Vendor Terms and Conditions Agreement
registering to sell on the Uvipin Marketplace and any related websites and
applications owned or operated by or on behalf of Uvipin (collectively, the «
you as an individual, or the company on behalf of which you are registering,
(referred to herein as «
Seller») agree to be bound by these Uvipin
Marketplace Terms and Conditions (collectively, with any Attachments or
Exhibits, the «
Agreement»), which are by and between Uvipin International
Inc.(together with its affiliates, «
Uvipin») and Seller (each, a «Party»
and collectively, the «
Parties»). This Agreement is effective as of
latest of (i) the date Seller registers for the Websites via the Portal or
otherwise accepts the Agreement and (ii) the Agreement is posted to the Seller
Portal (the «
Effective Date»). Capitalized terms not defined in this
Agreement will have the meanings given to them in Appendix A.
The original language of this Agreement
is English. Uvipin may make translations available for convenience. In case of
conflicts between the original English version and any translation, the English
version shall prevail.
I) UVIPIN' RESPONSIBILITIES.
A. Websites Hosting and
. Uvipin will provide
Seller with access to the Websites as a platform for Seller to post Merchandise
Listings and facilitate the sale of Seller's Merchandise to Users. Uvipin will
be responsible for all operating functions of the Websites. Uvipin may, in its
sole discretion, (i) ask Users to rate and/or provide comments regarding
Merchandise and/or Seller's performance, using any metrics determined by Uvipin
in its sole discretion, and (ii) post any resulting ratings and/or comments on
the Websites for public display.
B. User Orders and Payment. Uvipin will process User
Orders (as defined in Section II.C.1) and collect all amounts due from Users
for Merchandise ordered from Seller through the Websites. Within fifteen (15)
days thereafter, Uvipin will remit such amounts, less any amounts owed to Uvipin
by Seller, by electronic funds transfer to Paypal or the bank account identified by
Seller in the Portal. Seller hereby appoints Uvipin as an agent of Seller for
the sole and express purpose of receiving payments from Users for Seller's
Merchandise sold on the Websites. Seller acknowledges that, as between Seller
and a User who purchases Merchandise from Seller, Uvipin' receipt of funds from
the User is deemed the receipt of funds by Seller.
II) SELLER'S RESPONSIBILITIES.
A. Enrollment; Account
Seller will provide the information requested on the Portal during Account
activation, and agrees to update such information promptly. Seller will not use
or incorporate any Uvipin Mark, in whole or in part, in Seller's account name
or any other User-facing identification. Seller agrees to secure the password
used to access its Account and not to disclose it to any third party (other
than any authorized third-party service providers to Seller). Seller acknowledges
and agrees to be strictly liable for all uses or actions occurring through the
B. Merchandise Listings. Seller will create
Merchandise Listings via the Portal for all Merchandise it intends to sell on
the Websites. All Merchandise Listings will comply with the specifications and
policies posted in the Portal, and such Merchandise Listings will not use or incorporate
any Uvipin Marks. Seller is responsible for promptly updating its Merchandise
Listing(s) to ensure the Merchandise Listing and inventories are at all times
accurate. Seller will not list any Merchandise it does not currently have in
stock. Seller acknowledges that failure to abide by the terms of this Agreement
may subject Seller to penalties and legal liability, and that Uvipin may
reject, remove or censor any Merchandise Listing for any reason, in Uvipin'
1. Merchandise Pricing. Seller is responsible to establish
prices for its Merchandise. Seller will enter pricing via the Portal, unless
another method is approved in writing by Uvipin.
a. Most Favorable, Best
Pricing or Equivalent Pricing
. Seller will maintain
parity between the Merchandise and identical merchandise offered through
Seller's other sales distribution channels, including Seller's own website(s)
or any third-party website(s). For avoidance of doubt, the term 'parity' as
used herein means that sales prices, product quality (including quality
assurances), and shipping and handling charges associated with a Merchandise
Listing (including any 'low price' guarantees, rebates, free or discounted
shipping and handling, or other benefits) are equivalent to those associated
with identical Merchandise offered by Seller on the Websites.
b. Seller Pricing Errors. If Seller uploads or
otherwise provides incorrect pricing information to a Merchandise Listing (a «
»), Uvipin may, at Seller's expense, take any commercially
reasonable action necessary to avoid and/or repair harm to Uvipin due to the
Seller Pricing Error. Such action may include requiring Seller to honor all
Merchandise purchases occurring due to Seller Pricing Errors and compensating
Users for any inconvenience caused by such errors. Seller will also reimburse Uvipin
for all costs Uvipin incurs directly as a result of Seller Pricing Errors.
2. Prohibited Merchandise. Unless otherwise
expressly permitted in writing by Uvipin, Seller will not promote, offer for
sale, or provide Uvipin with Merchandise Listings that (a) contain any
Prohibited Merchandise, (b) promote or engage in any deceptive trade practice
(including spoofing, slamming, cramming, phishing, attempting to scam or
defraud a User into surrendering private and/or personal information); or (c)
promote or engage in any other illegal activity.
3. Permits and Licenses;
. Seller will, at its own
expense, obtain all permits and licenses required to operate its business in
accordance with Applicable Law, and will pay and discharge all applicable taxes
and assessments which may be due for selling or offering of its Merchandise for
sale on or through the Websites. It is Seller's responsibility to determine the
states in which it has an obligation to collect and remit state and local sales
and use taxes («
Taxes»). Seller will promptly notify Uvipin of the
states for which Uvipin should collect Taxes by affirmatively selecting the
applicable states in the Seller's business account profile in the Portal. Uvipin
will pay over the Taxes collected from the online purchaser directly to the
Seller and Seller will be solely responsible for remitting the tax to the
applicable taxing jurisdiction. If a taxing authority requires Uvipin to pay
any of Seller's taxes, Seller will promptly reimburse Uvipin for the amounts
paid. Seller acknowledges and agrees that tax-related data is provided through Uvipin'
third-party service provider(s) («
Providers»). While Providers will use
reasonable efforts to ensure that the tax data is current and accurate, Seller
acknowledges and agrees that Uvipin and its Providers do not provide tax
advice, and that Seller is solely responsible for determining the applicability
and accuracy of any tax data. As a condition of receiving the tax data, Seller
agrees to fully and forever waive any Liabilities against the Uvipin Parties
and the Provider Parties arising from Seller's use of and reliance on such tax
data and further agrees to defend, indemnify and hold the Uvipin Parties and
the Provider Parties harmless from Liabilities arising from such use or
C. Shipping. Seller is responsible for all aspects of
shipping, including providing adequate packaging, tagging, labeling and packing
of the Merchandise in compliance with the Seller Specifications and Applicable
1. Process. When Seller receives
notice of an order from a User (a «
User Order») at the e-mail address
specified by Seller in the Portal, Seller will process and fulfill the User
Order in compliance with the Seller Shipping and Delivery Policy, and will make
the Merchandise requested in a User Order («
available for pick up by a common carrier to deliver to the applicable User.
Seller will not substitute any item(s) for the Requested Merchandise. Title to
and risk of loss of and/or damage to the Requested Merchandise will remain with
Seller until delivery to the User. Uvipin will not have title to, or deemed the
legal owner of, any Merchandise at any time under the terms of this Agreement.
Seller may not include any marketing, promotional materials, or any other
solicitations with the Requested Merchandise shipped to Users.
2. Overdue Orders. Uvipin may cancel any
User Order that fails for any reason to ship within the applicable shipping
period indicated in the Seller Specifications, and Uvipin will have no duty to
compensate Seller for any such cancelled orders. It is Seller's responsibility
to monitor all orders and ensure all shipments are made within the timeframes
indicated in the Seller Specifications.
3. Delivery Errors,
Seller is responsible for any non-delivery, delivery error, mistake, theft or
act in connection with the fulfillment and delivery of its Merchandise, except
to the extent caused by Uvipin' failure to properly process a User's address
verification in the course of the purchase of the Merchandise.
4. Additional Delivery
With the written consent of Uvipin, Seller may provide more extensive shipping
services, such as delivery within the home or User premises, and/or
installation services for Merchandise sold pursuant to this Agreement. In such
case, Seller (a) will maintain general liability insurance, vehicle insurance,
and worker's compensation insurance in such amounts set forth in the
Marketplace Vendor Guide and (b) will not permit any of its Personnel or
subcontractors to enter the premises or residences of Users until they have
passed the drug testing and background check requirements specified in the
Marketplace Vendor Guide.
D. User Service Issues. Seller will resolve
all User service issues arising from, or in connection with Seller's promotion,
sale, order fulfillment and/or delivery of Merchandise. Uvipin will direct
Users who contact it with service issues related to Merchandise sold pursuant
to this Agreement to contact Seller via the contact information Seller has
provided in the Portal. If Seller fails to respond to User service issues, or
requests from Uvipin related to same, Uvipin may take any actions necessary to
ensure compliance, up to and including suspending Seller's access to their
Account. In the event that Uvipin believes in its sole discretion that a
transaction represents fraudulent activity, Uvipin may, but is not obligated
to, prohibit the transaction. Uvipin will not be liable to Seller for any such
action results in or prevents a User from completing an order or causes a User
to cancel an order.
E. Chargebacks. If Uvipin notifies
Seller of a User chargeback or chargebacks received due to non-delivery, or
other dispute related to Seller's transactions, Seller must present Uvipin with
all information requested in the chargeback notification within five (5)
business days of receiving notice. If Seller fails to comply with Uvipin'
request, Seller will reimburse Uvipin for the User chargeback(s) in accordance
with the settlement and payment terms herein. Notwithstanding the other
provisions of this paragraph, Seller will not be responsible for chargebacks
due to (a) theft and/or unauthorized use of a third party's credit card
information for which Uvipin is responsible (except to the extent such theft
and/or unauthorized use is attributable to Seller), and (b) non-delivery due to
Uvipin' failure to send the order information to Seller.
F. Seller Marketing;
Restrictions; Prohibition on use of User Information
. Seller (or any of its
affiliates or related parties) may not directly or indirectly disclose or use
any User information or other transaction information, except as necessary to
fulfill its fulfillment and customer service obligations under this Agreement.
Seller may not use any User information for any of its own marketing or
promotional activities. To the extent Seller obtains User information outside
of its relationship with Uvipin or the Websites, the terms of this section will
not prevent Sellers from using such User information, provided that Seller may
not explicitly target Users on the basis of their purchases or presence on the
G. Refunds; Returned Merchandise. Seller will submit a return policy (the
Seller Return Policy») using the form provided on the Portal. The
Seller Return Policy must (i) apply to all Merchandise, (ii) outline the
process for Users to return the Merchandise directly to Seller, and (iii) be at
least as accommodating to User returns as the Uvipin Return Policy. Seller
agrees to honor all User returns in accordance with the Seller Return Policy
published at the time of the User's purchase of Merchandise.
H. Recalled Merchandise;
. Seller will immediately notify Uvipin of any recalls
affecting the Merchandise it has listed on Uvipin Marketplace. Notwithstanding
the foregoing Seller is responsible for all defective or recalled Merchandise,
including any costs associated with recalls of its Merchandise, all liability
related to its Merchandise (regardless of whether such Merchandise is
defective), and will bear all costs associated in notifying Users and handling
such recalls of its Merchandise.
III) FEES AND COMMISSIONS.
A. Monthly Subscription Fee. Uvipin will charge
Seller's credit card or via Electronic Funds Transfer on the first business day
of each calendar month in the amount of the current Monthly Subscription Fee,
as specified in the Portal and subject to change. Any revised Monthly
Subscription Fee will be effective as of the date posted. Seller agrees that
failure to pay its Monthly Subscription Fee may result in a breach of this
Agreement, removal of Merchandise Listings and/or suspension of access to the
B. Commissions. Seller will pay
commissions to Uvipin according to the «Commission Rate Schedule» available in
the Portal, which is subject to change. Any revised Commission rates are
effective as of the date posted.
C. Right of Recoupment and
Uvipin and Seller acknowledge and agree that Uvipin has the right to recoup or
set-off any payments owed to Seller by the amount of any Monthly Subscription
Fees, commission payments, Seller obligations owed according to the defense and
indemnity terms herein, and any other monetary obligations owing by Seller to Uvipin.
Any remaining outstanding funds due to Uvipin after recoupment or set-off will
be paid by Seller promptly upon demand by Uvipin.
Uvipin may obtain reimbursement of any amounts owed by
Seller to Uvipin by deducting from future payments owed to Seller, reversing
any credits to Seller's account, charging Seller's credit card, or seeking such
reimbursement from Seller by any other lawful means. Seller hereby authorizes Uvipin
to use any or all of the foregoing methods to seek reimbursement, including the
debiting of Seller credit card or bank account.
IV) INTELLECTUAL PROPERTY.
A. Grant of License by Uvipin. Uvipin hereby grants
to Seller a non-exclusive, revocable, non-transferable license to promote and
sell Merchandise on or through the Websites to Users, subject to the terms of
B. Grant of License by
Seller hereby grants to Uvipin a royalty-free, non-exclusive, irrevocable,
perpetual, worldwide, royalty-free, right to use and to
reproduce, modify, display, distribute, perform, re-format, create derivative
works of or otherwise commercially or non-commercially exploit in any manner
the Seller Content and Merchandise Listings with the right to sublicense such
rights through multiple tiers; provided however that Uvipin will not alter any
Seller Marks from the forms provided by Seller except to the extent necessary
for presentation, so long as the relative proportions of the marks remain the
same; provided further than nothing in this Agreement will restrict Uvipin'
right to use the Seller Content to the extent such use is allowable without a
license from Seller under Applicable Law.
C. Intellectual Property
All right, title and interest in and to the Websites, and all data collected or
stored in connection with the Websites and any other Uvipin websites, any of
their affiliates' websites, Local Marketplace, and any other service or website
associated with the foregoing, including mobile sites or microsites, and all IP
Rights associated with any of the foregoing, will at all times remain the
exclusive property of Uvipin, and except as expressly provided herein, nothing
will be construed as conferring on Seller any license to Uvipin' IP Rights,
whether by estoppel, implication or otherwise. If Seller is deemed to have any
ownership interest or rights in any of the foregoing, or any part thereof, then
Seller will assign, and Seller does hereby assign, all of such ownership
interest and rights to Uvipin, including all Seller IP Rights therein. All
rights not expressly granted herein are reserved to Uvipin.
D. Ownership of Content. Uvipin and Seller each
agree and acknowledge that, as between Uvipin and Seller, Seller owns all
Seller Content and Seller Marks, subject to the License granted herein.
V) TERM AND TERMINATION.
A. Term. The term of this
Agreement will commence on the Effective Date, and will continue in effect
until such time as revised by Uvipin, or terminated by either Party in
accordance with the notice and termination requirements set forth below (the «
B. Termination. Seller may terminate
this Agreement at any time upon seven (7) business days' notice to Uvipin, in
which case Seller will process and fulfill all open orders until the
termination is effective. Uvipin may terminate this Agreement (i) at any time
upon notice to Seller; or (ii) if Uvipin determines in its discretion that
Seller has breached any term of this Agreement, immediately, including the
right to cancel all open User orders for the Merchandise, and to remove all of
Seller's Merchandise Listings from the Websites.
C. Survival. Any termination of
this Agreement will be without prejudice to the rights of either Party against
the other in respect of any antecedent claim or breach of any of the provisions
of this Agreement. Any obligations of the Parties relating to limitations on
liability, confidentiality and indemnification, as well as any other
obligations under this Agreement that by their nature are intended to survive,
including any payment or User services obligation in connection with the sale
of Merchandise hereunder, will survive termination of this Agreement.
VI) REPRESENTATIONS AND
A. Mutual. Each Party represents
and warrants that: it has the authority to enter into the Agreement and to
perform the acts required of it; and the execution of this Agreement by each
Party, and the performance by such Party of its obligations and duties, does
not and will not violate any other agreement to which such Party is otherwise
B. Seller. Seller further
represents and warrants that:
1. The Seller Listings and
all information and Seller Content provided to Uvipin is accurate, complete,
current, and is not misleading or deceptive in any manner;
2. The publication,
reproduction, display, modification, distribution or transmission of Seller
Content or a Merchandise Listing does and will not (a) infringe, misuse,
dilute, misappropriate, or otherwise violate any intellectual property rights
of third parties, including copyright, patent, trademark, trade secret, domain
name, right of publicity, or confidentiality or other proprietary rights (b)
contain defamatory or discriminatory content, (c) constitute an invasion of a
party's rights of privacy or publicity; and/or (d) reflect unfavorably on Uvipin,
the Websites and/or other Sellers on the Websites;
3. Seller will at all times
fully comply with Applicable Law, including applicable privacy laws;
4. Seller will include in
Merchandise Listings all disclosures associated with the Merchandise as
required by Applicable Law;
5. All Merchandise sold pursuant
to this Agreement is not subject to any health, safety or product quality
6. Seller will perform all
of its obligations hereunder in a professional and commercially reasonable
manner, in accordance with generally accepted industry standards;
7. Seller will maintain at a minimum such
product liability insurance coverage limits, general liability, vehicle, and
worker's compensation coverage limits as required by Applicable Law to operate
8. All information or data
uploaded or transmitted by or on behalf of Seller to the Portal, Websites, or
any other Uvipin website, application, or system, or to a User is free from any
virus, worm, defect, Trojan horse, software bomb or other feature designed to
damage or degrade in any manner the performance of the Portal, Websites, any
other Uvipin website, application, or system. Seller will not use the Websites
to violate the security of, or gain unauthorized access to, any computer or
computer network or other device or system (including unauthorized attempts to
discover passwords or security encryption codes to use any robot, spider, site
search/retrieval application, or other device to retrieve or index any portion
of the Websites, collect any information about other Users (including usernames
and/or email addresses); or to reformat or frame any portion of the Websites),
or use the Websites and/or any other Seller Content, intentionally or
unintentionally, to violate any Applicable Law.
. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, UVIPIN
MAKES NO WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED WITH REGARD TO THE WEBSITES, ANY SERVICES, AND/OR
INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH ANY LINKS THEREON,
INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE
OF DEALING, USAGE OR TRADE PRACTICE. THE WEBSITES ARE PROVIDED BY UVIPIN ON AN
"AS IS" AND «AS AVAILABLE» BASIS AND SELLER'S USE OF THE WEBSITE IS
SOLELY AT SELLER'S OWN RISK. UVIPIN DOES NOT WARRANT THAT SELLER'S USE OF THE
WEBSITES WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, NOR DOES UVIPIN MAKE
ANY WARRANTY OR GUARANTEE WITH REGARD TO RESULTS THAT MAY BE OBTAINED BY USE OF
THE WEBSITES, OR THE SALE OF ANY MERCHANDISE ITEMS BY SELLER TO USERS THEREON,
OR ANY SERVICES PROVIDED BY UVIPIN TO SELLER IN CONNECTION THEREWITH, INCLUDING
ANY WARRANTY WITH RESPECT ANY MERCHANDISE LISTING OR ANY RESULTS SELLER MAY
OBTAIN UNDER THIS AGREEMENT. THE FUNCTIONALITY PROVIDED BY THE WEBSITES OR UVIPIN,
OR ITS DESIGNEES' SERVERS IS NOT AN ARCHIVE; SELLER IS SOLELY RESPONSIBLE FOR
MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ALL INFORMATION,
INCLUDING SELLER CONTENT PROVIDED TO UVIPIN.
. IN NO EVENT WILL UVIPIN BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE
WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS), EVEN IF
IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL UVIPIN'
LIABILITY UNDER THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHER LEGAL
THEORY) BE GREATER THAN THE LESSER OF (I) $100 US DOLLARS OR (II) THE TOTAL
FEES PAID BY SELLER TO UVIPIN IN THE THIRTY (30) DAYS PRIOR TO THE DATE ON
WHICH ANY SUCH CLAIM AROSE.
IX) DEFENSE AND
A. Obligation. Seller will defend, and indemnify and
hold harmless the Uvipin Parties from and against all third-party Liabilities,
whether actual or alleged (even though such allegations may be false,
fraudulent or groundless), arising out of or relating to any of the following
(collectively, the «
Claims»): (i) infringement, misuse, dilution,
misappropriation, or other violation of any intellectual property rights of
third parties, including copyright, patent, trademark, trade secret, domain
name, right of publicity, or confidentiality or other proprietary rights; (ii)
death of or injury to any person, damage to any property, or any other damage
or loss, by whomsoever suffered, resulting or claimed to result in whole or in
part from any latent or patent defect in Merchandise, including improper
manufacture, construction, assembly, installation, repair, display, packaging,
service or design of Merchandise, failure of Merchandise to comply with any
specification or samples or with any express or implied warranties of Seller,
or any claim of strict liability in tort relating to Merchandise; (iii) any
violation by Seller (or its affiliates, or their respective Personnel of each
of them) in the manufacture, construction, assembly, installation, repair,
display, packaging, possession, service, design, use, delivery or sale of
Production or Sale») of any Applicable Law of the United
States, its territories or any other country in which the Production or Sale of
Merchandise took place; (iv) the publication of Seller Content and product
information Seller supplies to Uvipin to display in Merchandise Listings; (v)
the packaging, tagging, labeling, packing, shipping, delivery and invoicing of
Merchandise; (vi) failure to warn or to provide adequate warnings or
instructions in the use, assembly, service or installation of Merchandise;
(vii) the packaging, labeling or advertising claims made by Seller; (viii) the
display, assembly or installation of Merchandise, (ix) the assertion by a third
party of a security interest, right of replevin, or other legal interest
created by a factoring or other credit arrangement in any amount due Seller
under a vendor agreement; (x) a breach of any of the Seller's representations
and warranties contained herein; or (x) Taxes or the collection, payment or
failure to collect or pay Taxes. Notwithstanding the provisions of this
Paragraph, Seller will not be liable for damage to third parties to the extent
such damage was solely and proximately caused by the negligence or willful
misconduct of any Indemnified Party.
B. Process. In performing its
obligations under Section IX.A, Seller will retain defense counsel satisfactory
to Uvipin and will, from time to time, provide reports, consult with Uvipin'
Personnel in conducting the defense of the Claims and otherwise cooperate fully
with the reasonable requests of Uvipin; provided that only with respect to
claims arising under Section IX.A.(i) above, Uvipin may, at its election and at
any time, take control of the defense and investigation of said Claims and
employ attorneys and other consultants, investigators and experts of its own
choice to manage and defend any such Claims at the cost and expense of Seller.
In any case in which Seller's indemnity obligation set forth in Section IX.A is
not enforceable under Applicable Law and in which any Indemnified Party and
Seller are found to be liable to a third party with respect to Merchandise,
then Uvipin and Seller will each contribute to the payment of any judgment
awarded in favor of such third party in proportion to the comparative degree of
culpability of the Indemnified Parties and Seller.
C. Independent Obligation. The obligations of
Seller to defend, indemnify, and hold harmless the Indemnified Parties under
this Agreement are independent of each other and any other obligation of the
D. Settlement. Seller may settle,
without Uvipin' consent, Claims if the only obligation under such settlement is
the payment of monies by Seller and such settlement provides for a full release
of Seller and the Indemnified Parties. All other settlements, including any
that would create obligations of (or restrictions upon) the Indemnified Parties
or restrictions upon the sale (or disposition) of the Merchandise, will require
Uvipin' prior written consent.
E. Insurance Requirements. Seller will maintain
at a minimum such product liability insurance coverage limits as defined in the
Uvipin Marketplace Vendor Information Guide, available through the Portal. Such
policy must provide that the coverage thereunder will not be terminated without
at least thirty (30) days prior written notice to Uvipin.
A. Definition and
Confidential Information» means any and all technical or business data
or information furnished, in whatever form or medium, by Uvipin regardless of
whether marked or identified as «Confidential,» including Confidential Personal
Information (as defined below), the terms of this Agreement, and the operations
and technology to be utilized in connection with the Portal and Websites.
Seller agrees to: (i) treat as confidential, and preserve the confidentiality
of all Confidential Information and not disclose it to any third party; (ii)
use the Confidential Information solely for the purposes of this Agreement; and
(iii) not copy such Confidential Information unless authorized by Uvipin.
B. Treatment of
. The obligations with
respect to Confidential Information will not apply to any information that: (i)
is already in Seller's possession, as shown by documentation and without
obligation of confidentiality; (ii) without action or fault on Seller's part,
is or becomes publicly available; or (iii) Seller has obtained from a third
person without breach by such third person of an obligation of confidence.
Seller must promptly return or destroy all Confidential Information at Uvipin'
C. Confidential Personal
In addition to the obligations related to
Confidential Information, additional obligations apply to Confidential Personal
Information. All information related to Users, including names, addresses,
telephone numbers, account numbers, and demographic, financial and transaction
information is «
Confidential Personal Information.» Seller will not
duplicate or incorporate the Confidential Personal Information into its own
records or databases. Seller
will restrict disclosure
of Confidential Personal Information to its employees who have a need to know
such information to perform under this Agreement. Seller is liable for any
unauthorized disclosure or use of Confidential Personal Information by any of
its employees. Except as necessary to fulfill its Customer Service obligations
will not disclose the
Confidential Personal Information to any third party, including any affiliate
or subsidiary of Seller, permitted subcontractor, or other representative
without the prior written consent of Uvipin. Unless otherwise prohibited by law,
Seller will: (i) immediately notify Uvipin of any legal process served on
Seller for the purpose of obtaining Confidential Personal Information; and (ii)
permit Uvipin adequate time to exercise its legal options to prohibit or limit
such disclosure. Seller will notify Uvipin promptly upon the discovery of the
loss, unauthorized disclosure or unauthorized use of the Confidential Personal
Information and agrees to indemnify and hold Uvipin harmless for such loss,
unauthorized disclosure or unauthorized use of Confidential Personal
Information, including attorneys' fees.
D. No Publicity. Without limiting the
foregoing, Seller will not disclose the existence or terms of this Agreement or
any other information regarding Seller's sale of Merchandise on the Websites,
in any advertising, promotional or sales activity, publicity release, or other
public communication without Uvipin' prior written consent and approval in each
instance. Uvipin has the right to review and approve any press release,
marketing materials or related content that mentions Uvipin.
E. PCI Compliance. Seller acknowledges that
to the extent it receives any User credit card data in connection with the
Agreement, Seller is responsible for the security of the credit card data it
receives and will comply with current Payment Card Industry («
Security Standards (as updated by the PCI from time to time). In the event of a
data breach of a User's credit card information involving Seller or Seller's IT
system environment, Seller will immediately notify Uvipin and cooperate fully
with Uvipin and/or industry/government officials in a review and/or forensic
investigation of Seller's system environment and/or processes.
A. Use of Subcontractors. Seller may use
subcontractors in its performance under this Agreement, provided that (i)
Seller's subcontractors will be required to adhere to the terms of the
Agreement and (ii) Seller will be fully responsible for the acts and omissions
of its subcontractors. Uvipin may require Seller to cease use of any
subcontractor for any reason, and may immediately suspend Seller's account, or
terminate this Agreement in the event Seller refuses to comply with any such
request from Uvipin.
B. Force Majeure. Neither Party will be
liable to the other for any failure to perform its obligations under this
Agreement to the extent such failure is due to war, riots, embargoes, strikes
or other concerted acts of workers, casualties, accidents or other causes to
the extent that such failure and the consequences thereof are reasonably beyond
the control and without the fault or negligence of the Party claiming excuse.
C. Invalidity; Waiver. No finding that any
part of this Agreement is invalid will affect the remaining portions of this
Agreement. Seller may not assign or transfer any of its rights or obligations
under this Agreement without written consent from Uvipin. Any such attempted
assignment or transfer will be void, and Uvipin may immediately terminate this
Agreement, and Seller's access to the Portal without liability. The waiver by
any Party of a breach of any provision of this Agreement by the other Party,
will not be construed as a waiver of any subsequent breach of the same or any
other provision of this Agreement, nor will any delay or omission by either
Party to exercise or enforce any right or remedy hereunder operate as a waiver
of any right or remedy.
1. Unless otherwise noted
in the Agreement, Uvipin will provide notices to Seller at the address, email
address, or fax number provided by Seller to Uvipin at the time of enrollment.
2. Seller must send all
notices to Uvipin through the Portal.
E. Construction. This Agreement, the
policies and procedures communicated through the Portal, and the Marketplace
Vendor Guide, govern Seller's use of the Websites to sell Merchandise to Users.
In the event of a conflict between any terms herein, or any program specific
policies and procedures communicated to Seller via the Portal or the
Marketplace Vendor Guide, the program specific policies and procedures will
control. In the event the Seller is registered for several Marketplace Programs
(for example both the Fulfilled by Uvipin and Fulfilled by Merchant programs),
the applicable terms will govern Merchandise sold according to that Program
only. Uvipin may modify the terms and conditions of this Agreement, the
Marketplace Vendor Guide, or its policies and/or procedures at any time by posting changes on
the Portal. Seller's continued access and use of the Websites after such
posting will be construed as Seller's acceptance of such modifications made by Uvipin.
It is Seller's responsibility to monitor the terms and conditions of this Agreement
for changes from time to time. In some cases, Uvipin may, but is not obligated
to, provide Seller with notice of any changes to these Terms and Conditions. All notices provided by Uvipin
through the Portal, or any communications by email, fax, or any other form of
electronic communications by and between the Parties will satisfy any legal
requirement that such communications be in writing. In this Agreement,
«include,» «includes,» and «including» are inclusive and mean, respectively,
«include without limitation,» «includes without limitation,» and «including
F. Governing Law. This Agreement will be
construed and enforced in accordance with the internal laws of the State of Florida,
without regard to its conflict of law principles. Seller and Uvipin agree that
the state and/or federal courts located in Dade County, Florida are the proper
and exclusive venue for any dispute concerning this Agreement, and hereby
consent to such court's personal and subject matter jurisdiction thereof.
G. Relationship of Parties. The Parties to this Agreement are independent
contractors, and no other relationship will be implied from this Agreement.
Nothing contained in or done pursuant to this Agreement will be construed as
creating a partnership, agency, or joint venture, and neither Party will become
bound by any representation, statement, or act of the other Party. Seller is
responsible for all expenses necessary to fulfill its obligations under this
1. «Account» means Seller's Marketplace
account, which is accessible through the Portal.
2. «Agreement» has
the meaning given in the preamble.
3. «Applicable Law»
means all requirements of federal, state, or other jurisdictional laws,
regulations, ordinances, and administration orders and rules of the United
States, its territories, and all other countries in which the Merchandise is
produced, sold, or delivered.
» has the meaning given in Section X.A.
» has the meaning given in Section X.C.
6. «Claims» has the
meaning given it in Section IX.A.
7. «Effective Date»
has the meaning given in the preamble.
8. «Indemnified Party»
has the meaning given in Section IX.A.
9. «IP Rights» means
all intellectual property rights which now or hereafter exist throughout the
universe, whether conferred by operation of law, contract, or license,
including rights of authorship, including copyrights, moral rights and
mask-works, marks, cosmetic designs, ornamental appearance and trade dress,
trade secret rights, inventions, and technology (whether patentable or not and
whether or not reduced to practice), confidential information (as defined
herein), software and databases, rights of publicity, patents, designs,
algorithms, and other industrial property rights, and «rental» rights and
rights to remuneration;
10. «Marketplace Vendor
» means the Uvipin
Marketplace Vendor Information Guide, which contains
additional policies and procedures for doing business via Uvipin Marketplace,
and has been made available to Seller via the Portal, and may be amended from
time to time by Uvipin.
means all claims, actions, losses, expenses, costs or damages of every nature
and kind whatsoever (including reasonable attorneys' fees) asserted in any
claim, action, lawsuit or proceeding.
means the goods, offers and services Seller markets and lists for sale to Users
on the Websites.
13. «Merchandise Listings»
means the offers created for display on the Websites related to the sale of the
14. «Monthly Subscription
» means the monthly fee charged by Uvipin for membership in the Uvipin
15. «Party» and «Parties»
have the meaning given to them in the preamble.
16. «Personnel» means
a Party's employees, agents, officers, directors, or others action on behalf of
17. «Portal» means
the online interface by which Seller accesses its Marketplace account,
communicates with Uvipin, uploads its Seller Content and Merchandise Listings,
manages its User Orders, and other such activities related to this Agreement.
» means the items and categories banned or illegal.
19. «Provider Parties»
means Providers and all of their past, present and future parents,
subsidiaries, affiliates, directors, officers, and employees.
20. «Uvipin» has the
meaning given in the preamble.
21. «Uvipin Marks»
means all Uvipin' domestic and foreign trademarks, service marks, trade names,
registrations and applications to register the foregoing, logos, and domain
22. «Uvipin Parties»
means Uvipin and all of its past, present and future parents, subsidiaries,
affiliates, directors, officers, and employees.
23. «Uvipin Return Policy»
means the return policy located at
Uvipin.com, as updated by Uvipin
from time to time.
24. «Seller» has the
meaning given in the preamble.
25. «Seller Content»
means all images, videos, text, Merchandise descriptions, and
Merchandise-related data uploaded by Seller to create its Merchandise Listings.
26. «Seller Marks»
means all of Seller's domestic and foreign trademarks, service marks, trade
names, registrations and applications to register the foregoing, logos, and
27. «Seller Shipping and
» means the policy loaded by Seller into the Seller Portal,
in compliance with the Terms of this Agreement.
» means all information related to order fulfillment,
shipping times, and merchandise returns, as may be designated by Uvipin, or by
Seller, if applicable, via the Portal, and relating to Seller's Merchandise.
29. «Taxes» has the
meaning given in Section II.B.3.
30. «User» means any
user or customer accessing the Websites, or placing or receiving any order for
Merchandise via the Websites.
31. «User Order» has
the meaning given in Section II.C.1.
32. «Websites» has
the meaning given in the preamble.