1.1. You, Seller, agree to provide discussed Product to consumers through our website service, in compliance to the following terms and conditions.
1.2. Us, 535 Media, LLC d/b/a EverybodyShops.com and its affiliated parties, agreeing to provide a website service, allowing Seller to vend their Product to potential consumers, in compliance to the following terms and conditions.
PRODUCT SALE If EverybodyShops.com selects your product, you agree that EverybodyShops.com can market and sell the Product through our Website.
MARKETING Seller hereby grants EverybodyShops.com the right to use brand trademarks and product imagery in our advertising, including but not limited to, display banners, videos, and search keywords.
Term and Termination
4.1. Term. The term of this Agreement shall begin on the date Seller completes its application to list its Products for sale on the Website and that is then approved by EverybodyShops.com, and shall continue until terminated by EverybodyShops.com or Seller as provided below.
4.2. Termination for Convenience. Either party may terminate this Agreement at any time, with or without cause, immediately upon providing written or email notice to the other party.
4.3. Change of Ownership. Seller agrees to notify EverybodyShops.com within twenty-four (24) hours of any change in ownership and the nature of the change, including the name of the new owner. If there is any such change in ownership, EverybodyShops.com may, in its sole discretion, terminate this Agreement.
5.1. EverybodyShops.com has sole discretion in evaluating each individual Seller's suitability to participate in the Website and related listing services. At the time Seller applies to participate, and periodically throughout the term of this Agreement, EverybodyShops.com will review certain Seller characteristics, including but not limited to, product offerings, product liability and compliance history, business and financial standing, and whether Seller could be construed as a current or potential competitor to EverybodyShops.com or of an EverybodyShops.com affiliated company, and EverybodyShops.com reserves the right, in its sole and complete discretion, to reject any Seller applicant, or to terminate any participating Seller, which EverybodyShops.com deems not to be suitable to participate in the Website and related listing services.
Products and Pricing
6.1. Except as provided below, Seller shall provide EverybodyShops.com with all Product Information to be displayed on the Website, through the Seller Portal provided by EverybodyShops.com. On an on-going basis, Seller will update Product Information as necessary and appropriately including, but not limited to:
brief product description
specifications, if any
images (approved for use by supplier or manufacturer)
manufacturer part number
amount of inventory
suggested selling price
Seller is fully responsible for the accuracy of all information submissions to EverybodyShops.com pertaining to Products to be listed and/or sold.
6.2. RMA procedure varies, dependent on the Seller. Seller may choose to offer or not to offer a return policy to customers. If Seller agrees to offer customer returns, Seller must offer a thirty (30) day replacement or money-back guarantee for all Products, favorable to Customers as the standard EverybodyShops.com return policy, fully explained below. Sellers who offer any warranty must honor the terms and/or conditions presented at the time of purchase. If Seller states to offer customer returns but do not specifically state their return policy, our return policy .
6.3. Seller agrees that any Product Information may be publicly displayed by EverybodyShops.com as EverybodyShops.com sees fit and at no charge to EverybodyShops.com. Seller grants to EverybodyShops.com an irrevocable, perpetual, sublicensable, transferable, non-exclusive, royalty-free and fully paid-up, worldwide right and license to, during the term of the Agreement, use, copy, transmit, perform, display, modify and create derivative works, incorporate and imbed into other works, and distribute such Product Information throughout the Website in any medium or form now existing or later created.
6.4. Seller is solely responsible to ensure that all Product Information displayed on the Website is accurate. In order to prevent inaccuracies, Seller shall (i) immediately correct any erroneous pricing, inventory, and shipping information; and (ii) immediately notify EverybodyShops.com of any erroneous Product description. Seller shall immediately notify EverybodyShops.com in writing of any private or public recall of any of its Products. In addition, Seller’s Product Information shall comply with all EverybodyShops.com content policies maintained on EverybodyShops.com’ website, as amended from time to time, including but not limited to the EverybodyShops.com Content Policy.
6.5. Seller agrees to exclude all promotions, coupons, bundle discounts or similar discounts when calculating Suggested Product Prices that are provided to EverybodyShops.com. EverybodyShops.com, in its discretion, may change the Suggested Product Prices for the prices of Products offered to Customers for sale on the Website.
6.6. Prohibited Products. Updated from time to time, which is incorporated by this reference, the Prohibited Items include, but are not limited to, products containing alcohol or tobacco, prescription drugs, and weapons. Seller shall not list or offer for sale, or attempt to list or offer for sale, on the Website. In addition, Seller must not provide EverybodyShops.com any product that may be potentially illegal, obscene, or might infringe on the intellectual property rights of any party. In the event Seller lists or offers for sale, or attempts to list or offer for sale, any Prohibited Item on the Website, EverybodyShops.com shall be authorized to fine Seller in the sum of $10,000. Seller agrees that said sum shall be an administrative fee to compensate EverybodyShops.com for the cost of removing such Prohibited Item, and Seller’s payment of such sum shall not limit its liability to EverybodyShops.com or waive any rights EverybodyShops.com may have under this Agreement, including but not limited to indemnity rights.
6.7. Seller acknowledges and agrees that: (a) inaccuracies in information provided to EverybodyShops.com; (b) failure to provide EverybodyShops.com with updated Product and pricing information; (c) illegal or deceptive practices by Seller; (d) complaint(s) from users regarding Seller's conduct of business; and/or (e) any breach of Section 6.6 or this Section 6.7, constitute sufficient cause for the immediate removal of Seller from the Website and the immediate termination of this Agreement by EverybodyShops.com, in its sole discretion and without any prior notification to Seller or opportunity for Seller to cure any of the foregoing. EverybodyShops.com, in its sole discretion, may refuse or remove any Prohibited Item or other listing which violates this agreement, at any time. In the event of removal of Seller or its Product(s) from the Website EverybodyShops.com in its sole discretion is entitled to indicate on the Website that Seller and Products have been removed from the Website, and to provide notification to customers who purchased such Products.
6.8. It is within our right to monitor the traffic a Seller Store or Product is receiving. If EverybodyShops.com believes a store or product is performing poorly, they may suggest purchasing Marketing and Promotional efforts and/or suggest editing or removing a product listing at the discretion of EverybodyShops.com.
6.9. Notwithstanding anything to the contrary in this Agreement, Seller shall have no right to modify, delete or augment Pre-existing Product Information, and EverybodyShops.com reserves the right to enact technical features to prevent Seller from so doing.
6.10. Pricing for Payment. Seller will pay EverybodyShops.com, pursuant to this agreement, a subscription fee, listing fees, and any other applicable fee(s) for their online store and listed products. EverybodyShops.com Seller Pricing Chart, incorporated by this reference and is subject to modification by EverybodyShops.com at any time, should be reviewed by Seller to accurately calculate warranted fees and owed compensation for use of website services.
Transaction Process & Payment Stream
7.1 General. In additional to all other Seller requirements set forth in this Agreement, Seller must provide EverybodyShops.com with (1) Seller's valid bank account number with ACH authorization, and (2) Seller's completed W-9 form. Further, Seller agrees to pay EverybodyShops.com a $1.00 authorization fee for verification of each such account. Until Seller complies with all requirements in this section 7.1, EverybodyShops.com shall be under no obligation to remit any Net Sales Price, as defined below, to Seller.
7.2 Orders and Taxes. Seller agrees to sell Products for listing and resale via EverybodyShops.com Website, in which EverybodyShops.com agrees to maintain Website, in accordance with this Agreement. When a Customer orders a Seller Product through the Website, the Customer's purchase of the Product ("checkout process") will take place solely through the Website, and Customer will not be routed to Seller's website, if any, in order to complete the purchase. EverybodyShops.com, and not Seller, shall be the seller to the Customer. As part of the checkout process, EverybodyShops.com will calculate, display to Customer and charge Customer, the following:
Sales price of the Product as determined by Seller, including any discounts or instant rebates thereto;
Shipping and handling fees calculated in accordance with this Agreement ("Shipping Fees");
Sales tax for Product orders to be shipped to Pennsylvania, and any other jurisdiction for which EverybodyShops.com determines it is required to charge, collect and remit sales tax, use tax or other similar taxes (collectively, "Sales Taxes");
Applicable electronic waste recycling fees for Products to be shipped to Pennsylvania or to any other jurisdiction for which EverybodyShops.com determines it is required to charge, collect and remit such fees (collectively, "Recycling Fees");
Any other applicable taxes, duties or levies required to be charged by EverybodyShops.com pursuant to the laws of any jurisdiction on the sale of a Product (collectively, "Miscellaneous Charges").
com will be treated as the "retailer of record" for determining what sales tax, if any, needs to be collected on the sale the Product. EverybodyShops.com reserves the right to notify the Customer that the Product will be shipped to customer by Seller.
Nothing in this Agreement or elsewhere shall make EverybodyShops.com responsible for taxes on Seller's income or gross receipts.
7.3 Shipping/Order Fulfillment. For each Product which is listed for sale on the Website, Seller will select an applicable shipping option. For each order purchased through the Website, EverybodyShops.com will charge the Customer a Shipping Fee based upon the shipping option selected by Seller for such Product. Seller agrees to select and offer only those shipping services that Seller is currently able to execute and satisfy. EverybodyShops.com will remit that Shipping Fee to Seller within the time specified elsewhere in this Agreement, and Seller agrees to accept the Shipping Fee so remitted as payment in full for Seller's shipping and handling costs associated with that order. Seller understands and agrees that its actual shipping and handling costs may not be equal to the Shipping Fee charged to the Customer. EverybodyShops.com shall not be responsible to process or fulfill any orders of Products through the Website. Seller agrees to process and fulfill all orders of Products through the Website in accordance with the following terms:
Seller must ship all ordered Products by one or more of the following interstate common carriers: UPS, FedEx, DHL or USPS all at Seller's own expense;
Seller shall not use its own trucks or a contract carrier for shipment of Products unless it is to fulfill a Local Delivery;
Seller shall purchase all shipping materials and containers at its own expense;
Seller may not insert any advertising, promotional or marketing material into shipping cartons containing Products for delivery to a Customer;
If Seller does not use a shipping option that provides for order tracking, then, notwithstanding anything to the contrary in this Agreement, any Product losses sustained because of the inability to prove delivery to a Customer will be borne by Seller;
Seller will ship all ordered Products no later than seventy-two (72) business hours after receiving order notification from EverybodyShops.com;
Seller will provide EverybodyShops.com with notification, including tracking information, following the actual shipment of the Product to Customer. If EverybodyShops.com fails to receive Seller's shipment notification within the seventy-two (72) business hours shipment window, EverybodyShops.com may cancel the order, and have no liability with respect to such cancellation, including without limitation, any shipment made in reliance upon such order;
If the transaction involves an In-Store Product Pick-up by customer or Local Delivery, the given store location’s check-out policies and procedures apply, only in this specific instance.
Seller assumes all risk of loss for shipment of Products to the Customer;
In the event EverybodyShops.com is collecting the sale up front, we will eremit to the Seller in a commercially reasonable time.
7.4 Payment to Seller. EverybodyShops.com shall remit to Seller the Sales Price and Shipping Fee for each Product purchased through the Website (the "Net Sales Price") at the time of the transaction, less any commissions as stated in the Commission addendum
The Net Sales Price for a Product shall be remitted to Seller on Friday of the week in which fifteen (15) calendar days have elapsed since the day on which EverybodyShops.com received confirmation that the Product was shipped to the Customer; provided that if the fifteenth such day falls on or after Friday of the week in question, then such Net Sales Price shall be remitted on the following Friday. Notwithstanding the foregoing, if a Friday is a bank holiday, then any Net Sales Price otherwise payable on that day shall be remitted on teh next business day following that bank holiday.
The Net Sales Price shall be remitted, at the option of EverybodyShops.com, by ACH transfer.
In the event Seller changes its bank account information previously provided to EverybodyShops.com, EverybodyShops.com may delay remittance of a Net Sales Price by up to seven (7) calendar days beyond the otherwise applicable remittance date.
In the event EverybodyShops.com is collecting the sale up front, we will remit to the Seller in a commercially reasonable time.
7.5 Customer Support/Returns. If a Seller uses EverybodyShops.com for fulfillment, the following does NOT apply. All Customer disputes, returns, claims, refunds, etc., are the responsibility of the Seller, subject to the requirements of this section as well as the Seller’s Return Policy provided on the Website subject to modification. All returns shall be fulfilled by Seller when notified by EverybodyShops.com, and the Seller will work directly with the Customer pursuant to EverybodyShops.com thirty (30) day replacement or money-back guarantee, which permits a Customer who purchases a Product on the Website to return it in like new condition for a full refund for at least 30 calendar days from the date the Product is purchased on the Website. If the thirty-day period has passed, customer will have a total of sixty (60) days to return said Product in like new condition for the current listed value of the same item on the Website. EverybodyShops.com may provide Seller's e-mail address and/or other contact information to Customers who purchase Products. Seller must respond promptly to all inquiries before close of the following day, 12:00 A.M. EST. With respect to any Product returned to EverybodyShops.com by a Customer, EverybodyShops.com reserves the right to ship the Product to Seller and bill Seller for actual shipping costs incurred by EverybodyShops.com . Seller, not EverybodyShops.com, shall have title to all Products returned by a Customer to EverybodyShops.com or Seller, and Seller shall bear all risk of loss as to such returned Products.
Within ten (10) business days of Seller's receipt of Product returned by Customer via an approved RMA request, Seller must provide prompt notice to EverybodyShops.com of such return.
Where Seller receives a Customer notice of non-delivery, Seller will resolve the issue and/or refund the Customer within ten (10) business days from the date of Customer's notification to Seller.
Once in receipt of Returned Product, EverybodyShops.com will refund Customer the owed amount to the bank account used in the purchasing of Product. EverybodyShops.com will deduct the refunded amount from Seller’s bi-weekly Net Sales ACH transfer for compensation.
If EverybodyShops.com receives a Customer complaint regarding any Seller Product or Seller's fulfillment or Seller's customer service, EverybodyShops.com reserves the right to investigate the complaint, with the full cooperation of Seller. In response to such complaint, Seller agrees that EverybodyShops.com shall have complete discretion to provide such Customer a full or partial refund or other payment, and Seller agrees to promptly reimburse EverybodyShops.com for any such refund or payment. For ease of processing, Seller expressly grants EverybodyShops.com the authority to, at the discretion of EverybodyShops.com, deduct such refund or payment from the Net Sales Price otherwise to be remitted to Seller.
7.6 Risk of Loss.
General. Except as specified below, Seller shall bear all risks associated with, or related to, any Product purchased by a Customer through the Website, including but not limited to product defects, non-delivery, mis-delivery, theft, mistake or Customer fraud. Seller will be responsible to ensure that all Products are shipped in compliance with all applicable laws and regulations, including but not limited to hazardous materials laws and regulations.
Credit Card Fraud. EverybodyShops.com will bear the risk of credit card fraud occurring in connection with a purchase of a Product through the Website. As used herein, the term "credit card fraud" means the fraudulent purchase of a Product arising from the theft and unauthorized use of a third party's credit card information. However, EverybodyShops.com will not bear the risk of credit card fraud in connection with Seller's fulfillment of a Product which is not fulfilled strictly in accordance with this Agreement. Seller will be responsible for all other risk of fraud or loss. Seller shall promptly notify EverybodyShops.com of any credit card fraud of which it becomes aware pertaining to a Customer.
7.7 Chargebacks. If EverybodyShops.com informs Seller that EverybodyShops.com has received a chargeback or other dispute with respect to any Seller Product ordered through the Website, Seller will deliver to EverybodyShops.com within five (5) business days after EverybodyShops.com’ request the following: (a) proof of delivery of the Product (b) the applicable EverybodyShops.com sales order number and (c) a description of the Product as applicable. If Seller fails to comply with the previous sentence, or if the chargeback or other dispute is not caused by credit card fraud as defined in Section 5.6 above, then Seller shall promptly reimburse EverybodyShops.com for the amount of the Net Sales Price, and all associated credit card association, bank or other payment processing, re-presentment and/or penalty fees associated with the original purchase and any chargeback or refund, to the extent paid by EverybodyShops.com. Seller expressly grants EverybodyShops.com the authority to, at EverybodyShops.com’ option, deduct such amounts from the Net Sales Price otherwise to be remitted to Seller.
Representations, Warranties and Covenants
8.1. You represent, warrant, and covenant to EverybodyShops.com that:
You are able to and will fulfill your obligations set forth in this Agreement.
You have the full right, power and authority to sell the Product and upon delivery to EverybodyShops.com or any of our customers, you convey full right, title and interest;
The Product description set forth in this Agreement is materially complete and accurate in all respects and any samples that you provide to EverybodyShops.com in the future are complete and accurate representations of the Product;
The Product is and will be free from defects in workmanship, materials and design and will be furnished in accordance and conformance with this Agreement;
The Product complies with the requirements of, and is merchantable and suitable for the purposes stated in, this Agreement;
The Product complies with all state and federal safety and sourcing requirements for its intended purpose;
The Product shall be manufactured, stored, packaged, labeled, supplied and delivered or shipped (as applicable) in accordance with all Applicable Law; and
None of the Product furnished hereunder is or will be used, remanufactured or reconditioned or of such age or so deteriorated as to impair its usefulness or safety.
You own all right, title, and interest in and to your IP;
'EverybodyShops.com’ use of your IP will not violate any Applicable Law or any Third Party Rights;
The Product’s sale, use, or incorporation into manufactured products does not and will not infringe upon or dilute any U.S. or foreign letters patent or Third Party Rights;
The Product and all of its components, packaging and labeling do not infringe any Third Party Rights; and
You have obtained and will maintain during the Initial Term and all Renewal Terms all applicable Regulatory Approvals.
8.2. All of your warranties, express or implied, in this section and otherwise shall survive shipment, delivery, and payment. Also, your representations, warranties and covenants in this Agreement are in addition to all other representations, warranties and covenants express or implied.
8.3. Marketing and Promotions. From time to time EverybodyShops.com may offer Seller, for purchase, a variety of marketing and promotional efforts provided by EverybodyShops.com. This may include, but is not limited to, word content, banner and/or slider ads, and optimization of product listings.
8.3.1. Regarding EverybodyShops.com’ promotional efforts for their Sellers, we in no way promise any Seller, whether or not they have purchased these marketing techniques, any site exclusivity of their Seller shop page. EverybodyShops.com owns the entire website and therefore it is in our right to display any sold advertising of a Seller on the store page of any other Seller, whether or not they are in direct competition with one another.
8.3.2. With the intent to drive sales, EverybodyShops.com may use their resources to create word content (“articles”) or similar for the Website. It is within our right to reference participating Sellers and/or their products within these articles and content, at no charge to those mentioned.
Intellectual Property License Grant
9.1. Seller grants EverybodyShops.com a non-exclusive, worldwide, royalty-free license to use, reproduce, distribute, create derivative works of (only as needed to create the look and feel of pages on the Website or as required to technically format materials provided by Seller), and publicly display the Seller Marks, (including the trademarks or service marks of any entity or individual whose product is submitted by Seller) Products, and Product Information on the Website.
9.2. Seller acknowledges and agrees that EverybodyShops.com owns all right, title and interest in and to EverybodyShops.com’ IP. You will not, and no Subcontractor will, translate, reverse engineer, decompile, disassemble, or in any way alter EverybodyShops.com’ IP. You also will not use, and no Subcontractor will use, Customer Data for any purpose that is not expressly directed by EverybodyShops.com. EverybodyShops.com acknowledges that the Seller owns all right, title, and interest in and to their IP. EverybodyShops.com will not, and no Subcontractor will, translate, reverse engineer, decompile, disassemble, or in any way alter the Seller’s IP.
10.1. Indemnity. Seller shall indemnify, defend and hold harmless EverybodyShops.com, its affiliates, subsidiaries, related entities, and their officers, directors, employees, agents, successors and assigns from and against any claims demands, liabilities or losses, damages, and expenses (including reasonable attorneys' fees and costs) including but not limited to the following based upon:
10.1.1. any product liability or similar claims arising or resulting from the use of any Product, including claims seeking damages for personal injury or property damage arising from or in relation to Products, and any claim concerning a Product's recall or otherwise defective or unsafe Product(s) (including design or manufacturing defects);
10.1.2. any intentional misconduct or negligence by Seller or its employees or agents in performing its obligations under this Agreement;
10.1.3. any third party claim that a Product, or any part thereof, infringes or misappropriates any Intellectual Property Right of a third party;
10.1.4. the failure or alleged failure of Products to comply with Product specifications or with any express or implied warranties of Seller;
10.1.5. the violation or alleged violation of any law, statute or governmental ordinance due or related to the manufacture, possession, shipment, labeling, packaging, use or sale of any Products;
10.1.6. any actual or alleged unfair business practices, false advertising, misrepresentation or fraud resulting from Product Information provided by Seller and disclosed by EverybodyShops.com;
10.1.7. any breach or alleged breach of a Seller representation or warranty or any other provision of this Agreement by Seller;
10.1.8 any assessment of sales or use tax (including any interest and penalties thereon) made by an applicable tax jurisdiction against EverybodyShops.com in connection with the sale of a Product pursuant to this Agreement.
10.2. Claims Handling. If a credible claim is made or threatened, for which EverybodyShops.com is entitled to indemnification from Seller including without limitation the filing of a lawsuit against EverybodyShops.com, or the receipt of a demand or notice by EverybodyShops.com or EverybodyShops.com elects to defend any claim for which EverybodyShops.com is entitled to indemnification:
10.2.1. EverybodyShops.com shall have the right to engage counsel of its choosing that EverybodyShops.com deems, in its sole discretion, to be necessary for a competent defense of the suit;
10.2.2. EverybodyShops.com shall pay all legal fees and expenses incurred in defense of the claim or suit as they become due. Seller shall reimburse EverybodyShops.com for such fees and expenses within thirty (30) days from date of invoice or debit memo from EverybodyShops.com. After thirty (30) days, EverybodyShops.com will be entitled to deduct any unpaid invoice or debit memo amount from any amounts owed by EverybodyShops.com to Seller. This shall not apply to any judgment or settlement amount, which amounts EverybodyShops.com shall be entitled to notify, invoice or debit Seller's account at any time.
10.2.3. In the event a claim is made or a suit is filed directly against EverybodyShops.com, and EverybodyShops.com is defending such claim or suit, then EverybodyShops.com, in its sole discretion, may settle the claim or suit. If Seller is defending the claim or suit, Seller may not settle the claim of suit absent the written consent of EverybodyShops.com unless such settlement (a) includes a release of all claims pending against EverybodyShops.com, (b) contains no admission of liability or wrongdoing by EverybodyShops.com, and (c) imposes no obligations upon EverybodyShops.com other than an obligation to stop selling any infringing items. EverybodyShops.com agrees to provide reasonable assistance to Seller, at Seller's expense, regarding such claim or action.
10.3. Notice. If a credible claim is made or threatened for which EverybodyShops.com is entitled to indemnification from Seller, including without limitation the filing of a lawsuit against EverybodyShops.com, or the receipt of a demand or notice by EverybodyShops.com, or EverybodyShops.com elects to defend any claim for which EverybodyShops.com is entitled to indemnification EverybodyShops.com will use reasonable efforts to notify Seller promptly of any such party claim for which EverybodyShops.com believes Seller should indemnify and defend EverybodyShops.com under this Section. However, EverybodyShops.com’ failure to provide such notice or delay in providing such notice will relieve Seller of its obligation only if and to the extent such delay or failure materially prejudices Seller's ability to defend such claim.
Limitation of Liability
In no event shall EverybodyShops.com be liable to Seller for their incidental, punitive, or consequential damages arising from this Agreement.
12.1. You agree to keep, and agree that any third party assisting you (each, a “Subcontractor”) will keep confidential and will not disclose, except for the purposes of shipping or delivering Product, this Agreement as well as any document provided by EverybodyShops.com marked “confidential” or with a similar designation or that contains material which should reasonably be considered confidential. Upon written request from EverybodyShops.com written request or the termination of this Agreement, you will return to EverybodyShops.com or destroy, at EverybodyShops.com’ option, all EverybodyShops.com confidential information in your or any Subcontractor’s possession.
12.2. EverybodyShops.com agrees to keep confidential and will not disclose any document provided by you marked “confidential” or with a similar designation or that contains material that should reasonably be considered confidential. Upon your written request or the termination of this Agreement, we will return to you or destroy, at your option, all your confidential information in the possession of EverybodyShops.com or any Subcontractor.
Limitation of Liability
EXCEPT FOR WILLFUL OR GROSSLY NEGLIGENT BREACHES OF ANY OBLIGATION UNDER THIS AGREEMENT, BREACHES OF ANY CONFIDENTIALITY OBLIGATIONS, THE FULFILLMENT OF ANY INDEMNITY OBLIGATIONS AND AS OTHERWISE PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL EVERYBODYSHOPS.COM, OR ITS SUBSIDIARIES OR AFFILIATED ENTITIES, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EVERYBODYSHOPS.COM’ LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID TO EVERYBODYSHOPS.COM UNDER THIS AGREEMENT. EVERYBODYSHOPS.COM SHALL HAVE NO LIABILITY TO ANY PARTY FOR ANY INTERNET OR TELECOMMUNICATIONS FAILURE, COMPUTER VIRUS OR THIRD PARTY INTERFERENCE THAT MAY INTERRUPT OR DELAY ACCESS TO ANY INTERNET SITE OR CAUSE OTHER PROBLEMS OR LOSSES. NO PARTY SHALL BE LIABLE FOR ANY DELAY OR FAILURE TO FULFILL ITS OBLIGATIONS HEREUNDER THAT RESULTS FROM AN ACT BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF NATURE, WAR, CIVIL DISTURBANCE, TERRORISM, COURT ORDER, OR LEGISLATIVE OR REGULATORY ACTION.
14.1. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, exclusive of choice of law rules. Both parties agree to submit exclusively to the personal jurisdiction of the applicable Federal or State court in Allegheny County, Pennsylvania.
14.2. Attorneys' Fees. In the event of any litigation between the parties hereto, the losing party shall pay the prevailing party's cost and expenses in such litigation, including, without limitation, court costs, reasonable attorneys' fees and disbursements. Any such attorneys' fees and other expenses incurred by either party in enforcing a judgment, and such attorneys' fees obligation is intended to be severable from the other provisions of this Agreement and to survive and not be merged into any such judgment.
14.3. Assignment. Neither this Agreement, nor any rights granted hereunder, may be assigned by either party voluntarily or by operation of law without the other party's prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, EverybodyShops.com may assign this Agreement without Seller's prior consent to any Affiliate of EverybodyShops.com, in connection with corporate reorganization, or in connection with the sale of all or substantially all of EverybodyShops.com’ business or assets (whether by merger, sale of assets, sale of stock or otherwise). Any attempted assignment in violation of this section shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, any successor or valid assign of either party.
14.4. Headings: Construction. The headings to the sections, sub-sections and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or affect the meaning or interpretation of this Agreement. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted the Agreement or any provision thereof. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement.
14.5. Non-Waiver. The failure of either party at any time to require performance by the other party of any provision hereof shall not affect in any way the full rights to require such performance at any time thereafter. The waiver by either party of a breach of any provisions hereof shall not be taken, construed, or held to be a waiver of the provision itself or a waiver of any breach thereafter or a waiver of any other provision hereof.
14.6. Notices. Unless otherwise specifically indicated elsewhere in this Agreement, any notice or communication permitted or required hereunder will be in writing and will be delivered by facsimile transmission with confirmation of receipt, in person, or by courier, or mailed by certified or registered mail, postage prepaid and addressed as set forth on the signature page of this Agreement or to such other facsimile number or address as either party may provide from time to time to the other. In addition, notices to Seller may be delivered by email to Seller at the most current email address provided by Seller to EverybodyShops.com. If notice is given in person, by courier, by email or by facsimile, it will be effective upon receipt; and if notice if given by mail, it will be effective three (3) business days after deposit in the mail.
14.7. Relationship of the Parties. The parties hereto are independent contractors and nothing contained in this Agreement shall be deemed or construed to create the relationship of partnership or joint venture or principal and agent or of any association or relationship between the parties. Seller acknowledges that it does not have, and Seller shall not make any representation to any third party either directly or indirectly indicating that Seller has, in any way, authority to act for or on behalf of EverybodyShops.com or to obligate EverybodyShops.com in any way whatsoever. Each party is responsible for all taxes, duties and other governmental assessments incurred by it as a result of such party's performance under this Agreement, and Seller shall reimburse EverybodyShops.com for any sales, use, VAT, excise, or other tax, duties or levies (other than taxes on EverybodyShops.com’ income and taxes for which Seller is exempt), including any penalties and interest, which EverybodyShops.com may be required to collect or remit to applicable tax authorities in connection with the sale of Seller's Products pursuant to this Agreement.
14.8. Severability. A judicial determination that any provision of this Agreement is invalid, in whole or in part, shall not affect the enforceability of those provisions unaffected by the finding of invalidity.
14.9. Survival. Notwithstanding the termination or expiration of the term of this Agreement or any renewal period thereof, it is acknowledged and agreed that those rights and obligations which by their nature are intended to survive such expiration or earlier termination shall survive, including, without limiting the foregoing, the following provisions: 10, 12, 13, & 14.
14.10. Counterparts, Duplicate Originals. This Agreement may be executed in any number of counterparts or duplicate originals, all of which shall be considered one and the same agreement.
14.11. Entire Agreement and Modification. This Agreement, including any addenda attached hereto and fully incorporated herein, constitutes the entire agreement between the parties pertaining to the subject matter hereof, and fully supersedes any and all prior or contemporaneous written or oral communications or agreements between the parties hereto respecting the subject matter hereof, including but not limited to any terms and conditions contained on any pre-printed forms, purchase orders, purchase order acknowledgement and invoice. EverybodyShops.com may amend any of the terms or conditions contained in this Agreement at any time and solely at EverybodyShops.com’ discretion by posting a new version of the Agreement, containing the amendments, on the Seller Portal or the Website, and Seller is responsible for reviewing these locations and informing itself of applicable amendments. SELLER'S CONTINUED USE OF THE WEBSITE FOR MORE THAN SEVEN (7) CALENDAR DAYS AFTER EVERYBODYSHOPS.COM’ POSTING OF ANY CHANGES WILL CONSTITUTE SELLER'S ACCEPTANCE OF SUCH CHANGES. IF SELLER DOES NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, SELLER MUST TERMINATE THIS AGREEMENT AS PROVIDED ABOVE.
The following definitions apply to this Agreement:
“Applicable Law” means all applicable international, federal, state and local laws and all executive orders and rules and regulations issued thereunder by agencies or otherwise, including but not limited to all Regulatory Approvals.
"Customers" means consumers and visitors to the Website.
“Customer Data” means any and all personally identifiable information about EverybodyShops.com’ customers as defined by applicable law that EverybodyShops.com or you generate or collect. This includes but is not limited to, any customer names, phone numbers and shipping addresses provided by EverybodyShops.com or its customers to you to fulfill your obligations under this Agreement.
"Product(s)" means those products for which Seller provides com with Product Information, specifically excluding any "Prohibited Items" as designated in this Agreement.
"Product Information" means specifications, pricing, product images and other information related to the Product.
“RMA Procedure” is the Return Merchandise Authorization; in other words it is the process we use in order to conduct product returns to our customers.
“EverybodyShops.com IP” means our Website, EverybodyShops.com trademarks, all data collected through or from the Website (including, but not limited to, Customer Data) and any materials, software, technology, or tools used by EverybodyShops.com to promote or resell the Product.
“Seller’s IP” means your name, logo, trademarks, and any photographs, graphics, artwork, text, and other content provided by you, but does not include, and EverybodyShops.com does not have, the right to reproduce your Product.
“Third Party Rights” means any copyright, trademark, service mark, trade name, trade secret, or other intellectual property right of any person or entity, or any confidentiality obligations to any person or entity.
"Seller Marks" means Seller's trademark, trade names, service marks, service names, logos and distinct brand elements associated with Seller's products.
“Local Delivery” means the customer is located within a respectfully close parameter to the Seller warehouse or store location, in which the Seller chooses to use their own trucks to deliver the Product, rather than shipping by mail.
“Net Sales Price” means and includes the sum of the Product’s listed sales price, shipping fee, applicable taxes, miscellaneous fees, and deduction of any applicable discounts.