Terms of Service
Brand Agreement - Seller Agreement
Last Updated: December 7, 2018
Welcome to the EVERY (DBA EVERY), a proprietary retail platform provided by EVERY INC, (“Company”). Any individual or entity (“Seller” or “you”) that wishes to access EVERY and any related websites and applications owned or operated by or on behalf of Company (each, a “Site,” and collectively, the “Sites”) to sell goods or services (“Products”) must accept the terms and conditions of this Seller Agreement (“Agreement”) without change.
By clicking the “I AGREE” button located within the Brand account creation process or by offering any Products for sale on the Site or through enabled affiliates, you agree to be bound by all terms and conditions of this Agreement.
Company may change these terms and conditions at any time in its sole discretion. Any changes will be effective upon posting of the revisions on the Sites. All notices of changes to this Agreement will be posted on the Sites for thirty (30) days. You are responsible for reviewing the notice and any applicable changes, and your continued use of the Site following Company’s posting of any changes will constitute your acceptance of such changes. If you do not agree with any of the posted changes, do not continue to use the Site. Any changes will not apply to Product orders that were placed prior to the effective date of the changes, and such orders will be governed by the version of this Agreement that was effective on the date that the order was placed.
1. Our (EVERY’s) Role
Company provides the Sites to enable you to sell your Products to third party buyers (“Customers”). Neither Company nor its affiliates are involved in the transaction between you and your Customers except as set forth in Section 3. All transactions with Customers are between you and the Customer, and you will be the seller of record for all such transactions.
2. Your (Seller’s) Responsibilities
2.1 Register as a Brand
To register as a Seller, you must provide the information requested on EVERY’s Seller registration page. You agree to keep this information up-to-date in a prompt and timely manner.
2.2. Keep Your Accounts Secure
You will be provided with an EVERY account, which may be accessed only by your employees and third party contractors authorized to provide services to you (“Authorized Users”). All Authorized Users must agree in writing to secure the log-in credentials used to access your EVERY account and not to disclose such credentials to any third party. You agree that you are and will be strictly liable for all actions occurring through your EVERY account.
2.3. Start Adding Product
(A) Creation of Product Listings
You will create a listing for each Product you intend to sell on the Site (“Product Listing”). All Product Listings will comply with the terms in this Section 2.3. Company may reject any Product Listing or portion of a Product Listing, and may suspend the publishing of, refuse to publish, remove or censor any Product Listing for any reason, in Company’s sole discretion.
(B) Things You Can’t Sell
You may not list any item on the Site or link or post any related material on the Site that (i) is prohibited by law, or that violates any of your representations or warranties under this Agreement, (ii) you do not have the right to list or sell, (iii) infringes any third-party intellectual property rights (including copyright, trademark, patent and trade secrets) or other proprietary rights (including rights of publicity or privacy), (iv) constitutes libel or slander or is otherwise defamatory, (v) is not new, authentic, or authorized for sale, or (vi) is counterfeited, illegal, misbranded, stolen or fraudulent (collectively, the “Prohibited Items”). Upon Company’s request, you will promptly provide Company with (a) certificates of authority or similar documentation related to Products, (b) documentation showing that you are licensed or otherwise have a right to use any content included in a Product Listing, (c) documentation showing that you have a legal right to sell the Products through the Sites, and (d) documentation showing that the Products are not Prohibited Items.
(C) Required Product Information
In order to list a Product for sale on the Sites, you must provide all of the required product information set forth in Exhibit A.
(D) Product Pricing Fariness and Parity Guarantee
You are responsible for determining the purchase price for each Product you list on the Site. For Products that you list at a fixed price, you are obligated to sell the Product to Customers at the listed price.
You will maintain Parity between the Products you offer through the Site and identical Products offered through your other sales distribution channels, including your own website(s) or any third party website(s). “Parity” means that purchase prices, product quality (including quality assurances) and shipping and handling charges associated with a Product Listing (including any “low price” guarantees, rebates or discounts, any free or discounted Products or other benefit available as a result of purchasing one or more other Products, and terms of applicable cancellation, return and refund policies) are at least as favorable to EVERY’s Customers as they are to end user Customers who purchase the Products via any other online sales channel. If you become aware of any non-compliance with this Parity requirement, you will promptly notify Company and compensate adversely affected Customers by making appropriate refunds to such Customers in accordance with the procedures set forth in Section 2.5.
In addition, in accordance with Section 2.7, you will offer customer service for Products listed on the Site that is at least as responsive and available, and that offers the same level of support, as the most favorable customer service offered in connection with any other online sales channel through which the Products are offered. You agree to provide EVERY Customers with at least as much product information, as many images and as much other content as provided on any other online sales channel through which the Products are offered.
Seller (and neither Company nor its affiliates) will have all responsibility to determine whether Seller Taxes apply to the transactions between you and Customers, and to collect, report and transmit the Seller Taxes to the appropriate tax authority. “Seller Taxes” means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of Products by you on the Site, or otherwise in connection with any action, inaction or omission by you.
(F) Inventory List
You will provide Company with a daily, error-free inventory feed for Products that you sell on the Site. This can be done through (i) Inventory feeds manually updated daily, (ii) Manual product creation updated daily, (iii) Automated connections with full read and write integrations with the EVERY platform, or (iv) API connections with full read & write integrations established by merchant resources. Where inventory levels have changed since the last inventory feed you provided to Company for a Product, you will use commercially reasonable efforts to provide Company with an updated inventory feed for such Product within one hour of the change in inventory levels. You are responsible for promptly updating your Product Listing(s) so that the Product Listing(s) and information related to Product inventories are at all times accurate. You will not list any Products you do not currently have in stock.
2.4. Processing and Fulfilling Orders
(A) Order Processing
Customers will place orders using the EVERY checkout system, and payments will be processed as set forth in Section 3. Company will electronically transmit to you the order information that Company determines is necessary to fulfill each order (“Transaction Information”) through (i) The Seller’s web portal, (ii) Email notifications, or (iii) an automated fashion to the seller’s existing order processing system. Company will send an automated electronic message to each Customer confirming receipt of an order. Once Company has transmitted the Transaction Information to you, you will, at your own expense, be solely responsible for and bear all liability for the fulfillment of the order, including scheduling, packaging, shipping and otherwise providing Products and customer service. If you cannot fulfill the entire quantity of any line in an order, you will cancel that purchase order line, fulfill all other lines in the order, and promptly notify Company of such cancellation. If the order consists of a single line item for which you cannot fulfill the entire quantity, then you will cancel the entire order and promptly notify Company of such cancellation. If you cancel any order or purchase order line, you will promptly notify Customers of such cancellation in accordance with applicable law. You will include any information requested by Company in the cancellation notice sent to Customers. Refunds for cancelled orders will be processed as set forth in Section 2.5.
(B) Terms of Shipping
You will be responsible for specifying shipping options for all Products in the Product Listings, and for all aspects of shipping, including providing adequate packaging, tagging, labeling and packing of the Products in compliance with applicable law.
You will be responsible for shipping all Products purchased by Customers in accordance with the time frames or processing times specified for such Products in the Product Listings, or, if no time frame is advertised or specified, within thirty (30) days. You will be responsible for all shipping charges and for any costs or charges related to shipping problems, including damaged or lost Products, late shipments or delivery errors, theft or other acts in connection with the fulfillment and delivery of Products. You will provide a shipment confirmation notice to Customers and to Company promptly following the shipment of an order. If you cannot meet the shipping time frame or processing time specified for any Product in a Product Listing, you will provide the Customer with electronic notification of such delay and include any information requested by Company in that notification. If the delay is greater than ten (10) days, the Customer may cancel the order without incurring any fees or penalties, and Customers will be provided with any refunds due in accordance with Section 2.5.
You may not include any marketing, promotional materials or any other solicitations with the Products shipped to Customers unless receiving prior written approval by Company.
(C) Product Loss and/or Damage Risk Terms
Title to and risk of loss and damage to the Products will remain with you until delivery to the Customer. Company will not have title to, or be deemed the legal owner of, any Products at any time under the terms of this Agreement.
2.5. Canceling, Returning, and Refunding Products
You are responsible for processing all Customer cancellations, returns and refunds in accordance with the policies specified in the Product Listings. You will suspend or cancel any order if requested by Company. You will notify Company of any material changes to your cancellation, return and refund policies at least five (5) days prior to your implementation of such changes, and such changes will not apply to any Product orders that were placed prior to your implementation of such changes. You are responsible for all non-cash refunds, including store credit, gift cards and exchanges. If you determine that a Customer is due a cash refund to the Customer’s credit card, debit card or other form of original payment, you will notify Company and include the information requested by Company. For cash refunds, Company will transmit the refund to the Customer via the Customer’s original payment method if possible, and you will transmit to Company a refund of the payment received by you (if any) for such returned Products. In no event will Company be liable for any refund offered by you to a Customer in excess of the purchase price paid by the Customer for any returned Product.
2.6. Defective Products and Product Recalls
You are solely responsible for any non-conformity or defect in, or any public or private recall of the Products. Company will have no responsibility or liability for any Products sold through the Sites. You will promptly remove any defective or recalled Products from the Sites, notify Company of all defective Products and Product recalls within twenty-four (24) hours of becoming aware of the defect or recall, and promptly provide Company with all information reasonably requested regarding the recall or the defective or recalled Product.
2.7. Customer Service
You will be responsible for providing all customer service, except where issues are related to payment processing. In providing customer service, you will always represent yourself as a separate entity from Company and its affiliates, and will not disparage Company, Company’s affiliates, or any of Company’s or its affiliates’ products or services. If you monitor or record customer service calls, you will provide notice of such monitoring or recording to all Customers in accordance with applicable law prior to providing any customer service.
2.8. Reporting and Audit Rights
You will, within a reasonable period of time not to exceed thirty (30) days, following a reasonable request from Company, provide Company with any reports, information or other documentation relating to your compliance with this Agreement and applicable law.
You will keep accurate and complete books, records and accounts related to Company’s transactions and this Agreement, and will allow Company or its duly authorized representative the right upon not less than five (5) business days’ prior written notice, during the term of this Agreement and for two (2) years thereafter, to conduct full and independent audits and investigations of all information, books, records and accounts to confirm your compliance with this Agreement and applicable law. All such audits and investigations will take place during the Company’s regular business hours.
You may use subcontractors to perform your obligations under this Agreement provided that (A) your subcontractors will be required to adhere to the terms of this Agreement and (B) you will be fully responsible for the acts and omissions of your subcontractors. Company may require you to cease use of any subcontractor for any reason, and may immediately suspend your account or terminate this Agreement in the event you refuse to comply with any such request from Company.
3. Referral Fees and Payment Terms
For each Product sold through any Site, Company will earn a referral fee (“Referral Fee”) equal to a percentage of the gross sales proceeds from the sale of such Product agreed to by Company and Seller. The gross sales proceeds upon which the Referral Fee will be calculated will include all shipping and handling, gift wrap, service fees and any other charges to Customers and will exclude taxes separately stated. Once Company has received a confirmation notice from you that the Products have shipped, Company will transmit to you the total payment it collects from the sale of your Products (excluding taxes separately stated), less the Referral Fees, within thirty (30) days from Company’s receipt of such payment from Customer.
4. Representations and Warranties
4.1. Mutual Representations and Warranties
(A) Authority to Enter Agreement
Company represents that it has the authority to enter into this Agreement and to perform the acts required of it, and that the execution of this Agreement and performance by Company of its obligations and duties does not and will not violate any other agreement to which Company is otherwise bound. You, as Seller, represent that you have the authority to enter into this Agreement and to perform the acts required of you, and that the execution of this Agreement and performance by you of your obligations and duties does not and will not violate any other agreement to which you are otherwise bound.
4.2. Your (Seller’s) Representations and Warranties
(A) No Prohibited Items
You represent and warrant that, during the term of this Agreement, you will not list any item on the Site or link or post any related material on the Site that constitutes a Prohibited Item under Section 2.3(B).
(B) Legal Right to Sell
For each Product you offer through the Site during the term of this Agreement, you represent and warrant that you (i) are an authorized reseller of that Product, purchased or otherwise legally acquired that Product from an authorized reseller of that Product, or otherwise have a legal right to sell that Product and (ii) have any necessary professional licenses and certifications required to sell the Product.
(C) Minimum Performance Standards
You represent and warrant that, during the term of this Agreement, you will perform all of your obligations under this Agreement in a professional and commercially reasonable manner, in accordance with generally accepted industry standards.
You represent and warrant that you will maintain, during the term of this Agreement and for a period of two (2) years following expiration or termination of this Agreement, at a minimum, commercial general, umbrella and excess liability insurance in accordance with generally accepted industry standards?
(E) No Harm to Sites; No Security Violations
You represent and warrant that (i) all data uploaded or transmitted by you to the Sites during the term of this Agreement 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 Sites, and (ii) you will not use the Sites to violate the security of, or gain unauthorized access to, any computer or computer network, device, system or Customer information, or use the Sites or other Seller Content, intentionally or unintentionally, to violate any applicable law.
(F) Product Recalls
You represent and warrant that none of the Products that you offer through the Site during the term of this Agreement are subject to any health, safety or product quality recall.
(G) Compliance with Laws
You represent and warrant that, at all times during the term of this Agreement and thereafter, you will fully comply with applicable laws, regulations, legal requirements, accepted industry standards and self-regulatory principles, including applicable privacy laws and laws related to marketing, packaging, consumer protection, product safety, product testing, labeling, pricing, packaging and the provision of Products in connection with this Agreement.
(H) Quality Control
You represent and warrant that You will subject all Products that you offer through the Site to its commercially reasonable quality control and inspection standards and all Goods sold and delivered under this Agreement shall be subject to the warranties under Section 4.2(F) of this Agreement.
4.3. Our (Company’s) Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER COMPANY NOR ANY OF ITS AFFILIATES MAKES ANY WARRANTIES, AND COMPANY AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH REGARD TO EVERY AND ANY SITES, AND ANY SERVICES, INFORMATION, OR PRODUCTS AVAILABLE THROUGH ANY SITES, 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. EVERY AND ITS SITES ARE PROVIDED BY COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOUR USE OF THE SITES IS SOLELY AT YOUR OWN RISK. NEITHER COMPANY NOR ANY OF ITS AFFILIATES WARRANTS THAT THE SITES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND MAKE ANY WARRANTY OR GUARANTEE WITH REGARD TO RESULTS THAT MAY BE OBTAINED BY USE OF THE SITES, OR THE SALE OF ANY PRODUCTS BY YOU TO CUSTOMERS THROUGH THE SITES, OR ANY SERVICES PROVIDED BY COMPANY OR ITS AFFILIATES TO YOU IN CONNECTION WITH THE SITES OR SUCH SALES. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, COMPANY AND ITS AFFILIATES DISCLAIM ANY AND ALL SUCH WARRANTIES.
5. Intellectual Property
Subject to Section 5.2, Company, its affiliates (and its and their service providers and licensors) retain all right, title and interest (including all intellectual property rights) in and to (A) EVERY’s, Sites, (B) all data received from you in connection with the foregoing, including any Feedback (as defined in Section 5.4) and (C) any of Company’s and its affiliates’ (and its and their service providers’ and licensors’) confidential or proprietary information. Except for a limited right for you to access the Sites made available to you, Company and its affiliates (and its and their service providers and licensors, as applicable) retain all rights in the foregoing and grant no other rights or licenses (whether by implication, estoppel or otherwise) under any of the intellectual property rights under or in connection with this Agreement.
5.2. Seller Content
You retain all rights (including all intellectual property rights) to images, videos, text, information that is created as a result of a transaction, ratings and reviews provided by customers, Product descriptions, and all Product-related data uploaded by you to create Product Listings (“Seller Content”). You hereby grant to Company and its affiliates a royalty-free, non-exclusive, irrevocable, perpetual, worldwide right to use and reproduce, modify, display, distribute, perform, re-format, create derivative works of or otherwise commercially or non-commercially use in any manner the Seller Content with the right to sublicense such rights through multiple tiers.
5.3. Ratings and Reviews
The Sites may use mechanisms that allow Customers to rate or review your Products and your performance as a seller, and Company may make these ratings publicly available. Company will have no liability to you for the content or accuracy of any ratings or reviews. You will have no ownership interest in or license to use any ratings or reviews posted on the Sites.
5.4. Suggestions and Feedback
If you provide or make available suggestions, comments, ideas, improvements or other feedback or materials (“Feedback”) to Company in connection with the Sites or other subject matter of this Agreement, Company will own, and you hereby assign to Company, all rights, title and interest (including intellectual property rights) in such Feedback. You agree that Company and its affiliates will be free to disclose, reproduce, modify, license, transfer, distribute, use and otherwise use any such Feedback in any manner.
5.5. Company API
“Confidential Information” means any and all technical or business data or information furnished, in whatever form or medium, by Company and its affiliates regardless of whether marked or identified as such, including all Customer Information (as defined below), the terms of this Agreement, and the operations and technology used in connection with the Sites. “Customer Information” means any and all information related to Customers, such as names, addresses, telephone numbers, account numbers, demographic and financial information, and Transaction Information.
You agree to (A) treat as confidential and preserve the confidentiality of all Confidential Information and not disclose it to any third party (other than authorized developers in accordance with Developers Agreement without the prior written consent of Company, (B) use the Confidential Information solely for the purposes of performing your obligations under this Agreement, (C) use the Customer Information solely for purposes of fulfilling Customer orders, and not for any other purposes, including marketing and promoting your Products and soliciting Customers, (D) not copy such Confidential Information unless authorized by Company, and (E) restrict the disclosure of Customer Information to your employees who have a need to know such information to perform under this Agreement. You are liable for any unauthorized disclosure or use of Confidential Information by any of your employees. You will notify Company promptly upon the discovery of the loss, unauthorized disclosure or unauthorized use of Confidential Information.
The obligations with respect to Confidential Information will not apply to any information other than Customer Information that (i) is already in your possession, as shown by documentation and without obligation of confidentiality; (ii) without action or fault on your part, is or becomes publicly available or (iii) you have obtained from a third person without breach by such third person of an obligation of confidence. You must promptly return or destroy all Confidential Information at Company’s request.
7. Privacy and Information Security
You agree to abide by the privacy and information security requirements set forth in Exhibit B.
8. General Release and Indemnification
BECAUSE COMPANY AND ITS AFFILIATES ARE NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN YOU AND A CUSTOMER, YOU HEREBY IRREVOCABLY RELEASE, ACQUIT AND FOREVER DISCHARGE COMPANY AND ITS AFFILIATES FROM ALL CLAIMS, COUNTERCLAIMS, ACTIONS, CAUSES OF ACTION (THAT ARE ASSERTED OR COULD BE ASSERTED), DAMAGES (ACTUAL AND CONSEQUENTIAL), DEMANDS, LIABILITIES, ATTORNEYS’ FEES, COSTS, EXPENSES, AND LOSSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
You will defend, indemnify and hold harmless Company and its affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, losses, damages, costs, judgments, penalties, interest and expenses (including reasonable attorneys’ fees and costs of any investigation, defense and settlement) arising out of any Claim that arises out of or relates to: (A) any actual or alleged breach of your representations, warranties or obligations set forth in this Agreement, (B) any acts or omissions, including negligence, misrepresentation, fraud or willful misconduct by you, your officers, employees, agents, affiliates or any of your contractors involved in the provision of Products and in the performance of your obligations under this Agreement (C) your own website or other sales channels, the Products, any Seller Content, any Developer Services, the advertisement, offer, sale or return of any Products, any actual or alleged infringement of any intellectual property or proprietary rights by you, the Products, any Seller Content, or any Developer Services, or any taxes owed by you, or the collection, payment or failure to collect or pay such taxes, or (D) the loss, unauthorized disclosure or unauthorized use of Confidential Information. “Claim” means any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity, including any government entity. You will provide all cooperation, documentation and information reasonably requested by Company in connection with any Claim. Company will have the right to control all aspects of the defense and settlement of Claims.
9. Limitation of Liability
IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OR LOSS OF DATA, (B) EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE, OR (C) FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER COMPANY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AND ANY DEVELOPER WILL EACH BE SOLELY RESPONSIBLE FOR (AND COMPANY AND ITS AFFILIATES HAVE NO RESPONSIBILITY TO YOU, ANY DEVELOPER OR ANY THIRD PARTY FOR) ANY ACTS AND OMISSIONS OF YOU OR A DEVELOPER (INCLUDING ANY FAILURE TO COMPLY WITH THIS AGREEMENT OR ANY DEVELOPER LICENSE AGREEMENT) AND FOR THE CONSEQUENCES OF ANY SUCH ACTS AND OMISSIONS (INCLUDING ANY LOSS OR DAMAGE THAT COMPANY OR ITS AFFILIATES MAY SUFFER) IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT.
IN NO EVENT WILL COMPANY’S OR ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU FOR ANY CLAIMS, LOSSES, DAMAGES, COSTS, JUDGMENTS, PENALTIES, INTEREST AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ANY INVESTIGATION, DEFENSE AND SETTLEMENT) FOR ANY REASON WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL REFERRAL FEES PAID BY YOU TO COMPANY PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY OR TEN THOUSAND DOLLARS ($10,000), WHICHEVER IS GREATER.
THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS SECTION 10 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES, AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10. Term and Termination; Survival
This Agreement will continue in effect until terminated in accordance with this Section 11. Company, in its sole discretion, may terminate this Agreement, access to the Sites, or any current sales immediately without notice for any reason. You may terminate this Agreement at any time upon thirty (30) days notice to Company, in which case, subject to your continued compliance with the terms of this Agreement, Company will process and fulfill all open orders until the termination is effective.
Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 will survive the termination of this Agreement for any reason.
11.1. Entire Agreement
This Agreement, including any terms and conditions incorporated into this Agreement by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement. All prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter of this Agreement are superseded in their entirety by this Agreement.
11.2. Relationship of Parties
You and Company are acting under this Agreement as independent contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. You are solely responsible and liable for the conduct of your employees. No party has the right or authority to enter into any obligation for or to otherwise bind the other party to any extent by virtue of this Agreement.
Sections and section headings contained in this Agreement are for reference purposes only, and will not affect in any manner the meaning or interpretation of this Agreement. Whenever the context requires, references to the singular will include the plural and the plural the singular. The parties acknowledge that each party and its legal counsel have reviewed this Agreement, and no provision of this Agreement will be interpreted for or against any party because such party or its legal counsel drafted such provision. For purposes of interpreting this Agreement, (A) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”, and (B) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy.
Unless otherwise noted in this Agreement, Company will provide notices to you at the address, e-mail address, or fax number provided by you to Company at the time that you register to participate in EVERY as a Seller.
11.5. Governing Law; Venue
This Agreement is governed by and will be construed in accordance with the laws of the State of Washington without regard to its principles of conflicts of law. You agree to the exclusive jurisdiction of the federal and state courts located in Seattle, Washington and waive any jurisdictional, venue or inconvenient forum objections to such courts.
11.6. 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 such failure and the consequences of such failure are reasonably beyond the control and without the fault or negligence of the party claiming excuse.
You may not assign, sell, transfer, delegate or otherwise dispose of, this Agreement or any of your rights or obligations under this Agreement without Company’s prior written consent. Company may assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of Company’s rights or obligations under this Agreement.
Notwithstanding anything to the contrary in this Agreement, affiliates of either party and third party contractors acting on behalf of such party may exercise any and all of such party’s rights and perform any and all of such party’s obligations under this Agreement.
You will not use or incorporate any of Company’s or its affiliates’ trademarks, service marks, or trade names, in whole or in part, or otherwise directly or indirectly refer to Company or its affiliates in your account name, any other Customer-facing identification, the Product Listings, any publicity release, promotional material, customer or partner list, advertising, marketing or business-generating effort, whether written or oral, without the prior written consent of Company.
If any provision of this Agreement is deemed 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.
11.11. No Waiver
The waiver by either party of a breach of or a default under any provision of this Agreement will not be effective unless in writing, and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have under this Agreement operate as a waiver of any such right or remedy.
REQUIRED PRODUCT INFORMATION