The Direct Payment Service can be discontinued by Valet Seller at any time.
- Valet Seller reserves the right to place limits on transactions between all or some buyers and Merchant if Valet Seller suspects fraud. Such limitations may be in the form of number of transactions or value of items. Valet Seller shall not be liable to Merchant if Valet Seller opts not to proceed with a transaction based on the foregoing limitations.
- Valet Seller reserves the right to refuse the Direct Payment Service to Merchant or any of its buyers at any time for any reason.
- Valet Seller reserves the right to terminate Merchant if Valet Seller has reason to believe (in its sole discretion) that Merchant is using the Direct Payment Service to transfer funds not related to the sale of Products.
- Valet Seller may decline transactions that Valet Seller believes, in its sole discretion, pose a high risk of fraud.
- Valet Seller does not pass any financial data such as credit card information regarding Merchant’s buyers or other end users of the Valet Seller App to Merchant. Merchant will receive necessary buyer information required to complete the order including name and mailing address.
- Merchant authorizes Valet Seller to verify information regarding Merchant’s account (including the authenticity thereof) using credit reports or other means.
- Merchant shall resolve all disputes with buyer as set forth below in the Returns and Transactions Disputes section.
Current Information Required from Merchant to Receive Payment
MERCHANT MUST PROVIDE VALET SELLER WITH CURRENT, COMPLETE AND ACCURATE BILLING INFORMATION (INCLUDING WITHOUT LIMITATION, BILLING ADDRESS, E-MAIL ADDRESS, WEBSITE URL, CREDIT CARD NUMBER, CREDIT CARD EXPIRATION DATE AND CREDIT CARD SECURITY CODE, IF APPLICABLE). MERCHANT MUST PROMPTLY UPDATE ALL BILLING INFORMATION WITH VALET SELLER SO THAT IT REMAINS CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, E-MAIL ADDRESS, WEBSITE URL, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND MERCHANT MUST PROMPTLY NOTIFY VALET SELLER IF MERCHANT’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF MERCHANT BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF MERCHANT’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE FROM MERCHANT DASHBOARD. IF MERCHANT FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, MERCHANT AGREES THAT VALET SELLER MAY CONTINUE CHARGING MERCHANT AS SET FORTH IN THIS AGREEMENT DURING THE TERM.
Once Merchant provides a tracking number which has been scanned by the shipping carrier for a Product, Valet Seller will consider the corresponding sale for the Product complete. Merchant’s proceeds from the sale will show in Merchant’s account (subject to Merchant’s payment of any applicable amounts payable to Valet Seller, as further described herein). Merchant acknowledges that any and all refunds, adjustments, discounts or other amounts that would result in a deduction in connection with any Products sold shall be applied against any corresponding payment made to Merchant. Merchant further acknowledges and agrees to the following.
- Subject to Valet Seller’s right to hold funds in certain circumstances (as described below), Valet Seller will initiate transfers for payments to Merchant relating to completed sales and shipments of Products in respect of which Valet Seller has been paid by the applicable buyers and/or third-party distribution partners once per calendar month, before the 15th day of each calendar month for sales completed from the 1st through the last day of such calendar month. If the 15th of an applicable calendar month falls on a non-business day or Valet Seller observed holiday, any outstanding transfers may be initiated on the next business day. Please note that once the transfer is initiated it may take 3-5 days for the funds to become available to Merchant.
- Valet Seller reserves the right to hold or delay funds based on reasonable information available if Valet Seller believes that a transaction may result in a return, dispute, chargeback or other claim. Such determination shall be made at Valet Seller’s sole discretion, however, any hold or delay of funds will not last longer than 120 days before a resolution will be given; provided, however, that Valet Seller may indefinitely hold funds pending the final resolution of any legal action that could reasonably be expected to result in liability to Valet Seller. Valet Seller will notify Merchant via email if a hold occurs. Valet Seller shall not be liable to Merchant for any acts or omissions in accordance with the foregoing.
- Merchant must provide complete and accurate bank account information, and will update such information so that it remains current and accurate at all times during the term of the Agreement.
- Funds that cannot be deposited into Merchant’s bank account due to incorrect bank information will be held by Valet Seller until Merchant provides updated and accurate information.
Valet Seller, as the sole entity collecting funds on behalf of Merchant, reserves the right to seek reimbursement from Merchant if Valet Seller issues a refund, at its sole discretion, receives a chargeback or finds errors related to duplicate payments or duplicate transactions for which Merchant was paid. Merchant may also be subject to an additional processing fee of $20 for each chargeback that is received. Valet Seller reserves the right to seek reimbursement through deduction of future payments, charging Merchant’s credit card account or other means necessary, including retaining a reserve of Merchant’s funds earned through the Valet Seller App or pursuing debt collections. Merchant hereby authorizes such means of collection should they become necessary.
Internal Revenue Service regulations require that any U.S. third-party payment settlement entities, including Valet Seller, file Form 1099-K to report gross sales for Merchants that meet both of the following criteria in a calendar year (reporting):
- the gross amount of the total reportable payment transactions exceeds $20,000; and
- the total number of such transactions exceeds 200.
As a result of these regulations, Valet Seller requires Merchant to provide accurate tax ID information and verification of the foregoing information regardless of Merchant’s sales volume on the Valet Seller App. Accordingly, Merchant acknowledges and agrees that it will provide all applicable tax ID information upon notification from Valet Seller.
Returns and Transaction Disputes.
All Product returns shall be shipped from the applicable buyer to Merchant directly. Merchant shall cooperate with Valet Seller and provide all reasonably requested information to facilitate the Product return process, including making return shipping labels available to buyers through the Valet Seller App, at Merchant’s expense. If Product is not returned to Merchant in resalable condition (e.g., unused, unwashed and undamaged), Merchant must contact the Valet Seller Merchant Help team as soon as possible, and provide any further information requested by Valet Seller, such as photographs and other information to help resolve the matter. Valet Seller will determine in its sole discretion whether the returned Product is in resalable condition.
Merchant must allow buyers to initiate the aforementioned Product returns for any reason within 30 calendar days from shipment delivery date and accept such returns in accordance with the terms herein Merchant shall be solely responsible for and shall hold Valet Seller and its buyers harmless from, all costs and expenses associated with Product returns, and for handling all returns and customer service requests relating to the Products at its expense.
Merchant Canceling an Order
If Merchant cannot fulfill an order due to extraordinary circumstances or otherwise, Merchant must cancel the order as soon as possible using the provided option on the Valet Seller App or by contacting the Valet Seller Merchant Help team from https://valetseller.com/contact/ Orders cannot be cancelled in connection with any Fee Avoidance. If Merchant cancels what Valet Seller deems an unreasonable number of orders, at the sole discretion of Valet Seller, Merchant’s account may be suspended and reviewed by Valet Seller.
Buyer Cancelling an Order
Merchant acknowledges and agrees that any buyer of a Product will be allowed to cancel an order as long as such order has not shipped. Valet Seller will promptly notify Merchant of any buyer-initiated cancelled orders through email and through Merchant’s Valet Seller account on the Valet Seller App.
In the case that a buyer receives Products from Merchant or its agents that are damaged upon arrival, such buyer will generally have 14 calendar days from the delivery date of the Product to initiate a return for the damaged Product to Merchant. Extensions to this timeframe may be granted to buyers on occasion at the sole discretion of Valet Seller.
Products Not Received
On occasion a situation may arise where Merchant shipped a Product but the corresponding buyer did not receive such Product. In these situations, Valet Seller may require Merchant to provide further information such as proof of shipping or proof of delivery to help resolve the dispute. Valet Seller reserves the right to issue a buyer of a Product a refund and adjust Merchant’s account accordingly. Merchants that do not respond to Valet Seller’s requests to provide information in furtherance of resolving a dispute may have their accounts suspended or terminated from the Valet Seller App. Merchant acknowledges that in the event its account has been suspended or terminated, it remains obligated to pay any outstanding amounts owed to Valet Seller.
Product is Different than Description
On occasion a situation may arise where a buyer purchases a Product but receives a product that is different than the Product described on the Valet Seller App. In these situations, Valet Seller may require both Merchant and buyer to provide further information such as photographs and other information to help resolve the dispute. Upon review of such information, Valet Seller reserves the right to issue a buyer a refund and adjust Merchant’s account accordingly. Merchants who do not respond to Valet Seller’s requests to provide information in furtherance of resolving a dispute may have their accounts suspended or terminated from the Valet Seller App. Merchant acknowledges that in the event its account has been suspended or terminated, it remains obligated to pay any outstanding amounts owed to Valet Seller. Failing to comply with any items in this agreement may also result in fees and penalties.
Fees and Other Amounts Payable.
Merchant shall pay certain amounts to Valet Seller, and Valet Seller shall remit certain amounts to Merchant, as set forth in this Agreement, of which Valet Seller reserves the right to update from time to time in its sole discretion upon notice to Merchant, and/or any other written agreement between the parties. Except as expressly set forth in this Agreement, all amounts payable by Merchant to Valet Seller are nonrefundable, regardless of whether any order of Products is subsequently canceled or returned.
In order to set up a Merchant account, Merchant will be required to sign up for a paid listing plan on a subscription basis (“Membership Plans”) unless otherwise noted. Details and terms for such Membership Plans are set forth at https://valetseller.com/pricing/.
Merchant may not engage in any activity to avoid any fees incurred or other amounts owed to Valet Seller by Merchant hereunder (“Fee Avoidance”). Fee Avoidance includes but is not limited to: completing a transaction through means other than the Valet Seller App once such transaction has been initiated on the Valet Seller App, pricing Products below its intended purchase price, charging excessive shipping fees or otherwise altering a Product to avoid any fees hereunder or diverting purchases to another source.
Valet Seller may collect applicable taxes on Merchant’s behalf, however, Merchant shall be generally responsible for paying any and all taxes applicable to any purchases or sales of Products, including without limitation all applicable sales, VAT, use or other taxes, duties or governmental assessments (excluding any taxes on Valet Seller’s net income).
Merchant represents and warrants to Valet Seller, Valet Seller’s members and Valet Seller’s buyers that all Products furnished hereunder: (a) are free from defects in design, materials and workmanship; (b) are of merchantable quality; (c) conform strictly, to any applicable Specifications (defined below) therefore; (d) are fit and sufficient for their intended purposes; (e) do not contain any viruses, Trojan horses, worms, time bombs, malware, or other harmful code or instructions; and (f) are being furnished by Merchant to the applicable buyer, with clear and marketable title to the Products, free from all liens, claims and encumbrances. Merchant further represents and warrants that: (i) all Products and any other services, content or materials provided hereunder by or for Merchant comply with all applicable domestic and, to the extent applicable, international laws, rules and regulations, and labeling and disclosure requirements, and do not violate or infringe upon any third party intellectual property or other rights or interest of any nature whatsoever; (ii) Merchant has all necessary rights to display, sell, offer for sale and ship Products in Merchant’s store on the Valet Seller App, (iii) nothing in this Agreement conflicts with any other agreement to which Merchant is bound, (iv) Merchant shall comply with all applicable laws, rules and regulations in the course of performing its obligations under this Agreement, including without limitation FTC mail order rules, and (v) if Merchant’s performance of its obligations under this Agreement requires a license, Merchant has obtained that license and the license is in full force and effect. For purposes hereof, “Specifications” means any and all specifications, drawings, samples, models, diagrams, descriptions, bulletins, engineering sheets or other materials relating to the Products provided by Merchant, and any other requirements permitted for customized Products. Products repaired or replaced by Merchant shall be subject to all of the provisions of this Agreement and the order in the manner and to the same extent as Products originally furnished hereunder. These warranties shall survive acceptance, inspection, delivery and payment and shall inure to the benefit of Valet Seller, its successors, assigns, buyers and users of Products. Nothing herein shall limit any other warranties, express or implied, available to Valet Seller or the applicable buyer under applicable law.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE SET FORTH IN THIS WARRANTIES SECTION, AND EXCEPT FOR WARRANTIES MADE BY MERCHANT TO CUSTOMERS, EACH PARTY HEREBY DISCLAIMS (FOR ITSELF AND ITS OTHER SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IN ADDITION, Valet Seller DOES NOT WARRANT OR GUARANTEE ANY RESULTS OF USE, THAT THE Valet Seller App WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ITS SERVICES OFFERED ON OR THROUGH THE Valet Seller App SHALL RESULT IN ANY SALES OR PROFIT FOR MERCHANT.
Trademark and Content License Disclaimer.
Merchant grants Valet Seller an irrevocable, perpetual, worldwide, non-exclusive, fully paid, royalty-free, sublicensable and transferrable license to use, copy, distribute, display, and exploit Merchant’s trademarks, name, nickname, logos, initials, and if applicable, voice, biography, likeness, and images (“Mark(s)”) and content provided or made available by Merchant associated with the Valet Seller App, the Products, Products’ documentation, Products’ graphics, artwork, and other marketing materials, for the purposes of marketing and promoting the Products, and identifying Merchant as an Valet Seller Merchant, in any media or formats including, without limitation, the Valet Seller App, any news or comment feeds associated with the Valet Seller App, Insider pages, marketing communications (including Valet Seller’s and third parties’ e-mails), banner advertisements, affiliate programs, comparison shopping engines, private label sites of Valet Seller and its partners. Merchant will be responsible for obtaining all third party rights required to grant the licenses to permit Valet Seller to have the rights set forth above.
Ownership of the Valet Seller App.
As between the parties, Valet Seller owns all right, title and interest (including patent rights, copyright rights, trade secret rights, trademark rights, database rights and all other rights) relating to any and all inventions (whether or not patentable), works of authorship, artistry, designations, designs, know how, ideas, programs, events and information in connection with the Valet Seller App and related technology, the Valet Seller business and services, and any of Valet Seller’s proprietary information or content that is otherwise created by Valet Seller, including modifications, upgrades, new versions, designs, audio, video, and data developed by or on behalf of Valet Seller (collectively, “Valet Seller Materials”). No rights or licenses are granted to the Valet Seller Materials other than as expressly set forth in this Agreement.
As part of its services hereunder, Valet Seller operates a syndication program, whereby Valet Seller permits its syndication partners to display, promote, offer for sale, sell and distribute Valet Seller Merchants’ products on such syndication partners’ commerce platform (including, but not limited to, Amazon, eBay, Walmart, Facebook, Google, Bonanza & Sears) (the “Syndication Program”). By accepting the terms and conditions of this Agreement, Merchant hereby consents to have its Products featured and offered for sale in the Syndication Program. Certain of the terms regarding the Syndication Program may differ from being a Merchant on Valet Seller.
Merchant shall indemnify, defend, and hold harmless Valet Seller, its subsidiaries and affiliated companies, their successors, assigns, Merchants, publishers, curators, Insiders, employees, buyers and users of Products provided hereunder, against all damages, expenses, liabilities, claims, suits, demands, costs, attorneys’ fees or losses of every kind, arising out of or alleged to have arisen out of or in connection with (i) accidents, occurrences, injuries or losses to or of any person or property, due to or resulting from the Products or Merchant’s negligence; (ii) the design, preparation, manufacture, construction, assembly, completion, packaging, shipping or delivery or non-delivery within Merchant’s control, use, sale or distribution (other than by Valet Seller), and/or recall of Products, (iii) Merchant’s performance or lack of performance of its obligations under this Agreement or an applicable order for Products; (iv) Merchant’s breach of any representation, warranty or obligation hereunder; (v) Merchant’s actual or threatened violation of any law, rule or regulation of any governmental authority or agency (including, but not limited to, any law relating to contamination by, or the actual or threatened release of, any hazardous or toxic substance, waste or pollutant); or (vi) infringement, misappropriation or violation of any third party right by Merchant or the Products. These indemnification obligations shall apply to any and all claims, actual or asserted, by any person or entity, including without limitation, first party claims asserted by Valet Seller against Merchant. The provisions of this section shall survive the acceptance of and payment for the Products hereunder and any termination or expiration of an order for Products or this Agreement. This indemnity will not be limited in any manner whatsoever by insurance coverage maintained by Merchant.
Without limiting any of Merchant’s obligations in the Indemnification Section or otherwise, Merchant shall carry product liability insurance in an amount that meets or exceeds industry-standards for Merchant’s sales of Products and other activities on the Valet Seller App throughout the term of this Agreement and for 3 years thereafter and shall ensure that such insurance covers Valet Seller, its members, curators, Insiders and its buyers with respect to any and all products or services it supplies to Valet Seller. Merchant shall ensure that such policies shall apply as primary insurance without any right of contribution by any insurance that may be carried by Valet Seller. Upon Valet Seller’s request from time to time, Merchant shall provide certificates of insurance or other evidence of compliance with the foregoing to Valet Seller’s reasonable satisfaction. Merchant shall provide Valet Seller with at least 30 days’ advance written notice of any cancellation or reduction in coverage.
Limitation of Liability.
EXCEPT AS SET FORTH BELOW IN THIS SECTION, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT WILL THE LIABILITY OF EITHER PARTY TO THE OTHER EXCEED THE AMOUNTS PAID BY Valet Seller TO MERCHANT IN THE 12-MONTH PERIOD PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS ON LIABILITY DO NOT APPLY TO A PARTY’S INDEMNITY OBLIGATIONS REFERENCED IN THIS AGREEMENT, CONFIDENTIALITY OBLIGATIONS HEREIN OR FOR LIABILITY CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
MERCHANT ACKNOWLEDGES AND AGREES THAT Valet Seller HAS NO OBLIGATION TO BECOME INVOLVED IN, OR ACCEPT LIABILITY FOR DISPUTES BETWEEN MERCHANT AND ANY CUSTOMER. MERCHANT HEREBY AGREES TO RELEASE Valet Seller (AND ITS OFFICERS, DIRECTORS, AGENTS, AFFILIATES, SUBSIDIARIES, SUCCESSORS, INSURERS, INVESTORS, AND EMPLOYEES), FROM ALL ACTIONS, SUITS, CLAIMS, DAMAGES (ACTUAL AND CONSEQUENTIAL), JUDGMENTS, LEVIES, EXECUTIONS, LIABILITIES, LOSSES, EXPENSES, AND OTHER COSTS, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, ACTUAL OR CONTINGENT, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, IN ANY WAY CONNECTED WITH MERCHANT’S DEALINGS AND DISPUTES WITH ONE OR MORE CUSTOMERS. MERCHANT WAIVES ALL CODE PROVISIONS THAT SUBSTANTIALLY PROVIDE: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
If any provision (or portion thereof) of this Agreement is found to be invalid or unenforceable, such provision (or portion thereof) will be limited or replaced to the minimum extent necessary so that such provision will be interpreted so as to best reflect the original intent of the parties, and the balance of this Agreement shall remain in full force and effect.
This Agreement shall be governed by and construed under the laws of the State of Puerto Rico and the United States without regard to conflicts of law provisions thereof.
Neither party shall be deemed to have waived any provision hereof, or any breach by the other party of any provision hereof, unless such waiver is specifically set forth in writing and executed by an authorized agent of such party, nor shall any waiver constitute a waiver of such provision on any other occasion or a waiver of any other breach by the other party.
Relationship of the Parties.
For all purposes of this Agreement and each order for Products, each party shall be and act as an independent contractor and not as a partner, employee, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. Merchant is acting as an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations properly attributable to Merchant, including, but not limited to, appropriate Workers’ Compensation Insurance; and Merchant agrees to defend, indemnify and hold Valet Seller harmless from any and all claims, damages, liability, attorneys’ fees and expenses on account of an alleged failure by Merchant to satisfy any such obligations.
Merchant’s right to access and use the Valet Seller App, and its rights and obligations under this Agreement and/or any order for Products, may not be assigned or transferred to any person or entity without Valet Seller’s prior written consent. Valet Seller may, without consent, assign and transfer this Agreement and any applicable order for Products to a successor to all or substantially all of its business or assets to which this Agreement relates.
Merchant shall comply with all applicable export laws, rules, and regulations, including without limitation those of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Products in violation of any such restrictions, laws or regulations. The parties shall cooperate to obtain any necessary licenses or exemptions with respect to the export from the U.S. of all Products to any location and shall, at Valet Seller’s request, demonstrate compliance with all applicable laws and regulations prior to any shipment or delivery by Merchant.
Except as otherwise stated herein, Valet Seller shall have the right to modify this Agreement in its sole discretion upon 30 days’ notice to Merchant.
Any order placed hereunder and the shipment of any ordered Products are subject to the unqualified acceptance of this Agreement by Merchant. The terms and conditions set forth in this Agreement are the complete and exclusive agreement between Valet Seller and Merchant, and supersede all prior or contemporaneous oral or written understandings or negotiations, and all past dealing or industry custom, with respect to the subject matter hereof. If Merchant’s order acknowledgement, invoice, or other communication to Valet Seller that is not signed by both parties contains provisions that are inconsistent with or in addition to those contained in this Agreement, this Agreement shall prevail, and Valet Seller hereby notifies Merchant of its rejection of and objection to such inconsistent terms.