PLEASE READ THIS MARKETPLACE SHOP OWNER AGREEMENT CAREFULLY. YOU MUST AGREE TO THESE TERMS IN ORDER TO ACCESS AND USE THE MARKETPLACE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE MARKETPLACE.
Rakuten.com reserves the right to change any of the terms and conditions contained in this Marketplace Shop Owner Agreement or any policies or rules governing the Marketplace at any time and in its sole discretion. Any such changes will be effective upon the posting of the revised Marketplace Shop Owner Agreement or such policies and rules on the Rakuten.com site. Material changes to the Marketplace Shop Owner Agreement shall be accompanied with a 30 day notice on the Marketplace area of the Site, and you are solely responsible for reviewing any such notice and the corresponding changes to the Marketplace Shop Owner Agreement.
Rakuten.com Marketplace Shop Owner Agreement
Whereas, Shop Owner is in the business of selling consumer and business products ("Products");
Whereas, Buy.com / Rakuten.com provides a platform for select third party shop owners, to sell their products on the Rakuten.com website ("the Site") pursuant to its Marketplace program ("Marketplace Program");
Whereas, Shop Owner desires to offer certain products for sale through the Site; and
Whereas, Rakuten.com and Shop Owner desire to set forth in this Agreement the terms and conditions that will govern Shop Owner's offer and sale of Products on the Site in connection with the Marketplace Program.
Now, therefore, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
For purposes of this Agreement, capitalized terms will have the meaning specified in their contextual paragraph, or where not otherwise defined herein, will have the meanings specified below:
"Affiliate" will mean any business that directly or indirectly is controlled by or is under common control with Buy.com Inc.
"Claims(s)" will mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation.
"Intellectual Property" means any trademark, trade name, service mark, copyright, patent, logo, moral right, trade secret and any other intellectual property right arising under any Law and all ancillary and related rights, including all rights of registration and renewal and causes of action for misappropriation, infringement or violation of any of the foregoing.
"Law" shall mean any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, or any governmental authority of competent jurisdiction.
"Losses" shall mean any and all damages (including, without limitation, past, future, direct, indirect, economic, noneconomic, consequential, special, exemplary, incidental, and punitive), sanctions, settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys' fees and costs.
"Shop Owner Content" shall mean all images, product information and content including without limitation, the product data, (i) provided by Shop Owner to Rakuten.com or its Affiliates for use in connection with the Marketplace Program and (ii) otherwise made available by Shop Owner to Customer on the Rakuten.com Site (e.g. through Shop Owner's distribution or hosting of such images, content or information).
"Quarterly Plan" shall mean a fixed-fee plan under which Shop Owner pays a quarterly fee to list and sell products on the Site Marketplace. Such quarter shall commence on the day of Shop Owner's enrollment in a plan, or upgrade to a new plan, and shall continue for three months, with auto-renewal thereafter.
3. Shop Owner's Content License Grant
3.1 License for Content. By entering into this Agreement and listing an item, Shop Owner grants, as well as represents and warrants that it has the right to grant to Rakuten.com and its Affiliates a royalty-free, non-exclusive, worldwide, sublicensable, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, commercially or non-commercially exploit in any manner, incorporate and imbed into other works, and distribute Shop Owner Content throughout the Rakuten.com Site and all Affiliate properties and on those marketplaces that Rakuten.com participates.
3.2 License for Marks. Shop Owner hereby grants Rakuten.com and its Affiliates and marketing partners a non-exclusive, royalty-free, non-transferable license to publish, use, reproduce, distribute, transmit, and display Shop Owner's name, trademarks, service marks and logos ("Shop Owner's Marks") during the Term in connection with the Marketplace Program.
4. Product Information and Other Content
4.1 Content. Shop Owner agrees and warrants that any and all Shop Owner Content: (a) will be truthful, accurate, and not misleading or otherwise deceptive; (b) will not violate the intellectual property rights of any third party such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy; (c) will not violate any law, statute, ordinance or regulation; (d) will not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; and (e) will not create liability for Rakuten.com. Shop Owner agrees that any and all Shop Owner Content may be publically displayed by Rakuten.com as Rakuten.com sees fit and at no charge to Rakuten.com. Shop Owner will only provide content for Products that fit into the categories or parameters approved in writing by Rakuten.com. Shop Owner may provide Rakuten.com with Content for Products in additional categories or parameters only upon the prior written consent of Rakuten.com (which, in this case, may be given by email). At its request, Rakuten.com will have the option to review Shop Owner's complete product catalog on a regular basis and in a mutually agreed upon format in order to review assortment decisions. If Shop Owner receives Customer ratings or reviews for its Products directly or through third parties, then Rakuten.com and Shop Owner may mutually agree to have Shop Owner provide such ratings and reviews to Rakuten.com as part of the Content. Rakuten.com will not have any responsibility for or liability with respect to Shop Owner's Content.
4.2 Excluded Products. You hereby represent and warrant that you will not list, offer or sell products that: (a) are stolen or counterfeit; (b) violate the intellectual property rights of others such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy; (c) you do not have full right and authority to sell; (d) contain any viruses, Trojan horses, worms, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) violate any law, statute, ordinance or regulation (such as those governing export control or consumer protection); (f) contain any material that is obscene, pornographic or that contains child pornography; and/or (g) create liability for Rakuten.com. If Shop Owner is restricted from selling certain Products on the Rakuten.com Site due to supplier brand restrictions or if Shop Owner is not an authorized reseller for any Product, Shop Owner will withhold such Products from the assortment it provides Rakuten.com provided that it will promptly notify Rakuten.com in writing of such removal. Prior to launch and upon Rakuten.com's request, Shop Owner will provide Rakuten.com with a list of all Products that will be excluded from the Item File at launch and specify why each Product is being excluded.
5. Product Authenticity and Safety
5.1 Authenticity / Authorization . All products sold through the Marketplace Program will be received by Shop Owner directly from the brand owner or from an authorized supplier of the brand owner, and Shop Owner must be an authorized reseller of the Products. Shop Owner will maintain adequate processes and procedures for conducting diligence to assure that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded. Upon Rakuten.com's request, Shop Owner will promptly provide Rakuten.com with (i) certificates of authenticity (or similar documentation) for Products and (ii) documentation (e.g. email verifications from the brand owner or supplier) showing that Shop Owner is permitted to sell specific brands or Products through the Rakuten.com site.
5.2 Safety, Testing and Certification . Shop Owner will comply with, and ensure that all Products comply with all product safety, testing and certification requirements under applicable Law, including without limitation, the Consumer Product Safety Act, as amended, the Consumer Product Safety Improvement Act of 2008, as may be amended from time to time, the Federal Hazardous Substances Act, as may be amended from time to time, and all other Law under the jurisdiction of the Consumer Product Safety Commission ("CPSC"). Shop Owner will obtain copies of GCCs from its suppliers or manufacturers for all Products for which a GCC is required under applicable Law. Shop Owner will promptly notify Rakuten.com in writing of all warnings, disclaimers or any other similar notices required by applicable Laws to be posted with respect to Products.
5.3 Certifications. Shop Owner shall provide Rakuten.com with written certification from an officer of Shop Owner stating that Shop Owner has complied with any of Shop Owner's obligations under this Agreement, including, for example and without limitation, compliance with consumer product safety laws, authenticity of Products, or restrictions on use of Transaction Information.
6. Fees and Commissions.
6.1 Fixed Fee Plans . Rakuten.com offers two fixed fee programs from which Shop Owner may opt during the registration process (each a "Quarterly Plan"). Quarterly fees of $99.00 or $597.00 shall be charged to Shop Owner's credit card on file prior to the relevant three-month term. Shop Owner must enroll in one of the Quarterly Plans, and pay the applicable fees, in order to list and sell products on the Rakuten.com Shopping Marketplace. Shop Owners with 50,000 listings or greater shall automatically be upgraded to the $597.00 Quarterly Program. The benefits and features of each Quarterly Plan may be found in the "Shop Owner Tools" link on the site.
(a) Quarterly Plan Changes. Following enrollment, Shop Owner shall be billed every three months for the Quarterly Plan selected. Shop Owner may upgrade programs at any time during the quarter. At upgrade, Shop Owner will be reimbursed the pro-rata share for the remaining period of the lesser Quarterly Plan, and charged $597.00 for the upgraded Quarterly Plan, which quarterly term shall commence on such billing date. Shop Owner may downgrade Quarterly Plans through the "Shop Owner Tools" link on the site or by providing written notice fifteen (15) days prior to plan renewal. Shop Owner may cancel enrollment in the Marketplace program altogether through the "Shop Owner Tools" link on the site or by providing written notice fifteen (15) days prior to plan renewal. In the event that Shop Owner cancels enrollment in the Marketplace program and terminates the Shop Owner account during a pre-paid Quarter, Shop Owner will not be entitled to any refund for pre-paid days during which it was not actively enrolled.
6.2 Commission Fees . When Shop Owner sells a Product through the Rakuten.com Site, Rakuten.com shall earn a commission fee ("Commission Fee") equal to a per item fee plus a certain percentage of Sales Proceeds. The Commission Fee (including per item fee and percentage rates) are set forth in Shop Owner's rate card - accessible through Shop Owner Tools. "Sales Proceeds" shall mean the gross sales proceeds from the sale of the Products, including all shipping and handling, gift wrap and other charges with respect thereto, but excluding any taxes separately stated and charged.
6.3 Shop Owner Payment . Commission fees and other amounts owed to Rakuten.com will be deducted from the amounts received from Customers for the purchase of Shop Owner's Products through the Rakuten.com Site (such resulting amount, "Shop Owner Payment"), and Rakuten.com shall have no obligation to make any Shop Owner Payment to Shop Owner with respect to any Products, unless and until Rakuten.com actually receives payment from such customer. Each week, Rakuten.com shall pay to you the owed Shop Owner Payment associated with amounts received by Rakuten.com from purchases previously made from and fulfilled by you through the Marketplace. Shop Owner Payments shall be made to the U.S. bank account that you designate to receive payment or in such other manner selected by Rakuten.com such as by paper check or wire transfer.
6.4 Transaction Limits . Rakuten.com may set transaction limits on any Shop Owner and will not be liable to Shop Owner for blocking or otherwise refusing to proceed with any transaction. Rakuten.com also reserves the right to withhold the payment of funds to you or to return funds to the buyer if we are currently investigating any claim or any suspected or alleged wrongful conduct by you or any violation of this Marketplace Shop Owner Agreement, and you agree that Rakuten.com will not be liable to you for any such amounts. Upon any termination or suspension of your account, Rakuten.com may hold all Shop Owner Payments for ninety (90) days to allow for Marketplace Guarantee Claims and for the settlement of all amounts owed to Rakuten.com.
7. Purchase/Order Processing, Fulfillment and Shipping
7.1 Orders. Shop Owner will be the Shop Owner of record. Customers purchasing Products through the Rakuten.com Site (each a "Customer" and together "Customers") will place orders using the Rakuten.com checkout system and Rakuten.com will collect all proceeds from such transactions, including shipping costs and applicable taxes based on shipment options and tax designations provided by Shop Owner to Rakuten.com. The Customer is the Buyer or Purchaser of Record. Rakuten.com will electronically transmit to Shop Owner the order information (e.g. Customer name, shipping address, and anonymized email) ("Transaction Information") that Rakuten.com determines Shop Owner needs to fulfill each order, including without limitation, shipping Product(s) to Customers and providing Customer service. Rakuten.com will send an automated email message to each Customer confirming receipt of an Order. Shop Owner will provide Rakuten.com with Shop Owner's Customer service contact information which Rakuten.com may include in such confirmation email and/or on the Rakuten.com website.
7.2 Risk of Fraud and Loss . Rakuten.com will bear the risk of credit card fraud chargebacks occurring in connection with any order and Shop Owner will bear all other risk of fraud or loss and all costs related thereto. Notwithstanding the foregoing, Rakuten.com will not bear the risk of credit card fraud in connection with any Product that is not shipped by Shop Owner to the shipping address specified in the Transaction Information provided by Rakuten.com, and the Parties agree Shop Owner will be responsible for all costs related to such credit card fraud under such circumstances, and all chargebacks related to Products sold and Product fulfillment and delivery. For all credit card chargebacks for which Shop Owner bears the risk, Rakuten.com will offset such chargeback amounts against amounts otherwise owed Shop Owner, or send Shop Owner an invoice and Shop Owner will pay such invoice within thirty (30) days of receipt.
7.3 Fulfillment of Orders . (a) Once Rakuten.com has transmitted an order to Shop Owner, Shop Owner will at its own expense, be solely responsible for, and bear all liability for, the fulfillment of the Order, including without limitation, packaging and shipping of Products, securing the services of and payment of any freight forwarder or customs broker service charges (as may be required for any particular shipment), import or export duties or taxes (as applicable), and Customer service. Shop Owner agrees that legal ownership and all risk of loss of the Products remains with Shop Owner until the Customer physically receives the Product from Shop Owner. If Shop Owner cannot fulfill the entire quantity of a purchase order (PO) line in an Order, then the Shop Owner will cancel that PO line, fulfill all other lines in the Order and notify Rakuten.com of such cancellation. If the Order consists of one PO line that Shop Owner cannot fulfill the entire quantity for, then Shop Owner will cancel the entire Order and notify Rakuten.com.
(b) Shop Owner will ship only the product purchased by the Customer and will not include any additional products, materials or information not purchased by the Customer, other than those materials included in all shipments sold by Shop Owner as long as such materials (a) do not in any way promote Amazon.com, eBay, Walmart or Overstock.com, and (b) do not specifically target the Customer as a marketplace Customer or include any reference to Rakuten.com.
7.4 Shipping. (a) Shop Owner is responsible for properly specifying shipping options for all Products in its Item File or through the Shop Owner interface on the Marketplace, and for properly handling all returns, including without limitation, those for Products that have unique requirements for shipping and return handling, including without limitation, hazmat or perishable Products to the extent such Products are permitted to be sold on the Rakuten.com site. Shop Owner will provide Rakuten.com with the shipping, handling, and any other charges for each Product, separate from the purchase price, in accordance with Rakuten.com's shipping calculation functionality. Shop Owner will accept payments from Rakuten.com based on the specified shipping charges as full payment for the shipping of such Products to the Customer.
(b) Shop Owner will ship items ordered by Customers (i) by placing the ordered items into the custody of the appropriate shipping agency or freight forwarder within two (2) business days following notification of the order or, (ii) if the Rakuten.com Marketplace explicitly supports longer shipping windows in the published specifications provided to you, within specification-compliant timeframe specified in your inventory file which is current at the time of the transaction. Shop Owner will provide notice of shipment to Rakuten.com through the Shop Owner interface on the Marketplace, and Shop Owner hereby represents and warrants that it will only provide notification of shipment following actual shipment of the product. If Rakuten.com does not receive a shipment notification notice from Shop Owner within seven (7) days of placement of Order, the Order may be cancelled by Rakuten.com and Shop Owner will be responsible for all Product costs and shipping costs associated with such cancelled order.
8. Cancellations, Returns and Refunds
8.1 Responsibilities. Shop Owner is responsible for processing all Customer cancellations, returns, refunds, and/or Customer service price adjustments. Shop Owner will provide Rakuten.com with its Customer return, refund and price adjustment policies ("Customer Service Policies") for display on the Rakuten.com Site. Shop Owner's Customer Service Policies for Products sold through the Rakuten.com Site will be no less favorable to Customers than Shop Owner's most favorable policies offered on Shop Owner's own Site or on other Marketplaces for such Products. If Shop Owner does not provide such Customer Service Policies to Rakuten.com prior to the Effective Date, then Shop Owner shall be deemed to have adopted Rakuten.com's standard customer service policies as may be adopted and/or revised from time to time. Shop Owner shall notify Rakuten.com of any material changes to Shop Owner's Customer Service Policies at least fourteen (14) days prior to Shop Owner's implementation of such changes, provided, however, that any such changes shall not be effective with respect to orders until the revised Shop Owner Customer Service Policy has been posted to the Rakuten.com Site.
8.2 Refunds. Shop Owner will be responsible for all non-cash refunds (e.g. store credit and exchanges). If Shop Owner determines a Customer is due a cash refund, Shop Owner will notify Rakuten.com via an interface provided by Rakuten.com and include other related information requested by Rakuten.com (e.g. reason for refund). For cash refunds, Rakuten.com will provide the refund to the customer via the Customer's original payment method (e.g. Customer's credit card) if possible and Rakuten.com will refund to Shop Owner the amount of the Commission Fee attributable to the amount of the Customer refund (excluding any refunded taxes), less the lesser of: (i) two dollars ($2.00); or (ii) twenty percent (20%) of such Commission Fee; provided that Rakuten.com shall have no liability for refunds offered by Shop Owner in excess of the purchase price. If Shop Owner provides Customer directly with a cash or non-cash refund (e.g. Shop Owner credit or gift card), Rakuten.com shall retain the full amount of the Commission Fee attributable to such Customer refund. If Rakuten.com makes a cash refund to a Customer for a Product returned to Shop Owner, Rakuten.com in its sole discretion, will obtain a refund of the Shop Owner Payment received by Shop Owner for such returned Products either via (i) offset of any amounts payable by Rakuten.com to Shop Owner or (ii) by billing Shop Owner for such amounts.
9. Parity with Shop Owner's Sales Channels
9.1 Parity. Shop Owner will maintain parity between the Products it offers through the Shop Owner Site and the Products offered on the Rakuten.com Site by ensuring that at all times: (a) the purchase price and every other term of offer and/or sale of the Products (including associated shipping and handling charges and options, any "low price" guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable return and refund policies) is at least as favorable to Rakuten.com users as the most favorable terms upon which a product is offered and/or sold via the Shop Owner Site or by Shop Owner on any other third party marketplace; (b) customer service for the Products is at least as responsive and available and offers at least the same level of support as the most favorable customer service offered in connection with the Shop Owner site; and (c) the Content, including without limitation, the product images, description and other information regarding the Products, provided by Shop Owner to Rakuten.com for the Rakuten.com site (i) is of at least the same level of quality as the highest quality information displayed or used on the Shop Owner site or provided by Shop Owner to any other third party marketplace and (ii) provides users of the Rakuten.com site with at least as much product information, images and other content as the information provided by Shop Owner on any other site. If Shop Owner becomes aware of any non-compliance with (a) above, Shop Owner shall promptly notify Rakuten.com and compensate adversely affected Customers in accordance with the procedures set forth in Section 7 for providing customers with cash refunds.
10. Ownership and Use of Transaction Information
11. Ratings and Reviews
Rakuten.com may use mechanisms that rate or review, or allows shoppers to rate or review, Shop Owner's Products and Shop Owner's performance as a Shop Owner and Rakuten.com may make these ratings publically available. Rakuten.com will have no liability to Shop Owner for the content or accuracy of any ratings or reviews. Shop Owner shall have no ownership interest in or license to use any rating or reviews posted on the Rakuten.com site.
12.1 Taxpayer and Shop Owner of Record . Shop Owner is the taxpayer and vendor/shop owner/retailer of record and must comply with all applicable tax Law. Shop Owner shall be solely liable for any tax liabilities, including without limitation, any penalties or interest. All references to "tax" or "taxes" in this Agreement shall mean all taxes and fees, including without limitation, sales, use and surcharge taxes, import or export duties, and all related ancillary taxes and fees, including without limitation, electronic waste recycling fees.
12.2 Shop Owner Warranty . Shop Owner is solely responsible for determining the amount of sales, use or other taxes owed as a result of the sale of Products, and is solely responsible to collect, report and remit any such sales, use or other taxes required under applicable law. Shop Owner shall have the option of requesting that Rakuten.com collect tax on Shop Owner's behalf. Shop Owner hereby represents and warrants that it will (a) identify all states in which it has an obligation to collect and remit sales and/or use tax during registration, (b) keep such information updated at all times, and (c) will remit all such taxes collected and provided to Shop Owner by Rakuten.com. Upon the request of Rakuten.com, Shop Owner will immediately provide verifiable proof acceptable to Rakuten.com of Shop Owner's remittance of all sales/use tax collected through the Marketplace. If Shop Owner is unable to provide such proof to the satisfaction of Rakuten.com, Rakuten.com may withhold and retain all such amounts and/or terminate Shop Owner's Marketplace account. Shop Owner acknowledges and agrees that Rakuten.com has no responsibility to collect, report or remit sales, use or any other applicable taxes in connection with your sale.
12.3 California Sales Tax . Without limiting the generality of the foregoing, Rakuten.com will automatically charge sales tax with respect to any products shipped to California, and all such amounts shall be remitted by Rakuten.com to the State from amounts received by Rakuten.com from customers.
12.4 Nexus. If any governmental authority determines that sales, use or other taxes are owed by Rakuten.com or Shop Owner on sales of Products through the Rakuten.com site or that Shop Owner has nexus in a state or local jurisdiction, or is otherwise responsible for the collection and remittance or reporting of taxes (and all related penalties and interest) related to the sale of any Products, whether or not as a result of any action or inaction by Rakuten.com, Shop Owner (i) agrees that Shop Owner shall solely be responsible for payment of such taxes (and all related penalties and interest) and/or reporting of such taxes (if applicable), (ii) agrees that Rakuten.com shall have no liability to Shop Owner or any governmental authority for such taxes or penalties, and (iii) will not seek any reimbursement from Rakuten.com for such taxes and related penalties. Shop Owner shall indemnify and hold harmless Rakuten.com and its Affiliates and their respective officers, directors, employees and agents for any claims, liabilities, losses, fines, costs and expenses (including reasonable attorneys' fees) arising out of or related to any ruling by any governmental authority that Rakuten.com or Shop Owner has a tax remittance or reporting obligation in any State on account of sales of Products through the Rakuten.com Site, whether or not due to any action or inaction by Rakuten.com. Rakuten.com may immediately charge Shop Owner's credit card on file and/or set-off any and all costs and/or expenses that are incurred in connection with the foregoing against any amounts owing to Shop Owner (including, without limitation, any Shop Owner Payments).
13. Information Security
Shop Owner will use appropriate internal information security practices to prevent the compromise of its information systems, computer networks and data files by unauthorized users, viruses or malicious computer programs which could in turn be transmitted to Rakuten.com or compromise the security of Rakuten.com Confidential Information, including without limitation, the Transaction Information. Shop Owner shall be responsible for any costs, damages or legal notification procedures resulting from any breach of this Section.
14. Confidential Information
14.1 Obligations. Both Parties acknowledge that either Party may receive ("Receiving Party") Confidential Information from the other Party ("Disclosing Party") during the Term, and such Confidential information will be deemed to have been received in confidence and will be used only for purposes of this Agreement. The Receiving Party shall use the Disclosing Party's Confidential Information only to perform its obligations under this Agreement and disclose the Disclosing Party's Confidential Information only to the Receiving Party's personnel, contractors and affiliates having a need to know the information for the purpose of this Agreement. The Receiving Party shall treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care. Upon the Disclosing Party's written request, the Receiving Party shall return or certify the destruction of all Confidential Information, and the obligation of confidentiality shall continue for three (3) years from the expiration or termination of this Agreement; provided however, the Receiving Party shall continue to keep confidential (i) any personally identifiable information ("PII" as required by this Agreement and any applicable Law, (ii) any trade secrets of the Disclosing Party as long as such information is deemed a trade secret and (iii) the terms of this Agreement. Shop Owner agrees that Rakuten.com may share Shop Owner's Confidential Information with its Affiliates for internal use only.
14.2 Definition. The term "Confidential Information" means all information communicated by the disclosing Party that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure, including, without limitation (a) the terms of this Agreement, (b) all trade secrets, (c) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, (d) information relating to business plans, sales or marketing methods and customer or supplier lists or requirements, and (e) all information identified as confidential to which Receiving Party has access in connection with the subject matter hereof, whether before or after the Effective Date. Shop Owner shall also treat all Transaction Information, payment card data, tax codes, and PII as Confidential Information.
14.3 Exceptions. The obligations of either Party under this Section will not apply to information that the Receiving Party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality; (b) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act or failure to act by the Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure; (c) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by such third party or the Receiving Party; or (d) is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party.
14.4 Disclosure by Law . In the event the Receiving Party is required by Law, stock exchange requirement or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (a) give the Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (b) limit the disclosure to the minimum amount that is legally required to be disclosed.
15. Representations and Warranties
Shop Owner hereby represents and warrants to Rakuten.com the following:
15.1 Authority. Shop Owner is a corporation duly organized, validly existing and in good standing under the laws of the state where Shop Owner was incorporated and Shop Owner has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval. This Agreement constitutes the legal, valid, and binding obligations of Shop Owner. Shop Owner has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances.
15.2 No Conflicts . Neither the execution and delivery of this Agreement, nor the consummation of the transaction contemplated hereby, will violate or conflict with any obligation, contract or license which could reasonably be expected to interfere with the consummation of the transaction contemplated hereby.
15.3 Taxes. The person(s) inputting all tax related information (including without limitation, Tax Designations, and states in which Shop Owner has a tax remittance obligation) (collectively "Tax Information") into the Item File or otherwise providing such Tax Information to Rakuten.com has adequate tax knowledge and enough information about Shop Owner to accurately and completely enter such Tax Information. All Tax Information shall be accurate and complete. Shop Owner shall promptly update any Tax Information in the Item File as necessary to collect the correct amount of tax from customers.
16. Term, Termination and Suspension
16.1 Term. This Agreement shall commence on the Effective Date and shall continue for two years thereafter ("Initial Term") unless earlier terminated in accordance with the terms and conditions set forth in this Agreement. This Agreement will automatically renew for successive one (1) year periods upon expiration of the Initial Term (each a "Renewal Term" and together with the Initial Term, the "Term"), unless either Party gives written notice to the other Party of its intention not to renew at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term.
16.2 Termination for Breach . This Agrement may be terminated at any time by either Party if the other Party breaches any provision of this Agreement, and has failed to cure such breach within thirty (30) days of the receipt of written notice of breach from the non-breaching party, stating the nature and character of the breach. Rakuten.com may immediately terminate this Agreement if Shop Owner fails to meet any of its tax obligations, including without limitation the requirement of Shop Owner to provide documentation proving that Shop Owner has remitted collected taxes or fees to the appropriate jurisdiction(s) in accordance with Section 11; provided that Shop Owner has been given written notice of such failure and has not cured such failure within five (5) days of receipt of such notice. Termination under this Section does not limit either Party from pursuing any other remedies available to such Party, including but not limited to injunctive relief.
16.3 Termination in the Event of Insolvency or Bankruptcy . Either Party may terminate this Agreement upon written notice to the other Party in the event (a) the other Party files a petition for bankruptcy or is adjudicated bankrupt; (b) a petition in bankruptcy is filed against the other Party and such petition is not dismissed within ninety (90) days; (c) the other Party becomes or is declared insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (d) the other Party ceases to do business in the normal course; or (e) a receiver is appointed for the other Party or its business.
16.4 Rakuten.com Termination . Rakuten.com may terminate this Agreement for any reason by giving thirty (30) days' prior written notice to Shop Owner.
16.5 Suspension. Rakuten.com may immediately suspend Shop Owner's listing of Products on the Rakuten.com Site for (i) Shop Owner's failure to comply with any service level agreement set forth in this Agreement, (ii) Shop Owner's failure to meet any tax obligations set forth in this Agreement, or (iii) any breach of Shop Owner's information security obligations set forth in Section 12 or breaches to Shop Owner's systems, until Shop Owner has resolved such failure to Rakuten.com's reasonable satisfaction. Shop Owner will work diligently and cooperate with Rakuten.com to promptly remedy any service level, tax or information security failures within a reasonable period of time.
16.6 Post-Termination Obligations . Shop Owner will continue to have obligations under this Agreement after termination of the Agreement, including without limitation, the obligation to (i) provide customer service to Customers who purchased Products on the Rakuten.com Site, (ii) pay any invoices delivered by Rakuten.com in connection with the Agreement, (iii) notify Rakuten.com and Customers of any recalls of its Products, (iv) remit any taxes collected to the proper jurisdiction(s) and (v) immediately notify Rakuten.com of any security breach that allows a third party to view or access or otherwise compromise any Transaction Information.
16.7 Survival. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement (including, without limitation, representations, warranties, indemnification, payment obligations, remedies, Rakuten.com's rights to use Shop Owner's suggestions and feedback, limitations of liability, choice of law, jurisdiction, and venue) shall survive its termination.
17.2 Procedure for Indemnification . Upon receipt of notice, from whatever source, of Claims against Rakuten.com for which Shop Owner is obligated to indemnify Rakuten.com, Shop Owner immediately shall take necessary and appropriate action to protect Rakuten.com's interests with regard to the Claims. Rakuten.com shall notify Shop Owner of the assertion, filing or service of any Claims of which Rakuten.com has knowledge, as soon as is reasonably practicable.
17.3 Settlement. Shop Owner, in the defense of any Claim, shall not, except with the prior written consent of Rakuten.com, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term the giving by the claimant or plaintiff to Rakuten.com or a release from all liability and blame with respect to the Claim. Rakuten.com shall have the right at all times to accept or reject any offer to settle any Claim against it.
18. Warranty Disclaimer
THE Rakuten.com MARKETPLACE AND ANY RELATED PRODUCTS, SERVICES, CONTENT, SOFTWARE, ARTWORK, DATA, AND INFORMATION ARE PROVIDED "AS IS." Rakuten.com EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE Rakuten.com MARKETPLACE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR QUALITY OF DATA AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES OR CORRESPONDENCE TO DESCRIPTION. SHOP OWNER AGREES THAT IT'S USE OF THE Rakuten.com MARKETPLACE IS ENTIRELY AT SHOP OWNER'S OWN RISK.
19. Limitation of Liability
THE ENTIRE RISK ARISING OUT OF SHOP OWNER'S USE OF THE Rakuten.com MARKETPLACE, THE USE OF ANY SERVICES OFFERED IN CONNECTION WITH THE MARKETPLACE, AND/OR THE USE OF ANY CONTENT REMAINS WITH SHOP OWNER. IN NO EVENT SHALL Rakuten.com OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS MARKETPLACE SHOP OWNER AGREEMENT, SHOP OWNER'S USE OF THE Rakuten.com MARKETPLACE OR ITS SERVICES, ANY INFORMATION OBTAINED THROUGH THE MARKETPLACE, ANY DELAY OR INABILITY TO USE THE Rakuten.com MARKETPLACE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES TO SHOP OWNER IN CONNECTION WITH THE MARKETPLACE, OR OTHERWISE ARISING OUT OF THE USE OF THE Rakuten.com MARKETPLACE OR THE Rakuten.com SITE WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF Rakuten.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS MARKETPLACE SHOP OWNER AGREEMENT, THE MAXIMUM LIABILITY THAT Rakuten.com SHALL HAVE IS LIMITED TO THE ACTUAL VALUE OF ANY COMMISSIONS ACTUALLY RECEIVED BY Rakuten.com IN CONNECTION WITH ANY SALES MADE BY SHOP OWNER THROUGH THE MARKETPLACE. SHOP OWNER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND FUNDAMENTAL BREACH OF THIS MARKETPLACE SHOP OWNER AGREEMENT) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Any notice or other communication required or permitted to be made or given to either party under this Agreement shall be deemed sufficiently made or given on the date of delivery if delivered in person, by facsimile, or by overnight commercial courier service with tracking capabilities with costs prepaid, or three (3) days after the date of mailing if sent by certified first class U.S. mail, return receipt requested and postage prepaid, at the address of the parties set forth below or such other address as may be given from time to time under the terms of this notice provision.
For Shop Owner: The address provided by Shop Owner in the registration process.
If to Rakuten.com:
85 Enterprise, Suite 100
Aliso Viejo, CA 92656
fax: (949) 448-5402
With a copy to:
85 Enterprise, Suite 100
Aliso Viejo, CA 92656
fax: (949) 389-2007
Attn: General Counsel
21. Controlling Law and Jurisdiction. The Parties mutually acknowledge and agree that Agreement shall be governed, controlled, interpreted and defined by and under the laws of the State of California and the United States, without regard to the conflicts of laws provisions thereof. Unless waived by Rakuten.com (which it may do in its sole discretion) the exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the Superior Court of California for the County of Orange or the United States District Court for the Central District of California and each of the parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. Service of process in any such action may be effected in the manner provided in Section 19 for delivery of notices.
22. Waivers and Amendments. Except as otherwise expressly provided herein, any provision of this Agreement may be amended and the observance of any provision of this Agreement may be waived (either generally or any particular instance and either retroactively or prospectively) only with the written consent of the parties. Any waiver or delay in the exercise by either party of any of its rights under this Agreement shall not be deemed to prejudice such party's right of termination or enforcement for any further, continuing or other breach by the other party. This Agreement shall be controlling over additional or different terms of any order, confirmation, invoice or similar document, even if accepted in writing by both parties, and that waivers and amendments shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver.
23. Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall only apply to such provision and shall not render this Agreement unenforceable or invalid as a whole; and, in such event, such provision shall be modified or interpreted so as to best accomplish the objective of such unenforceable or invalid provision within the limits of applicable law or applicable court decision and the manifest intent of the parties hereto.
24. Relationship of the Parties. The parties hereto expressly understand and agree that the other is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. This Agreement does not make either party the employee, agent or legal representative of the other.
25. Complete Agreement. This Agreement (and all Exhibits hereto) constitutes the entire understanding and agreement with respect to the subject matter hereof and supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry custom.
26. Headings. Section headings are for reference only and shall not affect the interpretation of this Agreement.
27. Counterparts. This Agreement may be executed in any number of separate counterparts each of which when executed by and delivered to the other party shall be an original as against the party whose signature appears thereon, but all such counterparts shall together constitute one and the same instrument.