Direct Application
Business Information
Interest
Buyer
Seller
Both
Direct Account Information
Banking ACH Information
Inventory Management Software
Re-seller Certificate
Business Terms
Direct Online – Standard Business Terms GENERAL TERMS Direct Online Marketplace Direct provides a platform for third-party sellers ("Sellers") and buyers ("Buyers") to negotiate and complete transactions online for products (the “Services”). The Services are available to qualified Buyers and Sellers via the Direct Marketplace Website. Enrollment Participants must complete the registration process for Services. As part of the application, you must provide us with your legal business name, address, primary contracts, phone number(s), banking credentials, and e-mail address(s). Term and Termination The term of this Agreement will start on the date of that Participant has completed registration for or use of the Services and will continue until terminated by either party as provided in this Agreement (the "Term"). Either party may terminate or suspend this Agreement for any reason at any time upon written notice. Service Fee Payments; Receipt of Sales Proceeds To use the Services, Participants must provide Direct with valid banking information for a bank account acceptable by Direct ("Participants Bank Account"). Participants authorizes Direct to charge or debit Participants Bank Account for any sums payable by Participants to Direct (in reimbursement or otherwise). All payments to Participants will be remitted to Participants Bank Account through a banking network or by other means specified by Direct. For any amounts Participants owes Direct, Direct may (a) charge Participants Bank Account; (b) offset any amounts that are payable by Participants to Direct (in reimbursement or otherwise) against any payments Direct may make to Participants; (c) invoice Participants for amounts due to Direct, in which case Participants will pay the invoiced amounts upon receipt; (d) reverse any credits to Participants Bank Account; or (e) collect payment or reimbursement from Participants by any other lawful means. If Direct discovers erroneous or duplicate transactions, then Direct reserves the right to seek reimbursement from Participants by deducting from future payments owed to Participants, charging Participants Bank Account, or seeking such reimbursement from Participants by any other lawful means. Direct – Standard Business Terms SELLING ON DIRECT Seller Fees • Seller commission fee is 12% Product Condition Guidelines • New: Unused and unread copy in perfect condition. The original protective wrapping and or dust cover, if any, is intact. All supplementary materials are included and all access codes for electronic material, if applicable, are valid and/or in working condition. • Used Like New: Cover is intact, with no nicks or tears. Pages are clean and not marred by notes or folds of any kind. May have shelf wear on outside edges. • Used Very Good: Pages and cover are intact and no more than 15% of the text is marred by notes or highlighting. The spine is undamaged. • Used Good: All pages and cover are intact. Spine and cover may show signs of wear. Pages may include no more than 40% of notes and highlighting. • Used Acceptable: All pages are included. Pages may include notes and highlighting, but the text cannot be obscured or unreadable. Products and Product Information Seller will provide in the format required accurate and complete product information for each product that is offered for sale through the Direct Marketplace and will promptly update that information as necessary to ensure it at all times remains accurate and complete. Seller may not provide any information for, or otherwise seek to offer any excluded products. Product Listing; Order Processing Direct will enable Seller to list products on the Direct Marketplace. Direct will provide order information to Seller for each order of products sold through the Direct Marketplace. Direct will also receive all sales proceeds on the Seller’s behalf for each of these transactions and will have exclusive rights to do so, and will remit them to Seller. Shipping and Handling Charges For products ordered by Buyers, Direct determines the shipping and handling charges, Seller will accept them as payment in full for the shipping and handling. Direct will not charge a fee on the shipping charges and will remit entire shipping amount paid by Buyer to the Seller. • Standard Shipping = $2.99 for first item and $1.99 per item for each additional, per merchant • Expedited Shipping = $4.99 for first item and $3.99 per item for each additional, per merchant Shipping Standards All items should be shipped within 48 hours of the data of the order. All items should be shipped through a traceable method and tracking information must be reported back through the Direct Marketplace within 48 hours of ship date. • Standard Shipping is defined as a 7-14 day delivery window • Expedited Shipping is defined as a 2-4 day delivery window Cancellations, Returns and Refunds Seller will accept and process cancellations, returns, refunds and adjustments in accordance with the Direct Refund Policies. Seller will determine and calculate the amount of all refunds and adjustments (including any shipping and handling or other charges) or other amounts to be paid by Seller to Buyers in connection with the their transactions. Seller will route all payments to Buyers in connection with their transactions through the Site. Direct will provide those payments to the Buyers and Seller will reimburse Direct for all amounts Direct pays. Seller will promptly provide refunds and adjustments that Seller is obligated to provide under the applicable Direct Refund Policies and as required by Law. All Sellers must honor a 7 day mutual return policy. Buyer must request return authorization within 7 days from the delivery date and Seller must process the return within 7 days of receiving the return from the Seller. Customer Service Seller will be primarily responsible for all customer service issues relating to goods or services, order fulfillment, order cancellation by Seller or the Buyer, returns, refunds and adjustments, and feedback concerning experiences with Seller personnel, policies or processes. In performing customer service, Seller will always present itself as a separate entity from Direct. As between Seller and Direct, Direct will be solely responsible for all customer service issues relating to any payment, debiting or crediting, and Buyer disputes. Remittance of Sales Proceeds & Refunds Direct will remit to Seller on a bi-weekly (14 day) basis, any sales proceeds received by Direct but not previously remitted to Seller as of the date that is two (2) business days prior to the date of remittance (the "Remittance Calculation Date") (which Seller will accept as payment in full for Seller transactions), less: (a) applicable Seller Fees; (b) any other applicable fees. Transaction Processing Service By registering for or using the Direct Marketplace Services, Seller authorizes Direct to act as your agent for purposes of processing payments, refunds and adjustments for Seller transactions, receiving and holding sales proceeds on the Sellers behalf, remitting sales proceeds to the Sellers bank account, and paying Direct amounts Seller owes. Direct shall transfer funds via ACH. Opt-Out Direct will have strategic partnerships with companies to process orders for their customers. These buyers may mark up prices for resell or have fees associated with this resell process. Terms will be made available when necessary for these buyers. You have the option to opt -out from these transactions if you so choose. Direct – Standard Business Terms BUYING ON DIRECT Buyer Fees • Currently there are no buyer fees. Want List Buyer will upload want lists to the Direct Marketplace and select product for purchase that meets the Buyers criteria (Price, Quantity, Condition, and Shipping Mode). Purchase Buyer is agreeing to pay the stated price for product selected for purchase and any applicable shipping fees upon their submission of an order. Shipping and Handling Charges For products ordered by Buyers, Direct determines the shipping and handling charges. Buyer will pay the designated shipping rate based on the requested mode (Standard or Expedited). Note that shipping rates for additional items is per Seller per order. • Standard Shipping = $2.99 for first item and $1.99 per item for each additional, per merchant • Expedited Shipping = $4.99 for first item and $3.99 per item for each additional, per merchant Shipping Standards All items should be shipped by the Seller within 48 hours of the data of the order. All items should be shipped through a traceable method and tracking information must be reported back through the Direct Marketplace within 48 hours of ship date. • Standard Shipping is defined as a 7-14 day delivery window • Expedited Shipping is defined as a 2-4 day delivery window Cancellations, Returns and Refunds Seller will accept and process cancellations, returns, refunds and adjustments in accordance with the Direct Refund Policies. Seller will determine and calculate the amount of all refunds and adjustments (including any shipping and handling or other charges) or other amounts to be paid by Seller to Buyers in connection with the their transactions. Seller will route all payments to Buyers in connection with their transactions through the Site. Direct will provide those payments to the Buyers and Seller will reimburse Direct for all amounts Direct pays. Seller will promptly provide refunds and adjustments that Seller is obligated to provide under the applicable Direct Refund Policies and as required by Law. All Sellers must honor a 7 day mutual return policy. Buyer has must request return authorization within 7 days from the delivery date and Seller must process the return within 7 days of receiving the return from the Seller. Payment Terms Buyer authorizes Direct to act as your agent for purposes of processing payments, refunds and adjustments for orders. Payments for purchases shall be made by transferring money from the Buyer’s bank account. Buyer may be charged a return fee for any ACH debit transfer request that is rejected by the holding financial institution for any reason (a "Return Fee"). You authorize us to debit your account or to make an electronic fund transfer (or an equivalent bank draft) from your bank account to collect such return fee. Buyer Responsibilities If Buyer receives a refund for a purchase but Buyer fails to return the product to the Seller, Direct may charge you for the product consistent with the original order. If you are a Buyer and you are unhappy with any goods or services that you have purchased using our service, you should contact Direct Customer Service.
Accept
Seller Contract
PARTICIPATION AGREEMENT FOR DIRECT MARKETPLACE By registering to sell on the Direct Marketplace and any related applications owned or operated by or on behalf of Direct Online, LLC or Direct Online Related Companies, a Washington limited liability company (“Direct”), located at www.directsalesonline.com (collectively, the “Website”), you (referred to herein as “Company” and “you”) agree to be bound by this Direct Marketplace Participation Agreement (collectively, with any Attachments or Exhibits, the “Agreement”), as may be amended, which are by and between Direct (together with its affiliates, “Direct,” “we,” “us,” and “our”) and Company (each, a “Party,” and collectively, the “Parties”). This Agreement is effective as of the date Company registers for the Website via the Portal or otherwise accepts the Agreement (the “Effective Date”). Capitalized terms not defined in this Agreement will have the meanings given to them in Appendix A. Direct reserves the right to change any of the terms and conditions contained in this Agreement or any policies or guidelines governing the Website or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Website. All notice of changes to this Agreement will be posted on the Website for thirty (30) days. You are responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you. YOUR CONTINUED USE OF THIS WEBSITE AND THE SERVICES FOLLOWING DIRECT’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES OR THIS SITE. SECTION 1 DIRECT’S RESPONSIBILITIES 1.1. Website Hosting and Maintenance. Direct will provide Company with access to the Website as a platform for Company to post Merchandise Listings and facilitate the sale of Company’s Merchandise to Users. Direct will be responsible for all operating functions of the Website. Direct may, in its sole discretion, (i) ask Users to rate and/or provide comments regarding Merchandise and/or Company’s performance, using any metrics determined by Direct in its sole discretion, and (ii) post any resulting ratings and/or comments on the Website for public display. 1.2. User Orders and Payment. Direct will process User Orders (as defined in Section 2.3.1) and collect all amounts due from Users for Merchandise ordered from Company through the Website. Within fourteen (14) days thereafter, Direct will remit such amounts, less any amounts owed to Direct by Company, by electronic funds transfer to the bank account identified by Company in the Portal. Company hereby appoints Direct as an agent of Company for the sole and express purpose of receiving payments from Users for Company’s Merchandise sold on the Website. Company acknowledges that, as between Company and a User who purchases Merchandise from Company, Direct’s receipt of funds from the User is deemed the receipt of funds by Company. SECTION 2 COMPANY’S RESPONSIBILITIES 2.1. Enrollment; Account Activation. Company will provide the information requested on the Portal during Account activation, including its legal business name, address, primary contacts, phone number(s), banking credentials, routing number(s), and e-mail address(s) of its primary contacts, and agrees to update such information promptly. Company will not use or incorporate any Direct Mark, in whole or in part, in Company’s account name or any other User-facing identification. Company agrees to secure the password used to access its Account and not to disclose it to any third party (other than any authorized third-party service providers to Company). Company acknowledges and agrees to be strictly liable for all uses or actions occurring through the Company’s Account. 2.2. Merchandise Listings. Company will create Merchandise Listings via the Portal for all Merchandise it intends to sell on the Website. All Merchandise Listings will comply with the specifications and policies posted in the Portal, and such Merchandise Listings will not use or incorporate any Direct Marks. Company is responsible for promptly updating its Merchandise Listing(s) to ensure the Merchandise Listing and inventories are at all times accurate. Company will not list any Merchandise it does not currently have in stock. For purposes of its compliance with its obligations in Sections 2.2.2, 6.2.2 and 9 of this Agreement, Company will document, record and retain for the duration of this Agreement plus five years the full legal name, physical address, email address and telephone number of each source from which each item of Merchandise was acquired by Company (“Source Information”). Upon any claim that the display, publication, sale or offering for sale any particular item of Merchandise was or is in violation of any law or contract, Company will provide Source Information regarding that Merchandise to Direct upon request. Company acknowledges that failure to abide by the terms of this Agreement may subject Company to penalties and legal liability, and that Direct may reject, remove or censor any Merchandise Listing for any reason, in Direct’s sole discretion. 2.2.1. Merchandise Pricing. Company is responsible to establish prices for its Merchandise. Company will enter pricing via the Portal, unless another method is approved in writing by Direct. (i) Most Favorable, Best Pricing or Equivalent Pricing. Company will maintain parity between the Merchandise and identical merchandise offered through Company’s other sales distribution channels, including Company’s own website(s) or any third-party website(s). For avoidance of doubt, the term ‘parity’ as used herein means that sales prices, product quality (including quality assurances), and shipping and handling charges associated with a Merchandise Listing (including any ‘low price’ guarantees, rebates, free or discounted shipping and handling, or other benefits) are equivalent to those associated with identical Merchandise offered by Company through other outlets or other websites. (ii) Company Pricing Errors. If Company uploads or otherwise provides incorrect pricing information to a Merchandise Listing (a “Company Pricing Error”), Direct may, at Company’s expense, take any commercially reasonable action necessary to avoid and/or repair harm to Direct due to the Company Pricing Error. Such action may include requiring Company to honor all Merchandise purchases occurring due to Company Pricing Errors and compensating Users for any inconvenience caused by such errors. Company will also reimburse Direct for all costs Direct incurs as a result of Company Pricing Errors. 2.2.2. Prohibited Merchandise. Unless otherwise expressly permitted in writing by Direct, Company will not promote, offer for sale, or provide Direct with Merchandise Listings that (a) contain any Prohibited Merchandise, (b) promote or engage in any deceptive trade practice (including spoofing, slamming, cramming, phishing, attempting to scam or defraud a User into surrendering private and/or personal information); or (c) promote or engage in any other illegal activity. 2.2.3. Permits and Licenses; Taxes. Company will, at its own expense, obtain all permits, certificates and licenses required to operate its business in accordance with Applicable Law, and will pay and discharge all applicable taxes and assessments which may be due for selling or offering of its Merchandise for sale on or through the Website. It is Company’s responsibility to determine the states in which there is or could be an obligation to collect and remit state and local sales and use taxes (“Taxes”) from a sale of Merchandise. Company is solely responsible for collecting, remitting the tax to the applicable taxing jurisdiction and for filing all appropriate reports. If a taxing authority requires Direct to pay any of Company’s taxes, Company will promptly reimburse Direct for the amounts paid. Company acknowledges and agrees that tax-related data is provided through Direct’s third-party service provider(s) (“Providers”). While Providers will use reasonable efforts to ensure that the tax data is current and accurate, Company acknowledges and agrees that Direct and its Providers do not provide tax advice, and that Company is solely responsible for determining the applicability and accuracy of any tax data. As a condition of receiving the tax data, Company agrees to fully and forever waive any Liabilities against Direct and the Providers arising from Company’s use of and reliance on such tax data and further agrees to defend, indemnify and hold Direct and the Providers harmless from Liabilities arising from such use or reliance. 2.3. Shipping. Company is responsible for all aspects of shipping, including providing adequate packaging, tagging, insurance, labeling and packing of the Merchandise in compliance with the Company Specifications and Applicable Law. 2.3.1. Process. When Company receives notice of an order from a User (a “User Order”) at the e-mail address specified by Company in the Portal, Company will process and fulfill the User Order in compliance with the Company Shipping and Delivery Policy, and will make the Merchandise requested in a User Order (“Requested Merchandise”) available for pick up by a common carrier to deliver to the applicable User or to following User’s shipping instructions. Company will not substitute any item(s) for the Requested Merchandise. Title to and risk of loss of and/or damage to the Requested Merchandise will remain with Company until accepted by the User. Direct will not have title to, or be deemed the legal owner or seller of, any Merchandise at any time under the terms of this Agreement. 2.3.2. Overdue Orders. Direct may cancel any User Order that fails for any reason to ship within the applicable shipping period indicated in the Company Specifications, and Direct will have no duty to compensate Company for any such cancelled orders. It is Company’s responsibility to monitor all orders and ensure all shipments are made within the timeframes indicated in the Company Specifications. 2.3.3. Delivery Errors, Non-Conformities. Company is responsible for any non-delivery, delivery error, mistake, theft or act in connection with the fulfillment and delivery of its Merchandise, except to the extent caused by Direct’s failure to properly process a User’s address verification in the course of the purchase of the Merchandise. 2.3.4. Marketing Matters. Company may not include any marketing, promotional materials, or any other solicitations with the Requested Merchandise shipped to Users. 2.4. User Service Issues. Company will resolve all User service issues arising from, or in connection with Company’s promotion, sale, order fulfillment and/or delivery of Merchandise. Direct will direct Users who contact it with service issues related to Merchandise sold pursuant to this Agreement to contact Company via the contact information Company has provided in the Portal. If Company fails to respond to User service issues, or requests from Direct related to same, Direct may take any actions necessary to ensure compliance, up to and including suspending or terminating Company’s access to their Account. In the event that Direct believes in its sole discretion that a transaction represents fraudulent activity, Direct may, but is not obligated to, prohibit the transaction. Direct will not be liable to Company for any such action that results in or prevents a User from completing an order or causes a User to cancel an order. 2.5. Chargebacks. If Direct notifies Company of a User chargeback or chargebacks received due to non-delivery, or other dispute related to Company’s transactions, Company must present Direct with all information requested in the chargeback notification within five (5) business days of receiving notice. If Company fails to comply with Direct’s request, Company will reimburse Direct for the User chargeback(s) in accordance with the settlement and payment terms herein. Notwithstanding the other provisions of this paragraph, Company will not be responsible for chargebacks due to (a) theft and/or unauthorized use of a third party’s credit card information solely caused by Direct (except to the extent such theft and/or unauthorized use is attributable to Company), and (b) non-delivery due to Direct’s failure to send the order information to Company. 2.6. Company Marketing; Restrictions; Prohibition on Use of User Information. Company (or any of its affiliates or related parties) may not directly or indirectly disclose or use any User information or other transaction information, except as necessary to fulfill its fulfillment and customer service obligations under this Agreement. Company may not use any User information for any of its own marketing or promotional activities. To the extent Company obtains User information outside of its relationship with Direct or the Website, the terms of this section will not prevent Company from using such User information, provided that Company may not explicitly target Users on the basis of their purchases or presence on the Website. 2.7. Refunds; Returned Merchandise. Company will submit a return policy (the “Company Return Policy”) using the form provided on the Portal. The Company Return Policy must (i) apply to all Merchandise; and (ii) outline the process for Users to return the Merchandise directly to Company. Company agrees to honor all User returns in accordance with the Company Return Policy published at the time of the User’s purchase of Merchandise. 2.8. Recalled Merchandise; Defective Merchandise. Company will immediately notify Direct of any recalls affecting the Merchandise it has listed on the Direct Marketplace. Notwithstanding the foregoing, Company is responsible for all defective or recalled Merchandise, including any costs associated with recalls of its Merchandise, all liability related to its Merchandise (regardless of whether such Merchandise is defective), and will bear all costs associated in notifying Users and handling such recalls of its Merchandise. SECTION 3 FEES AND COMMISSIONS 3.1. Monthly Subscription Fee. Direct will not charge a subscription fee. 3.2. Commissions. Company will pay commissions to Direct according to the “Commission Rate Schedule” available in the Portal, which is subject to change. Any revised Commission rates are effective as of the date posted. 3.3. Right of Recoupment and Set-Off. Direct and Company acknowledge and agree that Direct has the right to recoup or set-off any payments owed to Company by the amount of any commission payments, Company obligations owed according to the defense and indemnity terms herein, and any other monetary obligations owing by Company to Direct. Any remaining outstanding funds due to Direct after recoupment or set-off will be paid by Company promptly upon demand by Direct. Direct may obtain reimbursement of any amounts owed by Company to Direct by deducting from future payments owed to Company, reversing any credits to Company’s account, charging Company’s account, or seeking such reimbursement from Company by any other lawful means. Company hereby authorizes Direct to use any or all of the foregoing methods to seek reimbursement, including the debiting of Company’s credit card or bank account as applicable. SECTION 4 INTELLECTUAL PROPERTY 4.1. Grant of License by Direct. Direct hereby grants to Company a non-exclusive, revocable, non-transferable license to promote and sell Merchandise on or through the Website to Users, subject to the terms of this Agreement. 4.2. Grant of License by Company. Company hereby grants to Direct a royalty-free, non-exclusive, irrevocable, perpetual, worldwide, right to use and to reproduce, modify, display, distribute, perform, re-format, create derivative works of or otherwise commercially or non-commercially exploit in any manner the Company Content and Merchandise Listings with the right to sublicense such rights through multiple tiers; provided, however, that Direct will not alter any Company Marks from the forms provided by Company except to the extent necessary for presentation, so long as the relative proportions of the marks remain the same; provided further that nothing in this Agreement will restrict Direct’s right to use the Company Content to the extent such use is allowable without a license from Company under Applicable Law. 4.3. Intellectual Property Rights. All right, title and interest in and to the Website, and all data collected or stored in connection with the Website and any other Direct websites, any of its affiliates’ websites, and any other service or website associated with the foregoing, including mobile sites or microsites, and all IP Rights associated with any of the foregoing, will at all times remain the exclusive property of Direct and, except as expressly provided herein, nothing will be construed as conferring on Company any license to Direct’s IP Rights, whether by estoppel, implication or otherwise. If Company is deemed to have any ownership interest or rights in any of the foregoing, or any part thereof, then Company will assign, and Company does hereby assign, all of such ownership interest and rights to Direct, including all Company IP Rights therein. All rights not expressly granted herein are reserved to Direct. 4.4. Ownership of Company Content. Direct and Company each agree and acknowledge that, as between Direct and Company, Company owns all Company Content and Company Marks, subject to the License granted herein. SECTION 5 TERM AND TERMINATION 5.1. Term. The term of this Agreement will commence on the Effective Date, and will continue in effect until such time as revised by Direct, or terminated by either Party in accordance with the notice and termination requirements set forth below (the “Term”). 5.2. Termination. Company may terminate this Agreement at any time upon two (2) business days’ notice to Direct, in which case Company will process and fulfill all open orders until the termination is effective. Direct may terminate this Agreement (i) at any time upon notice to Company; or (ii) if Direct determines in its discretion that Company has breached any term of this Agreement, immediately, including the right to cancel all open User orders for the Merchandise, and to remove all of Company’s Merchandise Listings from the Website. 5.3. Survival. Any termination of this Agreement will be without prejudice to the rights of either Party against the other in respect of any antecedent claim or breach of any of the provisions of this Agreement. Any obligations of the Parties relating to limitations on liability, confidentiality and indemnification, as well as any other obligations under this Agreement that by their nature are intended to survive, including any payment or User services obligation in connection with the sale of Merchandise hereunder, will survive termination of this Agreement. SECTION 6 REPRESENTATIONS AND WARRANTIES 6.1. Mutual. Each Party represents and warrants that it has the authority to enter into the Agreement and to perform the acts required of it, and the execution of this Agreement by each Party, and the performance by such Party of its obligations and duties, does not and will not violate any other agreement to which such Party is otherwise bound. 6.2. Company. Company further represents and warrants that: 6.2.1. The Company Listings and all information and Company Content provided to Direct is accurate, complete, current, and is not misleading or deceptive in any manner; 6.2.2. The publication, reproduction, display, modification, distribution, sale, offer for sale, or transmission of Company Content, Merchandise or a Merchandise Listing does and will not (a) infringe, misuse, dilute, misappropriate, or otherwise violate any intellectual property rights of third parties, including copyright, patent, trademark, trade secret, domain name, right of publicity, or confidentiality or other proprietary rights; (b) contain defamatory or discriminatory content; (c) constitute an invasion of a party’s rights of privacy or publicity; and/or (d) reflect unfavorably on Direct, the Website and/or other sellers selling Merchandise on the Website; 6.2.3. Company will at all times fully comply with Applicable Law, including applicable privacy laws; 6.2.4. Company will include in Merchandise Listings all disclosures associated with the Merchandise as required by Applicable Law; 6.2.5. All Merchandise sold pursuant to this Agreement is not subject to any health, safety or product quality recall; 6.2.6. Company will perform all of its obligations hereunder in a professional and commercially reasonable manner, in accordance with generally accepted industry standards; 6.2.7. Company will maintain at a minimum such product liability insurance coverage limits, general liability, vehicle, and worker’s compensation coverage limits in amounts that are the greater of the amount required by Section 9.5 of this Agreement or as required by Applicable Law to operate its business; 6.2.8. All information or data uploaded or transmitted by or on behalf of Company to the Portal, Website, or any other Direct website, application, or system, or to a User is free from any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Portal, Website, any other Direct website, application, or system. Company will not use the Website to violate the security of, or gain unauthorized access to, any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes to use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Website, collect any information about other Users (including usernames and/or email addresses), or to reformat or frame any portion of the Websites), or use the Websites and/or any other Company Content, intentionally or unintentionally, to violate any Applicable Law. SECTION 7 DISCLAIMER OF WARRANTIES Except as expressly set forth in this Agreement, DIRECT MAKES NO WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH REGARD TO THE WEBSITE, ANY SERVICES, AND/OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH ANY LINKS THEREON, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE WEBSITE IS PROVIDED BY DIRECT ON AN “AS IS” AND “AS AVAILABLE” BASIS AND COMPANY’S USE OF THE WEBSITE IS SOLELY AT COMPANY’S OWN RISK. DIRECT DOES NOT WARRANT THAT COMPANY’S USE OF THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, NOR DOES DIRECT MAKE ANY WARRANTY OR GUARANTEE WITH REGARD TO RESULTS THAT MAY BE OBTAINED BY USE OF THE WEBSITE, OR THE SALE OF ANY MERCHANDISE ITEMS BY COMPANY TO USERS THEREON, OR ANY SERVICES PROVIDED BY DIRECT TO COMPANY IN CONNECTION THEREWITH, INCLUDING ANY WARRANTY WITH RESPECT ANY MERCHANDISE LISTING OR ANY RESULTS COMPANY MAY OBTAIN UNDER THIS AGREEMENT. THE FUNCTIONALITY PROVIDED BY THE WEBSITE OR DIRECT, OR ITS DESIGNEES’ SERVERS IS NOT AN ARCHIVE; DIRECT IS SOLELY RESPONSIBLE FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ALL INFORMATION, INCLUDING COMPANY CONTENT PROVIDED TO DIRECT. SECTION 8 LIMITATION OF LIABILITY IN NO EVENT WILL DIRECT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS), EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DIRECT’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX-MONTH PERIOD PAID BY COMPANY TO DIRECT IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM. SECTION 9 DEFENSE AND INDEMNIFICATION 9.1. Obligation. Company will fully defend, indemnify and hold harmless Direct (“Indemnified Party”) and all Indemnified Parties from and against all third-party Liabilities, whether actual or alleged (even though such allegations may be false, fraudulent or groundless), arising out of or relating to any of the following (collectively, the “Claims”): (i) infringement, misuse, dilution, misappropriation, or other violation of any intellectual property rights of third parties, including copyright, patent, trademark, trade secret, domain name, right of publicity, or confidentiality or other proprietary rights; (ii) death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any latent or patent defect in Merchandise, including improper manufacture, construction, assembly, installation, repair, display, packaging, service or design of Merchandise, failure of Merchandise to comply with any specification or samples or with any express or implied warranties of Company, or any claim of strict liability in tort relating to Merchandise; (iii) any violation by Company (or its affiliates, or the respective Personnel of each of them) in the manufacture, construction, assembly, installation, repair, display, packaging, possession, service, design, use, delivery or sale of Merchandise (“Production or Sale”) of any Applicable Law of the United States, its territories or any other country in which the Production or Sale of Merchandise took place; (iv) the publication of Company Content and product information Company supplies to Direct to display in Merchandise Listings; (v) the packaging, tagging, labeling, packing, shipping, delivery and invoicing of Merchandise; (vi) failure to warn or to provide adequate warnings or instructions in the use, assembly, service or installation of Merchandise; (vii) the packaging, labeling or advertising claims made by Company; (viii) the display, assembly or installation of Merchandise, (ix) the assertion by a third party of a security interest, right of replevin, or other legal interest created by a factoring or other credit arrangement in any amount due Company under a vendor agreement; (x) a breach of any of Company’s representations and warranties contained herein; or (xi) Taxes or the collection, payment or failure to collect or pay Taxes. Notwithstanding the provisions of this Paragraph, Company will not be liable for damage to third parties to the extent such damage was solely and proximately caused by the sole negligence or willful misconduct of any Indemnified Party. 9.2. Process. In performing its obligations under Section 9.1, Company will retain defense counsel satisfactory to Direct and will, from time to time, provide reports, consult with Direct’s Personnel in conducting the defense of the Claims and otherwise cooperate fully with the reasonable requests of Direct; provided that only with respect to claims arising under Section 9.1(i) above, Direct may, at its election and at any time, take control of the defense and investigation of said Claims and employ attorneys and other consultants, investigators and experts of its own choice to manage and defend any such Claims at the cost and expense of Company. In any case in which Company’s indemnity obligation set forth in Section 9.1 is not enforceable under Applicable Law and in which any Indemnified Party and Company are found to be liable to a third party with respect to Merchandise, then Direct and Company will each contribute to the payment of any judgment awarded in favor of such third party in proportion to the comparative degree of culpability of the Indemnified Parties and Company. 9.3. Independent Obligation. The obligations of Company to defend, indemnify, and hold harmless the Indemnified Parties under this Agreement are independent of each other and any other obligation of the Parties herein. 9.4. Settlement. Company may settle, without Direct’s consent, Claims if the only obligation under such settlement is the payment of monies by Company and such settlement provides for a full release of Company and the Indemnified Parties. All other settlements, including any that would create obligations of (or restrictions upon) the Indemnified Parties or restrictions upon the sale (or disposition) of the Merchandise, will require Direct’s prior written consent. 9.5. Insurance Requirements. Company will maintain at a minimum such product liability insurance coverage limits as defined in the Marketplace Vendor Information Guide, available through the Portal. Such policy must provide that the coverage thereunder will not be terminated without at least thirty (30) days’ prior written notice to Direct. SECTION 10 CONFIDENTIALITY 10.1. Definition and Obligations. “Confidential Information” means any and all technical or business data or information furnished, in whatever form or medium, by Direct regardless of whether marked or identified as “Confidential,” including Confidential Personal Information (as defined below), the terms of this Agreement, and the operations and technology to be utilized in connection with the Portal and Website. Company agrees to: (i) treat as confidential, and preserve the confidentiality of all Confidential Information and not disclose it to any third party; (ii) use the Confidential Information solely for the purposes of this Agreement; and (iii) not copy such Confidential Information unless authorized by Direct. 10.2. Treatment of Confidential Information. The obligations with respect to Confidential Information will not apply to any information that: (i) is already in Company’s possession, as shown by documentation and without obligation of confidentiality; (ii) without action or fault on Company’s part, is or becomes publicly available; or (iii) Company has obtained from a third person without breach by such third person of an obligation of confidence. Company must promptly return or destroy all Confidential Information at Direct’s request. 10.3. Confidential Personal Information. In addition to the obligations related to Confidential Information, additional obligations apply to Confidential Personal Information. All information related to Users, including names, addresses, telephone numbers, account numbers, and demographic, financial and transaction information is “Confidential Personal Information.” Company will not duplicate or incorporate the Confidential Personal Information into its own records or databases. Company will restrict disclosure of Confidential Personal Information to its employees who have a need to know such information for Company to perform under this Agreement. Company is liable for any unauthorized disclosure or use of Confidential Personal Information by any of its employees. Except as necessary to fulfill its Customer Service obligations herein, Company will not disclose the Confidential Personal Information to any third party, including any affiliate or subsidiary of Company, permitted subcontractor, or other representative without the prior written consent of Direct. Unless otherwise prohibited by law, Company will: (i) immediately notify Direct of any legal process served on Company for the purpose of obtaining Confidential Personal Information; and (ii) permit Direct adequate time to exercise its legal options to prohibit or limit such disclosure. Company will notify Direct promptly upon the discovery of the loss, unauthorized disclosure or unauthorized use of the Confidential Personal Information and agrees to indemnify and hold Direct harmless for such loss, unauthorized disclosure or unauthorized use of Confidential Personal Information, including attorneys’ fees. 10.4. No Publicity. Without limiting the foregoing, Company will not disclose the existence or terms of this Agreement or any other information regarding Company’s sale of Merchandise on the Website, in any advertising, promotional or sales activity, publicity release, or other public communication without Direct’s prior written consent and approval in each instance. Direct has the right to review and approve any press release, marketing materials or related content that mentions Direct. 10.5. PCI Compliance. Company acknowledges that to the extent it receives any User credit card data in connection with the Agreement, Company is responsible for the security of the credit card data it receives and will comply with current Payment Card Industry (“PCI”) Data Security Standards (as updated by the PCI from time to time). In the event of a data breach of a User’s credit card information involving Company or Company’s IT system environment, Company will immediately notify Direct and cooperate fully with Direct and/or industry/government officials in a review and/or forensic investigation of Company’s system environment and/or processes. SECTION 11 MISCELLANEOUS 11.1. Use of Subcontractors. Company may use subcontractors in its performance under this Agreement, provided that (i) Company’s subcontractors will be required to adhere to the terms of the Agreement, and (ii) Company will be fully responsible for the acts and omissions of its subcontractors. Direct may require Company to cease use of any subcontractor for any reason, and may immediately suspend Company’s account, or terminate this Agreement in the event Company refuses to comply with any such request from Direct. 11.2. Force Majeure. Neither Party will be liable to the other for any failure to perform its obligations under this Agreement to the extent such failure is due to war, riots, embargoes, strikes or other concerted acts of workers, casualties, accidents or other causes to the extent that such failure and the consequences thereof are reasonably beyond the control and without the fault or negligence of the Party claiming excuse. 11.3. Invalidity; Waiver. No finding that any part of this Agreement is invalid will affect the remaining portions of this Agreement. Company may not assign or transfer any of its rights or obligations under this Agreement without written consent from Direct. Any such attempted assignment or transfer will be void, and Direct may immediately terminate this Agreement and Company’s access to the Portal without liability. The waiver by any Party of a breach of any provision of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor will any delay or omission by either Party to exercise or enforce any right or remedy hereunder operate as a waiver of any right or remedy. 11.4. Notice. 11.4.1. Unless otherwise noted in the Agreement, Direct will provide notices to Company at the address, email address, or fax number provided by Company to Direct at the time of enrollment. 11.4.2. Company must send all notices to Direct at: support@goDirect.com or through the address provided in the Portal, or such other address as provided by Direct from time to time. 11.5. Construction. This Agreement, the policies and procedures communicated through the Portal, and the Marketplace Vendor Guide, govern Company’s use of the Website to sell Merchandise to Users. In the event of a conflict between any terms herein, or any program specific policies and procedures communicated to Company via the Portal or the Marketplace Vendor Guide, the program specific policies and procedures will control. Direct may modify the terms and conditions of this Agreement, the Marketplace Vendor Guide, or its policies and/or procedures at any time by posting changes on the Portal. Company’s continued access and use of the Website after such posting will be construed as Company’s acceptance of such modifications made by Direct. It is Company’s responsibility to monitor the terms and conditions of this Agreement for changes from time to time. In some cases, Direct may, but is not obligated to, provide Company with notice of any changes to these Terms and Conditions. All notices provided by Direct through the Portal, or any communications by email, fax, or any other form of electronic communications by and between the Parties will satisfy any legal requirement that such communications be in writing. In this Agreement, “include,” “includes,” and “including” are inclusive and mean, respectively, “include without limitation,” “includes without limitation,” and “including without limitation” venue. 11.6. Governing Law Venue. This Agreement will be construed and enforced in accordance with the internal laws of the State of Washington, without regard to its conflict of law principles. Company and Direct agree that the state courts located in Clark County, Washington, and the federal courts located in the Western District of Washington are the proper and exclusive venue for any dispute concerning this Agreement, and hereby consent to such courts’ personal and subject matter jurisdiction thereof. 11.7. Relationship of Parties. The Parties to this Agreement are independent contractors, and no other relationship will be implied from this Agreement. Nothing contained in or done pursuant to this Agreement will be construed as creating a partnership, agency, or joint venture, and neither Party will become bound by any representation, statement, or act of the other Party. Company is responsible for all expenses necessary to fulfill its obligations under this Agreement. APPENDIX A – DEFINITIONS “Account” means Company’s Marketplace account, which is accessible through the Portal. “Agreement” has the meaning given in the preamble. “Applicable Law” means all requirements of federal, state, or other jurisdictional laws, regulations, ordinances, and administration orders and rules of the United States, its territories, and all other countries in which the Merchandise is produced, sold, or delivered. “Claims” has the meaning given it in Section 9.1. “Company” has the meaning given in the preamble. “Company Content” means all images, videos, text, Merchandise descriptions, and Merchandise-related data uploaded by Company to create its Merchandise Listings. “Company Marks” means all of Company’s domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names. “Company Shipping and Delivery Policy” means the policy located at www.directonlinellc.com, as updated by Direct from time to time. “Company Specifications” means all information related to order fulfillment, shipping times, and merchandise returns, as may be designated by Direct, or by Company, if applicable, via the Portal, and relating to Company’s Merchandise. “Confidential Information” has the meaning given in Section 10.1. “Confidential Personal Information” has the meaning given in Section 10.3. “Effective Date” has the meaning given in the preamble. “Direct” has the meaning given in the preamble. “Direct Marks” means all of Direct’s domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names. “Direct Parties” means Direct and all of its past, present and future parents, subsidiaries, affiliates, directors, officers, and employees. “Indemnified Party” has the meaning given in Section 9.1. “IP Rights” means all intellectual property rights which now or hereafter exist throughout the universe, whether conferred by operation of law, contract, or license, including rights of authorship, including copyrights, moral rights and mask-works, marks, cosmetic designs, ornamental appearance and trade dress, trade secret rights, inventions, and technology (whether patentable or not and whether or not reduced to practice), confidential information (as defined herein), software and databases, rights of publicity, patents, designs, algorithms, and other industrial property rights, and “rental” rights and rights to remuneration. “Liabilities” means all claims, actions, losses, expenses, costs or damages of every nature and kind whatsoever (including reasonable attorneys’ fees) asserted in any claim, action, lawsuit or proceeding. “Marketplace Vendor Guide” means the Direct Marketplace Vendor Information Guide, which contains additional policies and procedures for doing business via Direct Marketplace, and has been made available to Company via the Portal, and may be amended from time to time by Direct. “Merchandise” means the goods, offers and services Company markets and lists for sale to Users on the Website. “Merchandise Listings” means the offers created for display on the Website related to the sale of the Merchandise. “Party” and “Parties” have the meaning given to them in the preamble. “Personnel” means a Party’s employees, agents, officers, directors, or others who take action on behalf of the Party. “Portal” means the online interface by which Company accesses its Marketplace account, communicates with Direct, uploads its Company Content and Merchandise Listings, manages its User Orders, and other such activities related to this Agreement. “Prohibited Merchandise” means the items and categories listed on www.directonlinellc.com as updated by Direct from time to time as well as counterfeit goods. “Provider Parties” means Providers and all of their past, present and future parents, subsidiaries, affiliates, directors, officers, and employees. “Taxes” has the meaning given in Section 2.2.3. “User Order” has the meaning given in Section 2.3.1. “User” means any user or customer accessing the Website, or placing or receiving any order for Merchandise via the Website. “Websites” has the meaning given in the preamble.
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