Services Business Solutions Agreement for Seller

General Terms

 

This Machmall.Com Services Business Solutions Agreement (The "Agreement") Contains The Terms And Conditions That Govern Your Access To And Use Of The Services And Is An Agreement Between You Or The Business You Represent And Machmall.Com. By Registering For Or Using The Services, You (On Behalf Of Yourself Or The Business You Represent) Agree To Be Bound By The Terms Of This Agreement, Including The Service Terms And Program Policies That Apply For Each Country For Which You Register Or Elect To Use A Service (In Each Case, The "Elected Country").

 

As Used In This Agreement, "We," "Us," And "Machmall.Com" Means The Applicable Machmall.Com Contracting Party And Any Of Its Applicable Affiliates, And "You" Means The Applicant (If Registering For Or Using a Service As An Individual), Or The Business Employing The Applicant (If Registering For Or Using a Service As a Business) And Any Of Its Affiliates. Capitalized Terms Have The Meanings Given To Them In This Agreement. If There Is a Conflict Among Terms In This Agreement, The Program Policies Will Prevail Over Any Applicable Service Terms And The General Terms, And The Applicable Service Terms Will Prevail Over The General Terms.

 

1. Enrollment.

To Begin The Enrollment Process, You Must Complete The Registration Process For One Or More Of The Services. Use Of The Services Is Limited To Parties That Can Lawfully Enter Into And Form Contracts Under Applicable Law (For Example, The Elected Country May Not Allow Minors To Use The Services). As Part Of The Application, You Must Provide Us With Your (Or Your Business') Legal Name, Address, Phone Number And e-Mail Address. We May At Any Time Cease Providing Any Or All Of The Services At Our Sole Discretion And Without Notice.

 

2. Service Fee Payments; Receipt Of Sales Proceeds.

Fee Details Are Described In The Applicable Service Terms And Program Policies. You Will Use Only a Name You Are Authorized To Use In Connection With a Service And Will Update All Of The Information You Provide To Us In Connection With The Services As Necessary To Ensure That It At All Times Remains Accurate, Complete, And Valid.

If We Determine That Your Actions Or Performance May Result In Returns, Chargebacks, Claims, Disputes, Violations Of Our Terms Or Policies, Or Other Risks To Machmall.Com Or Third Parties, Then We May In Our Sole Discretion Withhold Any Payments To You For As Long As We Determine Any Related Risks To Machmall.Com Or Third Parties Persist. For Any Amounts That We Determine You Owe Us, We May (a) Charge Your Credit Card Or Any Other Payment Instrument You Provide To Us; (b) Offset Any Amounts That Are Payable By You To Us (In Reimbursement Or Otherwise) Against Any Payments We May Make To You Or Amounts We May Owe You; (c) Invoice You For Amounts Due To Us, In Which Case You Will Pay The Invoiced Amounts Upon Receipt; (d) Reverse Any Credits To Your Bank Account; Or (e) Collect Payment Or Reimbursement From You By Any Other Lawful Means. If We Determine That Your Account Has Been Used To Engage In Deceptive, Fraudulent, Or Illegal Activity, Or To Repeatedly Violate Our Program Policies, Then We May In Our Sole Discretion Permanently Withhold Any Payments To You. Except As Provided Otherwise, All Amounts Contemplated In This Agreement Will Be Expressed And Displayed In The Local Currency, And All Payments Contemplated By This Agreement Will Be Made In The Local Currency.

In Addition, We May Require That You Pay Other Amounts To Secure The Performance Of Your Obligations Under This Agreement Or To Mitigate The Risk Of Returns, Chargebacks, Claims, Disputes, Violations Of Our Terms Or Policies, Or Other Risks To Machmall.Com Or Third Parties. These Amounts May Be Refundable Or Nonrefundable In The Manner We Determine, And Failure To Comply With Terms Of This Agreement, Including Any Applicable Program Policies, May Result In Their Forfeiture.

As a Security Measure, We May, But Are Not Required To, Impose Transaction Limits On Some Or All Customers And Sellers Relating To The Value Of Any Transaction Or Disbursement, The Cumulative Value Of All Transactions Or Disbursements During a Period Of Time, Or The Number Of Transactions Per Day Or Other Period Of Time. We Will Not Be Liable To You: (i) If We Do Not Proceed With a Transaction Or Disbursement That Would Exceed Any Limit Established By Us For a Security Reason, Or (Ii) If We Permit a Customer To Withdraw From a Transaction Because An Machmall.Com Site Or Service Is Unavailable Following The Commencement Of a Transaction.

 

3. Term And Termination.

The Term Of This Agreement Will Start On The Date Of Your Completed Registration For Or Use Of a Service, Whichever Occurs First, And Continue Until Terminated By Us Or You As Provided In This Agreement (The "Term"). We May Terminate Or Suspend This Agreement Or Any Service For Any Reason At Any Time By Notice To You. You May Terminate This Agreement Or Any Service For Any Reason At Any Time By The Means Then Specified By Machmall.Com. Termination Or Suspension Of a Service Will Not Terminate Or Suspend Any Other Service Unless Explicitly Provided.

 

4. License.

You Grant Us a Royalty-Free, Non-Exclusive, Worldwide, Perpetual, Irrevocable Right And License To Use, Reproduce, Perform, Display, Distribute, Adapt, Modify, Re-Format, Create Derivative Works Of, And Otherwise Commercially Or Non-Commercially Exploit In Any Manner, Any And All Of Your Materials.

 

5. Representations.

You Represent And Warrant To Us That: (a) If You Are a Business, You Are Duly Organized, Validly Existing And In Good Standing Under The Laws Of The Country In Which Your Business Is Registered And That You Are Registering For The Service(s) Within Such Country; (b) You Have All Requisite Right, Power, And Authority To Enter Into This Agreement, Perform Your Obligations, And Grant The Rights, Licenses, And Authorizations In This Agreement; (c) You And All Of Your Subcontractors, Agents, And Suppliers Will Comply With All Applicable Laws In Your Performance Of Your Obligations And Exercise Of Your Rights Under This Agreement.

 

6. Indemnification.

You Release Us And Agree To Indemnify, Defend, And Hold Harmless Us, Our Affiliates, And Our And Their Respective Officers, Directors, Employees, Representatives, And Agents Against Any Claim, Loss, Damage, Settlement, Cost, Expense, Or Other Liability (Including, Without Limitation, Attorneys' Fees) (Each, a "Claim") Arising From Or Related To: (a) Your Actual Or Alleged Breach Of Any Obligations In This Agreement; (b) Any Of Your Sales Channels Other Than Machmall.Com Sites, Your Products (Including Their Offer, Sale, Performance, And Fulfillment), Your Materials, Any Actual Or Alleged Infringement Of Any Intellectual Property Rights By Any Of The Foregoing, And Any Personal Injury, Death, Or Property Damage Related Thereto; (c) Your Personnel (Including Any Act Or Omission Of Your Personnel Or Any Claim Brought Or Directed By Your Personnel); Or (d) Your Taxes. You Will Use Counsel Reasonably Satisfactory To Us To Defend Each Indemnified Claim. If At Any Time We Reasonably Determine That Any Indemnified Claim Might Adversely Affect Us, We May Take Control Of The Defense At Our Expense. You May Not Consent To The Entry Of Any Judgment Or Enter Into Any Settlement Of a Claim Without Our Prior Written Consent, Which May Not Be Unreasonably Withheld.

 

7. Disclaimer & General Release.

The Machmall.Com Sites And The Services, Including All Content, Software, Functions, Materials, And Information Made Available On Or Provided In Connection With The Services, Are Provided "As-Is." As A User Of The Services, You Use The Machmall.Com Sites, And Seller Central At Your Own Risk. To The Fullest Extent Permissible By Law, We And Our Affiliates Disclaim: (i) Any Representations Or Warranties Regarding This Agreement, The Services Or The Transactions Contemplated By This Agreement, Including Any Implied Warranties Of Merchantability, Fitness For A Particular Purpose, Or Non-Infringement; (Ii) Implied Warranties Arising Out Of Course Of Dealing, Course Of Performance, Or Usage Of Trade; And (Iii) Any Obligation, Liability, Right, Claim, Or Remedy In Tort, Whether Or Not Arising From Our Negligence. We Do Not Warrant That The Functions Contained In The Machmall.Com Sites And The Services Will Meet Your Requirements Or Be Available, Timely, Secure, Uninterrupted, Or Error Free, And We Will Not Be Liable For Any Service Interruptions, Including But Not Limited To System Failures Or Other Interruptions That May Affect The Receipt, Processing, Acceptance, Completion, Or Settlement Of Any Transactions.

 

8. Limitation Of Liability.

We Will Not Be Liable (Whether In Contract, Warranty, Tort (Including Negligence, Product Liability, Or Other Theory), Or Otherwise) To You Or Any Other Person For Cost Of Cover, Recovery, Or Recoupment Of Any Investment Made By You Or Your Affiliates In Connection With This Agreement, Or For Any Loss Of Profit, Revenue, Business, Or Data Or Punitive Or Consequential Damages Arising Out Of Or Relating To This Agreement, Even If Machmall.Com Has Been Advised Of The Possibility Of Those Costs Or Damages. Further, Our Aggregate Liability Arising Out Of Or In Connection With This Agreement Or The Transactions Contemplated Will Not Exceed At Any Time The Total Amounts During The Prior Six Month Period Paid By You To Machmall.Com In Connection With The Particular Service Giving Rise To The Claim.

 

9. Confidentiality.

During The Course Of Your Use Of The Services, You May Receive Information Relating To Us Or To The Services, Including But Not Limited To Machmall.Com Transaction Information, That Is Not Known To The General Public ("Confidential Information"). You Agree That: (a) All Confidential Information Will Remain Machmall.Com's Exclusive Property; (b) You Will Use Confidential Information Only As Is Reasonably Necessary For Your Participation In The Services; (c) You Will Not Otherwise Disclose Confidential Information To Any Other Person; And (d) You Will Take All Reasonable Measures To Protect The Confidential Information Against Any Use Or Disclosure That Is Not Expressly Permitted In This Agreement. You May Not Issue Any Press Release Or Make Any Public Statement Related To The Services, Or Use Our Name, Trademarks, Or Logo, In Any Way (Including In Promotional Material) Without Our Advance Written Permission, Or Misrepresent Or Embellish The Relationship Between Us In Any Way.

 

10. Force Majeure.

We Will Not Be Liable For Any Delay Or Failure To Perform Any Of Our Obligations Under This Agreement By Reasons, Events Or Other Matters Beyond Our Reasonable Control.

 

11. Relationship Of Parties.

Subject To The Transaction Processing Service Terms (If The Elected Country For a Service Is The United States), You And We Are Independent Contractors, And Nothing In This Agreement Will Create Any Partnership, Joint Venture, Agency, Franchise, Sales Representative, Or Employment Relationship Between Us. You Will Have No Authority To Make Or Accept Any Offers Or Representations On Our Behalf. This Agreement Will Not Create An Exclusive Relationship Between You And Us. Nothing Expressed Or Mentioned In Or Implied From This Agreement Is Intended Or Will Be Construed To Give To Any Person Other Than The Parties To This Agreement Any Legal Or Equitable Right, Remedy, Or Claim Under Or In Respect To This Agreement. This Agreement And All Of The Representations, Warranties, Covenants, Conditions, And Provisions In This Agreement Are Intended To Be And Are For The Sole And Exclusive Benefit Of Machmall.Com, You, And Customers. As Between You And Us, You Will Be Solely Responsible For All Obligations Associated With The Use Of Any Third Party Service Or Feature That You Permit Us To Use On Your Behalf, Including Compliance With Any Applicable Terms Of Use. You Will Not Make Any Statement, Whether On Your Site Or Otherwise, That Would Contradict Anything In This Section.

 

12. Password Security.

Any Password We Provide To You May Be Used Only During The Term To Access Seller Central To Use The Services, Electronically Accept Your Transactions, And Review Your Completed Transactions. You Are Solely Responsible For Maintaining The Security Of Your Password. You May Not Disclose Your Password To Any Third Party (Other Than Third Parties Authorized By You To Use Your Account In Accordance With This Agreement) And Are Solely Responsible For Any Use Of Or Action Taken Under Your Password. If Your Password Is Compromised, You Must Immediately Change Your Password.

 

 

You May Not Assign This Agreement, By Operation Of Law Or Otherwise, Without Our Prior Written Consent. Subject To That Restriction, This Agreement Will Be Binding On, Inure To, And Be Enforceable Against The Parties And Their Respective Successors And Assigns. We May Perform Any Of Our Obligations Or Exercise Any Of Our Rights Under This Agreement Through One Or More Of Our Affiliates. Our Failure To Enforce Your Strict Performance Of Any Provision Of This Agreement Will Not Constitute a Waiver Of Our Right To Enforce Such Provision Or Any Other Provision Of This Agreement Subsequently.

 

We Have The Right In Our Sole Discretion To Determine The Content, Appearance, Design, Functionality, And All Other Aspects Of The Services, Including By Redesigning, Modifying, Removing, Or Restricting Access To Any Of Them.

 

This Agreement Incorporates And You Accept The Applicable Service Terms And Program Policies, Which Machmall.Com May Modify From Time To Time. If Any Provision Of This Agreement Is Deemed Unlawful, Void, Or For Any Reason Unenforceable, Then That Provision Will Be Deemed Severable From These Terms And Conditions And Will Not Affect The Validity And Enforceability Of Any Remaining Provisions.

 

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