THIS AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE WAIVER OF AND JURY TRIAL AND THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU AFFIRM THAT (1) YOU ARE AT LEAST 18 YEARS OF AGE; (2) YOU HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT; (3) YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS; AND (4) YOU HAVE THE LEGAL AUTHORITY TO (A) BIND THE ORGANIZATION OR COMPANY ON WHOSE BEHALF YOU PLACED AN ORDER TO THESE TERMS AND (B) COMPLETE THE ORDER.
YOU MAY NOT ORDER NOR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (i) DO NOT AGREE TO THESE TERMS, (ii) ARE NOT AT LEAST 18 YEARS OF AGE AND HAVE THE LEGAL CAPACITY TO FORM A BINDING CONTRACT WITH US OR (iii) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, PRODUCTS OR SERVICES BY APPLICABLE LAW.
General Terms
THIS eINDUSTRIFY BUSINESS SALES AND SITE AGREEMENT (THIS "AGREEMENT") CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SITE AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND eINDUSTRIFY. BY REGISTERING FOR OR USING THE WWW.eINDUSTRIFY.COM (THE “SITE”), YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
As used in this Agreement, "we," "us," and "eINDUSTRIFY" means eINDUSTRIFY and any of its applicable Affiliates, and "you" means the applicant (if registering for or using the Site as an individual), or the business employing the applicant (if registering for or using the site as a business) and any of its Affiliates. The Site may be used for business purposes only even if the registrant is an individual. Capitalized terms have the meanings given to them the Definitions section of this Agreement or as otherwise ascribed to them within the Agreement.
1. Enrollment
To begin enrollment, you must complete the registration process for the Site. Use of the Site is limited to parties that can lawfully enter into and form contracts under applicable Law (for example, minors and other people deemed incompetent are not allowed to use the Site). As part of the application, you must provide us with your and or your business' legal name, address, phone number and e-mail address, as well as any other information we may request. Any personal data you provide to us will be handled in accordance with eINDUSTRIFY’s Privacy Notice.
2. Site Fee Payments; Receipt of Sales Proceeds
You are responsible for all of your expenses in connection with this Agreement. To use a Site, you must provide us with valid credit card information from a credit card or credit cards acceptable by eINDUSTRIFY ("Your Credit Card") as well as valid bank account information for a bank account or bank accounts acceptable by eINDUSTRIFY (conditions for acceptance may be modified or discontinued by us at any time without notice) ("Your Bank Account"). You will use only a name you are authorized to use in connection with a Site and will update all the information you provide to us in connection with the Site as necessary to ensure that it at all times remains accurate, complete, and valid. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), to obtain credit reports about you from time to time, to obtain credit authorizations from the issuer of Your Credit Card, and to charge Your Credit Card or debit Your Bank Account for any sums payable by you to us (in reimbursement or otherwise). All payments to you will be remitted to Your Bank Account through a banking network or by other means specified by us.
If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to eINDUSTRIFY or third parties, then we may in our sole discretion withhold any payments to you for as long as we determine any related risks to eINDUSTRIFY or third parties persist. For any amounts that we determine you owe us, we may (a) charge Your Credit Card or any other payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to Your Bank Account; or (e) collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate our agreements and policies, then we may in our sole discretion permanently withhold any payments to you. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in the U.S. Dollars, and all payments contemplated by this Agreement will be made in U.S. Dollars.
In addition, we may require that you pay other amounts to secure the performance of your obligations under this Agreement or to mitigate the risk of returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to eINDUSTRIFY or third parties. These amounts may be refundable or nonrefundable in the manner we determine, and failure to comply with terms of this Agreement may result in their forfeiture.
As a security measure, we may, but are not required to, impose transaction limits on some or all customers and sellers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbursement for any reason including any limit established by us for a security reason, or (ii) if we permit a customer to withdraw from a transaction because the Site is unavailable following the commencement of a transaction.
3. Term, Termination, Exclusivity
4. License
You grant us a royalty-free, non-exclusive, worldwide right and license for the duration of your original and derivative intellectual property rights to use any and all of Your Materials for the Site and to sublicense the foregoing rights to our Affiliates; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Materials (provided you are unable to do so using standard functionality made available to you via the Site); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable Law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
5. Representations
Each party represents and warrants that: (a) if it is a business, it is duly organized, validly existing and in good standing under the Laws of the country in which the business is registered and that you are registering for the Site(s) within such country; (b) it has all requisite right, power, and authority to enter into this Agreement, perform its obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by one party to the other party or its Affiliates is at all times accurate and complete; (d) it is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; and (e) it will comply with all applicable Laws in performance of its obligations and exercise of its rights under this Agreement.
6. Indemnification
6.1 Your indemnification obligations
You will defend, indemnify, and hold harmless eINDUSTRIFY, and our members, officers, managers, directors, employees, and agents, against any third-party claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys’ fees and costs) (each, a “Claim”) arising from or related to (a) your non-compliance with applicable Laws; (b) Your Products, including the offer, sale, fulfillment (except to the extent attributable to the FBA Site), refund, cancellation, return, or adjustments thereof, Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death (to the extent the injury or death is not caused by eINDUSTRIFY), or property damage related thereto; (c) Your Taxes and duties or the collection, payment, or failure to collect or pay Your Taxes or duties, or the failure to meet tax registration obligations or duties; or (d) actual or alleged breach of any representations you have made.
6.2 Process
If any indemnified Claim might adversely affect us, we may, to the extent permitted by applicable Law, voluntarily intervene in the proceedings at our expense. No party may consent to the entry of any judgment or enter into any settlement of an indemnified Claim without the prior written consent of the other party, which may not be unreasonably withheld, conditioned or delayed; except that a party may settle any claim that is exclusively directed at and exclusively affects that party.
7. Disclaimer & General Release
a. THE SITE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SITE, ARE PROVIDED "AS-IS." AS A USER OF THE SITE, YOU USE THE SITE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SITE OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE eINDUSTRIFY SITES AND THE SITE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SITE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO CONNECTIVITY FAILURES, POWER FAILURES OR SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.
b. BECAUSE eINDUSTRIFY IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES eINDUSTRIFY (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
8. Limitation of Liability
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR EXEMPLARY, SPECIAL, PUNITIVE INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF eINDUSTRIFY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES AND EVEN IF THE DAMAGES WERE FORESEEABLE. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX-MONTH PERIOD PAID BY YOU TO eINDUSTRIFY RELATED TO THE SITE.
9. Insurance
You will maintain at your expense throughout the Term commercial general, umbrella or excess liability insurance with the Insurance Limits per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations and bodily injury, with policy(ies) naming eINDUSTRIFY and its assignees as additional insureds. At our request, you will provide to us certificates of insurance for the coverage to the following address: c/o eINDUSTRIFY, info@eINDUSTRIFY.com, Attention: Risk Management.
10. Tax Matters
As between the parties, you will be responsible for the collection, reporting, and payment of all of Your Taxes, except to the extent that (i) eINDUSTRIFY automatically calculates, collects, or remits taxes on your behalf according to applicable law; or (ii) eINDUSTRIFY expressly agrees to receive taxes or other transaction-based charges on your behalf in connection with tax calculation Site made available by eINDUSTRIFY and used by you. You agree to and will comply with these tax policies. All fees and payments payable by you to eINDUSTRIFY under this Agreement are exclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes), and you will be responsible for paying eINDUSTRIFY any of Your Taxes imposed on such fees and any deduction or withholding required on any payment.
11. Confidentiality and Personal Data
During the course of your use of the Site, you may receive Confidential Information. You agree that for the term of the Agreement and 5 years after termination: (a) all Confidential Information will remain eINDUSTRIFY's exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Site; (c) you will not otherwise disclose Confidential Information to any other Person except as required to comply with the Law; (d) you will take best efforts to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement; and (e) you will retain Confidential Information only for so long as its use is necessary for participation in the Site or to fulfill your statutory obligations (e.g. tax) and in all cases will delete such information upon termination or as soon as no longer required for the fulfillment of statutory obligations. The foregoing sentence does not restrict your right to share Confidential Information with a governmental entity that has jurisdiction over you, provided that you limit the disclosure to the minimum necessary and explicitly indicate the confidential nature of the shared information to the governmental entity. You may not issue any press release or make any public statement related to the Site, or use our name, trademarks, or logo, in any way (including in promotional material) without our advance written permission or misrepresent or embellish the relationship between us in any way. You may not use our name, trademarks, or logos in any way (including in promotional material) not covered by the Trademark Usage Guidelines without our advance written permission.
Generally, you may not use customer personal data in any way inconsistent with applicable Law. You must keep customer personal data confidential at all times (the above 5 years’ term limit does not apply to customer personal data).
12. Force Majeure
We will not be liable for any delay or failure to perform any of our obligations under this Agreement as a result of a Force Majeure Event.
13. Relationship of Parties
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. Except as stated in Section 3(b), this Agreement creates no exclusive relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions in this Agreement are intended to be and are for the sole and exclusive benefit of eINDUSTRIFY, you, and customers. As between you and us, you will be solely responsible for all obligations associated with the use of any third-party Site or feature that you permit us to use on your behalf, including compliance with any applicable terms of use. You will not make any statement, whether on your site or otherwise, that would contradict anything in this section.
14. Suggestions and Other Information
If you or any of your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to any eINDUSTRIFY Site (including any related Technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. To cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content. If we make suggestions on using the Site, you are responsible for any actions you take based on our suggestions.
15. Modification
a. We will use reasonable efforts to provide 15 days’ advance notice in accordance with Section 18 for changes to the Agreement. You will not be allowed to modify the terms and conditions of this Agreement.
b. However, we may change or modify the Agreement at any time with immediate effect (a) for legal, regulatory, fraud and abuse prevention, or security reasons; (b) to change existing features or add additional features to the Site (where this does not materially adversely affect your use of the Site); or (c) to restrict products or activities that we deem unsafe, inappropriate, or offensive. We will notify you about any change or modification in accordance with Section 18.
c. Your continued use of the Site after the effective date of any change to this Agreement in accordance with this Section 15 (whether you have received notice or not) will constitute your acceptance of that change. If any change is unacceptable to you, you agree not to use the Site and to end the Agreement as described in Section 3.
16. Password Security
Any password we provide to you may be used only during the Term to use the Site, electronically accept Your Transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password.
17. Export
You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, U.S. Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.
18. Miscellaneous
a. The Governing Laws will govern this Agreement. The parties specifically agree to opt out of the Convention on Contracts for the International Sale of Goods. eINDUSTRIFY and you both consent that any dispute with eINDUSTRIFY or its Affiliates or claim relating in any way to this Agreement, or your use of the Site will be resolved by binding arbitration as described in this Section, rather than in court, except that you or we may bring suit in the Governing Courts, each you and us submitting to the jurisdiction of the Governing Courts and waiving our respective rights to any other jurisdiction, to seek injunctive or other equitable relief including without limitation to enjoin infringement or other misuse of confidential information or intellectual property rights.YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE DISPUTES IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
EXCEPT FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF AS DESCRIBED IN THE PRECEDING PARAGRAPH AND ANY DISPUTE RELATED TO YOUR FAILURE TO PAY UNDER THESE TERMS, ALL DISPUTES (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR SALE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. INJUNCTIVE OR OTHER EQUITABLE RELIEF AND DISPUTES RELATED TO YOUR FAILURE TO PAY SHALL BE BROUGHT EXCLUSIVELY IN STATE OR FEDERAL COURTS IN HOUSTON, HARRIS COUNTY, TEXAS. YOU HEREBY WAIVE ANY CHALLENGE TO BOTH JURISDICTION AND VENUE IN STATE OR FEDERAL COURTS IN HOUSTON, HARRIS COUNTY, TEXAS.
The arbitration will be held in Houston, Texas before a single arbitrator and administered by the Houston, Texas office of the American Arbitration Association ("AAA") under its Commercial Arbitration Rules and Mediation Procedures ("Commercial Rules") including, if appropriate, the Procedures for Large, Complex Commercial Disputes, the International Commercial Arbitration Supplementary Procedures and the Supplementary Rules for Class Arbitrations.
The arbitrator will have exclusive authority to resolve any disagreement relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available under Law. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
Except for the exchange of relevant, material and non-privileged documents between the parties, there shall be no interrogatories, depositions or other discovery in any arbitration hereunder.
The statute of limitations to file any Dispute shall be 6 months from the date the facts, events, transactions or occurrence giving rise to the Dispute occurred. If not brought within 6 months after the event or occurrence giving rise to the Dispute, the Dispute shall be permanently barred.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
b. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Any attempt to assign or otherwise transfer in violation of this section is void ab initio. You agree that we may assign or transfer our rights and obligations under this Agreement: (i) in connection with a merger, consolidation, acquisition or sale of all or substantially all of our assets or similar transaction; or (ii) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for eINDUSTRIFY as the party to this Agreement. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. eINDUSTRIFY retains the right to immediately halt any of Your Transactions, prevent or restrict access to the Site or take any other action to restrict access to or availability of any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise prohibited by applicable policies or agreements. eINDUSTRIFY is not your agent (except for the limited purpose processing transactions where applicable) or the customer’s agent for any purpose. eINDUSTRIFY will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction.
c. eINDUSTRIFY will provide notice to you under this Agreement by posting changes to the applicable eINDUSTRIFY Site to which the changes relate, by sending you an email notification, or by similar means. You must send all notices and other communications relating to eINDUSTRIFY to our Selling Partner Support team via email, the Contact Us form, or similar means at vendorsupport@eINDUSTRIFY.com. We may also communicate with you electronically and in other media, and you consent to such communications. You may change your e-mail addresses and certain other information as applicable. You will ensure that all of your information is up to date and accurate at all times.
d. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions. It is the express wish of the parties that this Agreement and the applicable Site Terms and Program Policies have been drafted in English. We may make available translations to this Agreement and the Site Terms, but the English version will control. This Agreement represents the entire agreement between the parties with respect to the Site and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings.
e. No failure or delay by either party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder. This Agreement represents the entire understanding and agreement of the parties regarding the subject matter hereof and supersedes all prior agreements between the parties regarding the matters contained herein. The parties agree that no rule of contract construction or interpretation will be applied for or against either party. In the event of any legal or equitable proceedings involving or relating to this Agreement, the prevailing party shall be entitled to receive from the nonprevailing party, in addition to any legal or equitable relief awarded to the prevailing party, all of the costs and expenses (including but not limited to filing and court costs, expert witness fees and reasonable attorney’s fees) incurred by the prevailing party in any such proceedings (including any appeal(s) and/or other proceedings relating thereto).
Definitions
As used in this Agreement, the following terms have the following meanings:
"Affiliate" means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.
"Confidential Information" means information relating to us, to the Site, or eINDUSTRIFY customers that is not known to the general public including, but not limited to, any information identifying or unique to specific customers; reports, insights, and other information about the Site; data derived from the Site except for data (other than customer personal data) arising from the sale of Your Products comprising of products sold, prices, sales, volumes and time of the transaction; and technical or operational specifications relating to the Site. For the purposes of this Agreement, customer personal data constitutes Confidential Information at all times.
"Content" means copyrightable works under applicable Law and content protected by database rights under applicable Law.
“Force Majeure Events” means weather or climate related events, war, civil strife, protests, riots, labor shortages, labor strikes, supply chain interruption, governmental or judicial order or interference, insurrection, pandemics, epidemics other medical or disease related events, power interruptions, computer viruses, hacks, security breaches, disruption in internet services, and all other events, occurrences or circumstances reasonably deemed by us to be out of our reasonable control.
"Governing Courts" means the exclusive jurisdiction of the state or federal courts located in Houston, Harris County, Texas.
"Governing Laws" means the laws of the State of Texas, United States, without regard to its conflicts of law principles, or any substantive law that would result in the application of any law other than the State of Texas.
"Insurance Limits" means One Million U.S. Dollars ($1,000,000).
"Intellectual Property Right" means any patent, copyright, Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.
"Law" means any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or in the future in effect, of any governmental authority (e.g., on a federal, state, or provincial level, as applicable) of each competent jurisdiction.
"Order Information" means, with respect to any of Your Products ordered through the Site, the order information and shipping information that we provide or make available to you.
"Person" means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division, or other cognizable entity, whether or not having distinct legal existence.
"Sales Proceeds" means the gross proceeds from any of Your Transactions, including (a) all shipping and handling, gift wrap and other charges; (b) taxes and customs duties to the extent applicable; and (c) in the case of invoiced orders, any amounts that customers fail to pay to us or our Affiliates on or before the applicable invoice due date.
"Site" means URL www.eINDUSTRIFY.com.
"Site Terms" means the Site terms and all applicable policies and agreements related thereto, which are made part of this Agreement upon the date you elect to register for or use the applicable Site, and any subsequent modifications we make to those terms.
"Technology" means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) software, hardware, code, technology, or other functional item.
"Trademark" means any trademark, Site mark, trade dress (including any proprietary "look and feel"), trade name, other proprietary logo or insignia, or any other source or business identifier, protected or protectable under any Laws.
"Your Materials" means all Technology, Your Trademarks, Content, Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to eINDUSTRIFY or its Affiliates.
"Your Personnel" means any third party warranting, administering or otherwise involved in the offer, sale, performance, or fulfillment of Your Products, including any of your employees, representatives, agents, contractors, or subcontractors.
"Your Product" means any product or service that you: (a) have offered on the Site; (b) have made available by advertising through the Site; or (c) have fulfilled or otherwise processed through the Site.
"Your Taxes" means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption, and other taxes, regulatory fees, levies or charges and duties assessed, incurred, or required to be collected or paid for any reason (a) in connection with any advertisement, offer or sale of products or Site by you on or through or in connection with the Site; (b) in connection with any products or Site provided for which Your Products are, directly or indirectly, involved as a form of payment or exchange; or (c) otherwise in connection with any action, inaction, or omission of you or your Affiliates, or any Persons providing products or Site, or your or their respective employees, agents, contractors, or representatives, for which Your Products are, directly or indirectly, involved as a form of payment or exchange. Also, if the Elected Country is the United States, Mexico, or Canada as it is used in the Fulfillment by eINDUSTRIFY Site Terms, this defined term also means any of the types of taxes, duties, levies, or fees mentioned above that are imposed on or collectible by eINDUSTRIFY or any of its Affiliates in connection with or as a result of fulfillment Site including the storage of inventory or packaging of Your Products and other materials owned by you and stored by eINDUSTRIFY, shipping, gift wrapping, or other actions by eINDUSTRIFY in relation to Your Products pursuant to the Fulfillment by eINDUSTRIFY Site Terms.
"Your Trademarks" means Trademarks of yours that you provide to us: (a) in non-text form for branding purposes; and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.
"Your Transaction" means any sale of Your Product(s) through the Site.
Selling on eINDUSTRIFY Terms
The Site allows you to offer certain products and services for sale.
BY REGISTERING FOR OR USING THE SITE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE TERMS.
S-1 Your Product Listings and Orders.
S-1.1 Products and Product Information. You will provide accurate and complete Required Product Information for each product or Site that you offer through the Site and promptly update that information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Materials, Your Products (including packaging) and your offer and subsequent sale of any of the same on the Site comply with all applicable Laws (including all minimum age, marking and labeling requirements) and do not contain any sexually explicit (except to the extent expressly permitted under our applicable policies), defamatory or obscene materials. You may not provide any information for, or otherwise seek to offer any Excluded Products on the Site; or provide any URL Marks for use, or request that any URL Marks be used, on the Site. If you offer a product for sale on the Site that requires a warning under California Health & Safety Code Section 25249.6 (a “Proposition 65 Warning”) you (a) will provide us with such warning in the manner specified in our policies, (b) agree that our display of a Proposition 65 Warning on a product detail page is confirmation of our receipt of that warning, and (c) will only revise or remove a Proposition 65 Warning for a product when the prior warning is no longer legally required.
S-1.2 Product Listing; Merchandising; Order Processing. We will enable you to list Your Products on the Site, and conduct merchandising and promote Your Products in accordance with the Agreement. We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller and eINDUSTRIFY may make these ratings and feedback publicly available. We will provide Order Information to you for each order of Your Products through the Site. We will also receive all Sales Proceeds on your behalf for each of these transactions and will have exclusive rights to do so and will remit them to you in accordance with these Site Terms. We may permit certain customers to place invoiced orders for Your Products, in which case remittance of Sales Proceeds may be delayed according to each customer’s invoicing terms. You will accept and fulfill invoiced orders in the same manner as you accept and fulfill non-invoiced orders, except as otherwise provided in this Agreement.
S-1.3 Shipping and Handling Charges. For Your Products ordered by customers on or through the Site, you will determine the shipping and handling charges subject to our shipping policies and standard functionality. You will accept shipping and handling charges quoted for Your Products collected by us as payment in full for your shipping and handling.
S-1.4 Credit Card Fraud and Unpaid Invoices. You will bear the risk of (a) all fraud including credit card fraud (i.e., a fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information) occurring in connection with Your Transactions, and b) late payments or defaults by customers in connection with invoiced orders for Your Products.
S-2 Sale and Fulfillment; Refunds and Returns
S-2.1 Sale and Fulfillment. You will: (a) source, offer, sell and fulfill Your Products, in each case in accordance with the terms of the applicable Order Information, this Agreement, and all terms provided by you or us and displayed on the Site at the time of the order and be solely responsible for and bear all risk for those activities; (b) package each of Your Products in a commercially reasonable manner complying with all applicable packaging and labeling requirements and ship each of Your Products on or before its Expected Ship Date; (c) retrieve Order Information at least once each business day; (d) only cancel Your Transactions as permitted pursuant to your terms and conditions appearing on the Site at the time of the order or as may be required under this Agreement; (e) fulfill Your Products throughout the Elected Country (except to the extent prohibited by Law or this Agreement); (f) include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of Your Products; and (g) identify yourself as the seller of each of Your Products on all packing slips or other information included or provided in connection with Your Products and as the Person to which a customer may return the applicable product.
S-2.2 Cancellations, Returns, and Refunds. You will promptly accept, calculate, and process cancellations, returns, refunds, and adjustments in accordance with your terms of sale. We will not calculate or process cancellations, returns, refunds, and adjustments for the benefit of your customers.
S-3 Problems with Your Products
S-3.1 Delivery Errors and Nonconformities; Recalls. You are fully responsible for any non-performance, non-delivery, misdelivery, theft, or other mistake or act in connection with the fulfillment of Your Products. You are also responsible for any non-conformity or defect in, any public or private recall of, or safety alert of any of Your Products or other products provided in connection with Your Products. You will notify us promptly as soon as you have knowledge of any public or private recalls, or safety alerts of Your Products or other products provided in connection with Your Products.
S-4 Compensation
All registration and related fees due to eINDUSTRIFY will be paid in advance each month. Fees for each sale will be paid on the completion of each sale.
S-5 The Site.
eINDUSTRIFY has the right to determine, the design, content, functionality, availability and appropriateness of the Site, selection, and any product or listing on the Site, and all aspects of the Site, including your use of the same. eINDUSTRIFY may assign any of these rights or delegate any of its responsibilities.
S-6 Continuing Guarantees
Guarantees. We require the following continuing guarantees from you.
S-6.1 Pesticides. If any of Your Products is a “pesticide” being offered or sold in the United States or other product regulated under the U.S. Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) or its implementing regulations, then you provide to us the following continuing guaranty that: (a) you are a resident of the United States; and (b) with respect to each such product, the pesticides and other FIFRA regulated products comprising each sale, shipment, or other delivery made previously or hereafter are: (i) lawfully registered with the US Environmental Protection Agency at the time of sale, shipment, or delivery, or fully qualified for a specific exemption from the FIFRA registration requirements at the time of sale, shipment, or delivery, (ii) compliant with all requirements of FIFRA and its implementing regulations at the time of sale, shipment, or delivery, and (iii) provided by you in the original, unbroken packaging.
Selling on the Site Definitions
"Purchase Price" means the total amount payable or paid for Your Product (including taxes and shipping and handling charges).
"Required Product Information" means, with respect to each of Your Products the following (except to the extent expressly not required another eINDUSTRIFY policy or agreement): (a) description, including as applicable, location-specific availability and options, scheduling guidelines and Site cancellation policies; (b) SKU and UPC/EAN/JAN numbers, and other identifying information as eINDUSTRIFY may reasonably request; (c) information regarding in-stock status and availability, shipping limitations or requirements, and Shipment Information (in each case, in accordance with any categorizations prescribed by eINDUSTRIFY from time to time); (d) categorization within each eINDUSTRIFY product category and browse structure as prescribed by eINDUSTRIFY from time to time; (e) digitized image that accurately depicts only Your Product, complies with all eINDUSTRIFY image guidelines, and does not include any additional logos, text or other markings; (f) Purchase Price; (g) shipping and handling charge (in accordance with our standard functionality); (h) any text, disclaimers, warnings, notices, labels, warranties, or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising, or sale of Your Product; (i) any vendor requirements, restocking fees or other terms and conditions applicable to such product that a customer should be aware of prior to purchasing the product; (j) brand; (k) model; (l) product dimensions; (m) weight; (n) a delimited list of technical specifications; (o) SKU and UPC/EAN/JAN numbers (and other identifying information as we may reasonably request) for accessories related to Your Product that is available in our catalog; (p) the state or country Your Product ships from; and (q) any other information reasonably requested by us (e.g., the condition of used or refurbished products; and invoices and other documentation demonstrating the safety and authenticity of Your Products).
"Shipment Information" means, with respect to any of Your Products, the estimated or promised shipment and delivery date.
"URL Marks" means any Trademark, or any other logo, name, phrase, identifier, or character string, that contains or incorporates any top level domain (e.g., .com, .edu, .ca, .fr, .jp) or any variation of a top level domain (e.g., dot com, dotcom, net, or com).
"Your Transaction" means of all your transactions on or through the Site.
P-1 Payments Processing Agency Appointment
For non-invoiced orders, you authorize eINDUSTRIFY to act as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, receiving and holding Sales Proceeds on your behalf, remitting Sales Proceeds to Your Bank Account, charging Your Credit Card, and paying eINDUSTRIFY and its Affiliates amounts you owe in accordance with this Agreement or other agreements you may have with eINDUSTRIFY Affiliates. For invoiced orders, you authorize: (a) eINDUSTRIFY to act as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, and receiving and holding Sales Proceeds on your behalf; and (b) eINDUSTRIFY to act as your agent for purposes of remitting Sales Proceeds to Your Bank Account, charging Your Credit Card, and paying eINDUSTRIFY and its Affiliates amounts you owe in accordance with this Agreement or other agreements you may have with eINDUSTRIFY Affiliates. eINDUSTRIFY is a “eINDUSTRIFY Payments Agent”. The applicable eINDUSTRIFY Payments Agent provides the Site described in these Transaction Processing Site Terms and the related Site described in Sections S-1.4, S-2.2, S-5, and F-8.3 of the Agreement (collectively, the "Transaction Processing Site").
When a buyer instructs us to pay you, you agree that the buyer authorizes and orders us to commit the buyer's payment (less any applicable fees or other amounts we may collect under this Agreement) to you. You agree that buyers satisfy their obligations to you for Your Transactions when we receive the Sales Proceeds. We will remit funds to you in accordance with this Agreement.
P-2 Remittance
Subject to Section 2 of this Agreement, the applicable eINDUSTRIFY Payments Agents will remit funds to you in accordance with Section S-5 of the Agreement and these Transaction Processing Site Terms. Each applicable eINDUSTRIFY Payments Agent's obligation to remit funds collected or received by it or otherwise credited to your available balance in connection with Your Transactions is limited to funds in your available balance that have become available in accordance with this Agreement less amounts owed to eINDUSTRIFY and any taxes that eINDUSTRIFY automatically calculates, collects and remits to a tax authority according to applicable law, subject to chargeback or reversal or withheld for anticipated claims in accordance with this Agreement. Without limiting eINDUSTRIFY's rights to collect any amounts you owe, the applicable eINDUSTRIFY Payments Agent's receipt of Sales Proceeds or crediting of Sales Proceeds to your available balance discharges your obligation to pay applicable fees and other amounts under this Agreement to the extent the Sales Proceeds received or credited equal or exceed the fees and other amounts you owe and the Sales Proceeds are applied to the payment of those fees and amounts.
P-3 Your Funds
Your Sales Proceeds will be held in an account with the applicable eINDUSTRIFY Payments Agent (a "Seller Account") and will represent an unsecured claim against that eINDUSTRIFY Payments Agent. Your Sales Proceeds are not insured by the Federal Deposit Insurance Corporation, nor do you have any right or entitlement to collect Sales Proceeds directly from any customer. Prior to disbursing funds to you, an eINDUSTRIFY Payments Agent may combine Sales Proceeds held with the funds of other users of the Site, invest them, or use them for other purposes permitted by applicable Laws. You will not receive interest or any other earnings on any Sale Proceeds. To the extent required by applicable Laws, an eINDUSTRIFY Payments Agent will not use any funds held on your behalf for its corporate purposes, will not voluntarily make such funds available to its creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit its creditors to attach such funds.
P-4 Verification
We may at any time require you to provide any financial, business or personal information we request to verify your identity. You authorize us to obtain from time to time consumer credit reports to establish or update your Seller Account or in the event of a dispute relating to this Agreement or the activity under your Seller Account. You agree to update all Seller Account information promptly upon any change. The eINDUSTRIFY Payments Privacy Notice applies to transactions processed by Stripe on behalf of eINDUSTRIFY.
P-5 Dormant Accounts
If there is no activity (as determined by us) in connection with your Seller Account for the period of time set forth in applicable unclaimed property laws and we hold Sales Proceeds on your behalf, we will notify you by means designated by us and provide you the option of keeping your Seller Account open and maintaining the Sales Proceeds in your Seller Account. If you do not respond to our notice(s) within the time period we specify, we will send the Sales Proceeds in your Seller Account to your state of residency, as determined by us based on the information in your Seller Account. If we are unable to determine your state of residency or your Seller Account is associated with a foreign country, your funds may be sent to the State of Texas.
